State v. Davis, No. A-07-104 (Neb. App. 8/7/2007)
| Decision Date | 07 August 2007 |
| Docket Number | No. A-07-104.,A-07-104. |
| Parties | STATE OF NEBRASKA, APPELLANT, v. LEE A. DAVIS, JR., APPELLEE. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Hall County: TERESA K. LUTHER, Judge. Reversed and remanded.
Jack Zitterkopf and Sarah Carstensen, Deputy Hall County Attorneys, for appellant.
Thomas A. Wagoner for appellee.
The State of Nebraska appeals an order of the district court for Hall County, Nebraska, sustaining a motion to suppress filed by Lee A. Davis, Jr. The State asserts on appeal that the district court erred in not finding, at a minimum, that there was at least a reasonable, articulable suspicion to support the traffic stop which led to the discovery of evidence. I find that the district court's order granting suppression is contrary to established law and that at a minimum, there was a reasonable, articulable suspicion to support the traffic stop. As such, I reverse, and remand.
On August 30, 2006, Nebraska State Patrol Trooper Wendy Brehm was on duty on Interstate 80 when she "observed a vehicle cross the — failed to maintain its lane of travel and cross over what's considered the shoulder line." She observed that "[t]he right side of the vehicle, the front and the rear tire crossed over the solid white line and then crossed back briefly and crossed back over." She observed the vehicle travel "a short distance, approximately within two seconds," with the right tires crossed over the shoulder line.
Trooper Brehm testified that she "was concerned as far as if the driver of the vehicle may be impaired in some way, whether under the influence of alcohol or drugs, or just tired." She stopped the vehicle because of her concern and because she felt the driver of the vehicle had failed to maintain the driver's lane of travel and had driven on the shoulder, both of which Trooper Brehm felt were violations of traffic laws.
Trooper Brehm conducted a search "[b]ased on information that [she] acquired subsequent to [her] stop of the vehicle." As a result of that search, Davis, who was the passenger in the vehicle, was arrested.
On November 28, 2006, the State filed an information charging Lee with possession of a controlled substance with intent to distribute and with possession of a controlled substance without an official tax stamp affixed thereto. Also on November 28, Davis filed a motion to suppress evidence "for the reason that no probable cause existed to stop [the] automobile."
On January 8, 2007, the district court conducted a hearing on Davis' motion to suppress. Trooper Brehm was the only witness to testify at the hearing, and her testimony was as set forth above. At the conclusion of the hearing, the State argued that the testimony of Trooper Brehm demonstrated that she observed a violation of a traffic statute and that at a minimum, the testimony established that Trooper Brehm had a reasonable and articulable suspicion to stop the automobile. Davis argued that the holding of another district court judge in an unrelated case suggested that inadvertently and momentarily crossing onto the shoulder should not be criminalized.
On January 23, 2007, the district court entered an order granting Davis' motion to suppress. The court recognized that an articulable basis or reasonable suspicion can support law enforcement's stopping an automobile and that a traffic violation, no matter how minor, creates probable cause to stop the driver of an automobile. However, the court held that where a driver's "right tires crossed the fog line on the interstate for approximately one or two seconds . . . an officer does not have an articulable basis or reasonable suspicion to stop the vehicle to investigate the driver's condition," and that "[a] momentary, inadvertent crossing of the fog line on the interstate by the vehicle's right tires does not constitute driving on the shoulder of the road." As such, the court held that the stop "was unwarranted and [Davis'] Motion to Suppress should be sustained." The State brought this appeal.
The State has assigned three errors that all challenged the district court's sustaining of Davis' motion to suppress: First, the State asserts that the court erred in finding no probable cause for the stop. Second, the State asserts that the court erred in interpreting the traffic statutes. Third, the State asserts that the court erred in not finding at least a reasonable, articulable suspicion to support the stop.
The State's assignments of error all challenge the district court's sustaining of Davis' motion to suppress. Because I find that at a minimum, the testimony of Trooper Brehm establishes a reasonable, articulable suspicion to support the stop, I will not specifically address the question of whether momentarily crossing onto the shoulder is a violation of Neb. Rev. Stat. § 60-6,142 (Reissue 2004), which prohibits driving on the shoulder, or Neb. Rev. Stat. § 60-6,139 (Reissue 2004), which requires drivers to maintain their lane of travel.
To continue reading
Request your trial