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State v. Nielsen

Supreme Court of Nebraska

September 14, 2018

State of Nebraska, appellee,
v.
Matthew W. Nielsen, appellant.

         1. Appeal and Error. Where no timely statement of errors is filed in an appeal from a county court to a district court, appellate review is limited to plain error.

         2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate the Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court's determination.

         3. Constitutional Law: Courts: Search and Seizure: Police Officers and Sheriffs: Evidence. A court may decline to apply the exclusionary rule when evidence is obtained pursuant to an officer's objective and reasonable reliance on a law that is not clearly unconstitutional at the time.

         4. Appeal and Error. An appellate court does not consider errors which are argued but not assigned.

         5. Search and Seizure: Proof. The State has the burden of showing that the good faith exception applies.

          Appeal from the District Court for Lancaster County, Andrew R. Jacobsen, Judge, on appeal thereto from the County Court for Lancaster County, Timothy C. Phillips, Judge. Judgment of District Court affirmed.

          John S. Berry, of Berry Law Firm, for appellant.

         [301 Neb. 89] Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.

         INTRODUCTION

         Matthew W. Nielsen was convicted for driving under the influence, after having submitted to a pre-Birchfield blood draw.[1] Based upon the exclusionary rule's good faith exception, the county court denied Nielsen's motion to suppress. On appeal, the district court affirmed. On appeal to this court, Nielsen contends that the exception does not apply and that the State failed to raise the issue in the county court. Because our holding in State v. Hoerle[2] controls and because the State sufficiently raised the issue, the county court correctly denied the motion and the district court properly affirmed. Therefore, we also affirm.

         BACKGROUND

         Arrest

         On December 17, 2015, a police officer conducted a traffic stop and arrested Nielsen under suspicion of drunk driving. Ultimately, the arresting officer took Nielsen to a hospital. There, he read the "Post Arrest Chemical Test Advisement Form" to Nielsen. Nielsen signed the form and agreed to a blood draw.

         Motion to Suppress

         Based upon the results of the blood test, the State charged Nielsen in the county court with driving under the influence. Nielsen moved to suppress evidence obtained from the traffic [301 Neb. 90] stop and warrantless ...


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