State v. Au
| Citation | 285 Neb. 797,829 N.W.2d 695 |
| Decision Date | 03 May 2013 |
| Docket Number | No. S–12–040.,S–12–040. |
| Parties | STATE of Nebraska, appellee, v. Doan Q. AU, appellant. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 797]1. 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 Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
2. Statutes. The interpretation of a statute presents a question of law.
3. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.
4. Police Officers and Sheriffs: Probable Cause. Probable cause merely requires that the facts available to the officer would cause a reasonably cautious person to believe that the suspect has committed an offense; it does not demand any showing that this belief be correct or more likely true than false.
5. Statutes. Statutory language is to be given its plain and ordinary meaning.
6. Statutes. Absent a statutory indication to the contrary, words in a statute will be given their ordinary meaning.
7. Words and Phrases. “Practicable” generally means capable of being done, effected, or put into practice with the available means, i.e., feasible.
8. Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause.
9. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. Under the Fourth Amendment, a policeman who lacks probable cause but whose observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion.
10. Investigative Stops. An investigatory stop and resulting inquiry must be reasonably related in scope to the justification for their initiation.
11. Motor Vehicles: Investigative Stops: Probable Cause. Observation of a vehicle weaving in its own lane of traffic provides an articulable basis or reasonable suspicion for stopping a vehicle for investigation regarding the driver's condition.
12. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
William J. O'Brien, Hempstead, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
In this appeal, we first determine whether evidence that a vehicle momentarily touched or crossed a lane divider line, without more, established a statutory violation and thereby provided probable cause for a traffic stop. It did not, because the controlling statute requires that a vehicle remain in a single lane only “as nearly as practicable.” Second, because the arresting officer admitted that this “happens all the time” and failed to distinguish how this case differed from normal behavior, there was no reasonable suspicion of criminal activity sufficient to support an investigatory stop. We reverse the judgment of the district court and remand the cause for further proceedings.
On September 22, 2010, Officer Kristopher Peterson of the Douglas County Sheriff's Department pulled over a vehicle with out-of-state license plates heading eastbound on Interstate 80 because it momentarily crossed over the divider line between the two eastbound lanes. Doan Q. Au was a passenger in the vehicle. Based upon the suspicions Peterson developed while issuing a warning ticket for the alleged traffic violation, he deployed a drug detection dog, searched the vehicle, and ultimately discovered numerous packets of cocaine in a hidden compartment in the trunk.
Au was charged with unlawful possession with intent to deliver a controlled substance and entered a plea of not guilty. Prior to trial, Au filed a motion to suppress any and all evidence that resulted from the traffic stop and search of the vehicle.
At the suppression hearing, the district court received evidence and heard Peterson's testimony, which established the events that transpired immediately before the initial traffic stop and leading up to Au's arrest. Peterson testified that he initiated the traffic stop at 10:08 p.m. after he observed that most of the vehicle's “left, or driver's side, tires briefly, briefly crossed over the white divider line, crossing into the inside lane for several hundred feet.” He twice observed the vehicle touch the divider line in this manner. Peterson made this observation immediately after the vehicle crossed a diagonal seam or “break in the road” which made the pavement a “little bit” uneven and on a stretch of road that curved slightly to the left. Peterson admitted that it was “more difficult” for a driver to maintain his lane under such conditions.
The district court received video footage from Peterson's cruiser, showing the traffic stop and the alleged traffic offense that precipitated it, all occurring after nightfall. The video depicts the subject vehicle touching and partially crossing the divider line with its left tires in a manner and under conditions consistent with Peterson's testimony. Additionally, the video shows another vehicle preparing to merge onto the Interstate into the subject vehicle's lane just prior to the second time that it deviated from its lane and away from the merging traffic.
Referring to vehicles touching the lane divider line, Peterson admitted that “it happens commonly” and that it “happens quite a bit.” He testified that when a vehicle fails to maintain its lane, it could indicate that the driver is impaired by an illegal substance or alcohol, or that the driver is “overly tired.” Peterson declined to describe what he observed in the instant case as erratic driving, but he opined that it was “definitely impaired in some manner.” Peterson testified that it was his “general practice” to stop vehicles for crossing the centerline “[w]hen practical....” He stated that even though such behavior is a common occurrence, it raises safety concerns for the driver of the subject vehicle and other drivers; but he did not explain how touching or crossing the line without any nearby traffic would affect safety.
Later, Peterson admitted that it “happens all the time by people [who] are driving [and who] aren't under the influence or fatigued.” In the instant case, the driver of the vehicle had committed no other traffic violations aside from crossing the centerline, and there were no other vehicles in the immediate vicinity.
Because of the resolution of this appeal, we only briefly summarize the events that followed. After stopping the vehicle, Peterson questioned the driver and Au separately. After giving the driver a warning ticket, Peterson did not allow the parties to leave and deployed a drug detection dog. The dog alerted and indicated. Upon searching the vehicle, Peterson discovered cocaine. The driver and Au were arrested.
Based upon Peterson's testimony, the district court overruled Au's motion to suppress. The court stated:
The ... vehicle, as observed by [Peterson], did cross the center line on more than one occasion, which would be sufficient to create probable cause to stop said vehicle and make contact with the driver.
In the present case, [Peterson] did have objective articulable probable cause that a violation had occurred and therefore the stop of the vehicle was lawful.
The case proceeded to a stipulated bench trial. During the trial, Au renewed his motion to suppress. The district court treated the renewal of the motion to suppress as though it were made at the commencement of the trial and overruled the motion.
The district court found Au guilty of unlawful possession with intent to deliver a controlled substance, a Class IC felony, and sentenced him to 10 to 12 years' imprisonment.
Au filed a timely appeal. Pursuant to statutory authority, we moved this case to our docket.1
Au assigns, restated, that the district court erred in overruling his motion to suppress, because Peterson lacked (1) a constitutionally sufficient basis for stopping the vehicle in which Au was a passenger and (2) a reasonable suspicion to detain Au after the initial purpose of the traffic stop was completed. We reach only the first of these two issues.
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 Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination. 2
The interpretation of a statute presents a question of law.3
In ruling upon Au's motion to suppress, the district court relied upon the well-established principle that a traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.4 Probable cause merely requires that the facts available to the officer would cause a reasonably cautious person to believe that the suspect has committed an offense; it does not demand any showing that this belief be correct or more likely true than false.5
The district court viewed any crossing of a lane divider as...
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