State v. Bowers

• Decision Date: 31 May 1996
• Docket Number: No. S-94-1243,S-94-1243
• Citation: 548 N.W.2d 725,250 Neb. 151
• Parties: STATE of Nebraska, Appellee, v. Brent A. BOWERS, Appellant.
• Court: Nebraska Supreme Court

Page 725

548 N.W.2d 725

250 Neb. 151

STATE of Nebraska, Appellee, v.Brent A. BOWERS, Appellant.

No. S-94-1243.

Supreme Court of Nebraska.

May 31, 1996.

Syllabus by the Court

1.Motions to Suppress: Appeal and Error.A trial court's ruling on a motion to suppress is to be upheld unless its findings of fact are clearly erroneous.In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2.Judgments: Appeal and Error.Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

3.Motor Vehicles.Pursuant to Neb.Rev.Stat. § 60-323(Reissue 1993), except as otherwise specifically provided, no person shall operate, drive, or park a motor vehicle on the public highways unless such vehicle at all times has displayed one number plate on the back thereof and one number plate on the front thereof.

4.Motor Vehicles.Pursuant to Neb.Rev.Stat. § 60-320(Reissue 1993), a statutory exemption from the mandate that license plates must be displayed in order to lawfully operate a motor vehicle is provided to purchasers of new or used vehicles.

5.Motor Vehicles Pursuant to Neb.Rev.Stat. § 60-320.01(Reissue 1993), one can lawfully operate an unregistered motor vehicle for 30 days without display of license plates or in-transit tags after purchasing the vehicle from a nonlicensed seller, provided one can produce the proper documentation upon demand.

6.Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause.Police can constitutionally stop and briefly detain a person for investigative purposes if the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the Fourth Amendment.

7.Investigative Stops: Probable Cause: Words and Phrases.Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause.

8.Constitutional Law: Police Officers and Sheriffs: Investigative Stops: Motor Vehicles: Statutes.Reasonable suspicion, as a prerequisite for a constitutional investigatory stop, cannot be based only on a police officer's desire to verify compliance with motor vehicle registration statutes.

9.Criminal Law: Police Officers and Sheriffs: Investigative Stops: Motor Vehicles.There may be some circumstances in which wholly lawful conduct might justify the suspicion that criminal activity is afoot; the purpose of an investigative stop is to clarify ambiguous situations, and even if it is equally probable that the vehicle or its occupants are innocent of any wrongdoing, police must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it is their duty to prevent.

10.Police Officers and Sheriffs: Investigative Stops.The proper focus of an inquiry is not whether specific conduct is criminal or noncriminal, but whether a police officer's suspicion is reasonably related to the activity observed, criminal or noncriminal.

11.Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops.Even if an observed conduct is otherwise lawful, if the police officer has a particularized and objective basis under an assessment of the totality of the circumstances coupled with suspicion drawn through his or her experience and training that criminal activity has been or is about to be engaged in, an investigatory stop may be constitutionally proper.

12.Criminal Law: Police Officers and Sheriffs: Investigative Stops: Motor Vehicles.When an officer observes a vehicle without license plates or in-transit tags, a particularized and objective basis exists to justify a reasonable, articulable suspicion that the driver may be criminally avoiding the motor vehicle registration statutes, thereby supporting a brief investigatory stop.

13.Constitutional Law: Criminal Law: Miranda Rights: Self-Incrimination: Waiver.The protection of the privilege against self-incrimination requires certain warnings regarding rights and a voluntary, knowing, and intelligent waiver of those rights before incriminating responses to custodial interrogation can be admissible in evidence in a criminal proceeding.

14.Miranda Rights: Police Officers and Sheriffs: Investigative Stops: Motor Vehicles.Persons temporarily detained pursuant to an investigatory traffic stop are not "in custody" for purposes of Miranda; there must be some further action or treatment by the police to render the driver "in custody" and entitled to Miranda warnings.

Dennis R. Keefe, Lancaster County Public Defender, and Kristi J. Egger, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

LANPHIER, Justice.

