State Of Neb. v. Wollam
| Decision Date | 18 June 2010 |
| Docket Number | No. S-09-768.,S-09-768. |
| Parties | STATE of Nebraska, appellee,v.Jon D. WOLLAM, appellant. |
| Court | Nebraska Supreme Court |
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Syllabus by the Court
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme Court generally review appeals from the county court for error appearing on the record.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and as such, its review is limited to an examination of the county court record for error or abuse of discretion.
3. 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, the 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 the appellate court reviews independently of the trial court's determination.
4. Constitutional Law: Search and Seizure. The Fourth Amendment guarantees the right to be free of unreasonable search and seizure.
5. Police Officers and Sheriffs: Investigative Stops: Search and Seizure. An investigative stop is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning.
6. Police Officers and Sheriffs: Investigative Stops: Probable Cause. An investigatory stop must be justified by objective manifestation that the person stopped is, has been, or is about to be engaged in criminal activity. In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances-the whole picture-must be taken into account.
7. Criminal Law: Eyewitnesses: Presumptions. A citizen informant who has personally observed the commission of a crime is presumptively reliable.
8. Criminal Law: Eyewitnesses: Words and Phrases. A citizen informant is a citizen who purports to have been the witness to a crime who is motivated by good citizenship and acts openly in aid of law enforcement.
9. Criminal Law: Eyewitnesses: Search and Seizure. Information from a reliable citizen informant may be accepted as true in order to justify a brief detention to determine whether or not a crime has been committed, is being committed, or is about to be committed.
10. Police Officers and Sheriffs: Investigative Stops: Probable Cause. An investigative stop, like probable cause, is to be evaluated by the collective information of the police engaged in a common investigation.
11. Police Officers and Sheriffs: Eyewitnesses: Probable Cause. A third-party report of suspected criminal activity must possess sufficient indicia of reliability to form the basis of an officer's reasonable suspicion.
12. Police Officers and Sheriffs: Arrests: Probable Cause. The existence of probable cause justifying a warrantless arrest is tested by the collective information possessed by all the officers engaged in a common investigation.
13. Police Officers and Sheriffs: Investigative Stops: Probable Cause. Under the collective- or imputed-knowledge doctrine, information known to all of the police officers acting in concert can be examined when determining whether the officer initiating the stop had reasonable suspicion to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Kirk E. Naylor, Jr., Lincoln, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Jon D. Wollam was charged with driving under the influence of alcohol (second offense), refusal to submit to a preliminary breath test, refusal to submit to a chemical test, child abuse, and having an open container of alcohol in a vehicle. He moved to suppress the evidence from the traffic stop, alleging that the stop was not supported by a reasonable suspicion. The Saline County Court overruled the motion. Wollam was subsequently convicted of refusal to submit to a preliminary breath test and refusal to submit to a chemical test. He appealed to the Saline County District Court, which affirmed his convictions and sentences.
Both the district court and the Nebraska Supreme Court generally review appeals from the county court for error appearing on the record. State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008). In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and as such, its review is limited to an examination of the county court record for error or abuse of discretion. Id.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment we apply a two-part standard of review. Regarding historical facts, we review the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).
On March 7, 2008, the Lancaster County emergency dispatch center telephoned the emergency dispatch center in Crete, Nebraska, to relay information received about a drunk driver. The call was answered by Dawn Edmonds, an officer with the Crete Police Department. The Lancaster County dispatcher stated that she had received a report from a woman that her husband was driving drunk. The dispatcher said the driver had left Hallam, Nebraska, 30 minutes earlier and was on his way to Crete High School to pick up his children. The dispatcher described the vehicle as a white “dually” pickup with signs on the sides that said “JW Electric.” It was believed that the driver would travel on Highway 33.
As a result of the call, Edmonds and Officer Brian Stork drove toward Crete High School, and on their way, they observed a vehicle matching the description received earlier. Stork made a U-turn to follow the truck and activated the patrol car's overhead emergency lights to stop the truck.
Stork approached the driver and asked him to get out of the vehicle and move to the rear of the truck. The driver was identified as Wollam, and his two sons were in the vehicle. Both Stork and Edmonds reported noticing an odor of alcohol emitting from Wollam's person. Stork administered the horizontal gaze nystagmus field sobriety test. Based on the report from the Lancaster County dispatch center, observation of the odor of alcohol, and indicators of impairment on the field sobriety test, Stork believed Wollam was under the influence of alcohol. Wollam refused to submit to a preliminary breath test. He was read the postarrest chemical test advisement and asked to provide a blood sample. He refused and was arrested.
Wollam was charged with driving under the influence of alcohol (second offense), refusal to submit to a preliminary breath test, refusal to submit to a chemical test, child abuse, and possessing an open alcoholic beverage container. He moved to suppress any evidence gathered as a result of the stop, arguing that the stop was not supported by a reasonable suspicion, based upon articulable facts, that the motor vehicle was being operated in violation of the law. Wollam claimed the stop violated his rights under the 4th and 14th Amendments to the U.S. Constitution and article I, § 7, of the Nebraska Constitution.
During the suppression hearing, the State offered exhibit 1, which is a recording of the call from the Lancaster County dispatch center to the Crete dispatch center. Wollam had no objection, and the trial court received the exhibit. After testimony from Edmonds and Stork, Wollam offered exhibit 2 into evidence, which is a recording of the call from Wollam's wife to the Lancaster County dispatch center. The parties stipulated to the authenticity of the recording. The State objected to the relevance of the recording, and the court received the exhibit “subject to relevancy.”
The trial court overruled the motion to suppress. It found that the officers, relying on a report relayed to them by the Lancaster County dispatch center, located Wollam's vehicle near the location mentioned in the report. The description of the vehicle was consistent with the report. The court found that the officers received what they believed to be a valid report upon which they should act and did so. The court concluded the officers had a sufficient articulable reason to effectuate a stop.
At trial, the State offered exhibits 1 and 2, along with exhibit 3, which was Stork's police report of the incident. Wollam stipulated that the police report accurately reflected what Stork's testimony would be at trial. Wollam stated that the stipulation was subject to his objection that the traffic stop was illegal. The trial court received exhibits 1, 2, and 3 without objection. The court noted that Wollam had preserved his objection to the traffic stop.
Wollam was found guilty of refusal to submit to a preliminary breath test and refusal to submit to a chemical test. He was ordered to pay fines totaling $500 and was placed on probation for 12 months.
Wollam appealed his convictions and sentences to the district court. He alleged the county court erred in overruling his motion to suppress. The district court remanded the cause to the county court to determine whether the county court had taken exhibit 2 into consideration in its ruling on Wollam's motion to suppress. Exhibit 2 had been received at the suppression hearing subject to the State's objection based on relevancy. The record did not indicate whether the county court ruled on the relevancy objection. However, exhibit 2 was admitted at trial without objection. In response to the district court...
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