Following a bench trial in the county court for Lancaster County, Brent A. Bowers was convicted of driving under the influence (DUI), in violation of Neb.Rev.Stat. § 39-669.07(Cum.Supp.1992), and of failure to appear, in violation of Neb.Rev.Stat. § 29-908(Reissue 1995).Bowers appealed to the district court and asserted that the county court erred in denying his motion to suppress evidence which was secured following the stop of his vehicle, because the basis for the stop was unconstitutional.Bowers also asserted that the county court erred in failing to suppress statements made by him while in custody and prior to his being informed of his right to remain silent.The statements Bowers sought to suppress were his verbal responses to routine field sobriety testing.The district court affirmed the judgment of the county court.Bowers appealed to the Nebraska Court of Appeals, which affirmed the county court's orders denying Bowers' motions to suppress and the DUI conviction and sentence.State v. Bowers, 95 NCA No. 50, case No. A-94-1243, 1995 WL 749709(not designated for permanent publication).The Court of Appeals set aside Bowers' conviction and fine for failure to appear, a matter that is not before us in this review.We granted Bowers' petition for further review of his DUI conviction and sentence.We affirm the lower court holdings that the investigatory stop of Bowers' was constitutionally proper and that the statements Bowers sought to suppress were not elicited during a custodial interrogation for purposes of the Miranda rule.

BACKGROUND

On March 18, 1993, at approximately 1:45 a.m., Nebraska State Patrol TrooperJeffrey Ward observed a 1989Chevy Camaro with no license plates and no in-transit tags.Ward did not observe any driving errors such as speeding or swerving.Ward testified that he stopped the vehicle solely because it did not have license plates or in-transit tags.

When Ward approached the vehicle, he noticed the smell of alcohol.Bowers was unable to produce a driver's license.Bowers' license had just been reinstated, but he had not yet taken the driver's license test.However, Bowers did have the proper paperwork for the car, showing that he had purchased the vehicle from a private individual within the past 2 weeks.

Ward was unable to ascertain whether the smell of alcohol emanated from Bowers or from Bowers' passenger.Ward asked Bowers to accompany him back to his police cruiser in order to verify his story regarding his driver's license and in order to determine if the alcohol smell emanated from Bowers.As Bowers sat in the front passenger seat of the cruiser, Ward smelled alcohol and noticed that Bowers' eyes were bloodshot and that his speech was slurred.

Ward had Bowers perform some routine field sobriety tests.First, Ward asked Bowers to perform the horizontal nystagmus test.The record does not indicate whether Bowers performed this test satisfactorily.Ward then asked Bowers to recite the alphabet.Ward testified that Bowers skipped the letter "B."Bowers was then asked to count backward and failed to do so correctly.Because it was snowing and windy, Ward did not ask Bowers to perform any other field sobriety tests such as walking heel-to-toe.

Bowers performed and failed a preliminary breath test.Ward placed Bowers under arrest and transported him to a Lancaster County correctional facility.A subsequent Intoxilyzer test showed Bowers to have .14 grams of alcohol per 210 liters of breath.

On April 13, 1993, Bowers filed a motion to suppress all physical evidence, statements, visual and auditory observations, and any other evidence seized from the defendant after the stop of his vehicle.Bowers asserted that Ward had no probable cause or articulable suspicion to justify the stop of his vehicle and that such investigatory stop violated his 4th and 14th Amendment rights under the U.S. Constitution, and as guaranteed by the Nebraska Constitution.The evidence sought to be suppressed resulted from the stop.

After several continuances and failures to appear, a hearing was conducted on the motion to suppress on September 29, 1993.At the hearing, Bowers argued that under the holding of this court in State v. Childs, 242 Neb. 426, 495 N.W.2d 475(1993), cert. denied508 U.S. 940, 113 S.Ct. 2415, 124 L.Ed.2d 638, a constitutional investigatory stop cannot be based solely on a police officer's desire to verify compliance with motor vehicle registration statutes.Therefore, Bowers argued Ward lacked a reasonable suspicion, supported by articulable facts, that criminal activity existed in order to justify the stop of Bowers' vehicle simply because his vehicle did not display either license plates or in-transit tags.

On January...