State v. Giessinger
| Decision Date | 20 April 1990 |
| Docket Number | No. 89-832,89-832 |
| Citation | 235 Neb. 140,454 N.W.2d 289 |
| Parties | STATE of Nebraska, Appellee, v. John G. GIESSINGER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pretrial Procedure: Motions to Suppress. The intention embodied in Neb.Rev.Stat. § 29-822 (Reissue 1989) is that unless a motion to suppress falls within one of the statutorily specified exceptions, such a motion is to be ruled on and finally determined before trial.
2. Trial: Evidence: Motions to Strike. A motion to strike evidence to which there should have been an objection when the evidence was offered is merely another term for an objection and is governed by the rules pertaining to a timely objection.
3. Trial: Evidence. An objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent.
4. Trial: Evidence: Motions to Strike. A motion to strike is not timely where testimony has been adduced without objection and where the grounds for the motion should have been apparent at the time of the testimony.
5. Constitutional Law: Search and Seizure: Motor Vehicles. An occupant of a vehicle ordinarily has a legitimate expectation to be free of unreasonable governmental intrusion so as to give him or her standing to challenge the stop as violative of the occupant's fourth amendment rights.
6. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. An investigative stop of a vehicle is justified where a law enforcement officer has a reasonable suspicion founded upon articulable facts which indicate that a crime has been committed or is being committed by occupants of the vehicle.
7. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. In determining whether facts known to a law enforcement officer at the time of the investigatory stop provided a reasonable basis for the stop, we must consider the totality of the circumstances, including all of the objective observations and considerations, as well as the suspicions, drawn by a trained and experienced law enforcement officer by inference and deduction that the individual stopped is, has been, or is about to be engaged in criminal behavior.
8. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. The officer making an investigatory stop must have a particularized and objective basis for suspecting the person stopped of criminal activity.
Casey J. Quinn and Bonnie Harty, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Linda L. Willard, for appellee.
Defendant-appellant, John G. Giessinger, challenges the district court's affirmance of the county court's judgment adjudicating him guilty of driving a motor vehicle while his driver's license had been suspended, in violation of Neb.Rev.Stat. §§ 60-430.01 and 60-557 (Reissue 1988). Giessinger's five assignments of error consolidate into assertions that the district court failed to find error on the record by virtue of the county court's purportedly erroneous overruling of his motion to suppress evidence obtained through an allegedly unlawful investigatory stop. We affirm.
On November 12, 1988, the Nebraska Game and Parks Commission and the Nebraska State Patrol were jointly conducting a transitory roadblock operation in Otoe County, Nebraska, at the intersection of Highways 128 and 50. The commission officers were checking for game and fish permit violations, while the state troopers were inspecting operators' licenses, vehicle registrations, proofs of insurance, and vehicle equipment.
Participating in the roadblock was a commission conservation officer having statewide authority to enforce traffic laws as well as game, fish, and park regulations. At approximately 1:55 p.m., the conservation officer observed a brown Chevrolet pickup truck approaching the intersection at which the roadblock was located. The conservation officer noticed that when the pickup was approximately 200 to 250 yards from the roadblock, it slowed down, pulled off onto the shoulder of the highway, and stopped. The conservation officer shouted to one of the troopers that there was a vehicle pulling off the road. Through his binoculars, the conservation officer saw Giessinger stop the pickup and then saw Giessinger and the passenger of the vehicle switch places. When the conservation officer saw the two switch places, he decided to stop the pickup. He testified that although he had no evidence of any criminal activity, he believed that Giessinger's actions in pulling over and switching places with the passenger just before reaching the roadblock were suspicious.
When the pickup reached the roadblocked intersection, the conservation officer approached the driver's side of the vehicle and asked the driver for his operator's license. The trooper approached the passenger side of the vehicle where Giessinger was sitting, asked Giessinger for his operator's license, and learned that Giessinger's motor vehicle operator's license had been suspended.
Pursuant to Neb.Rev.Stat. § 29-822 (Reissue 1989), Giessinger moved in county court to suppress the evidence which was obtained pursuant to the stop and subsequent search, which in his motion he claims were "accomplished by law enforcement personnel by virtue of an unreasonable roadblock...." The county court overruled Giessinger's motion on the basis that the investigatory stop was unrelated to the roadblock because the conservation officer had a particularized and objective basis for suspecting Giessinger of criminal activity and thus for stopping the vehicle.
Prior to the suppression hearing, the county court judge told defense counsel that the judge's usual practice was to handle the motion to suppress and the trial "collectively, at the same time, and [hear] evidence on the motion and also [receive] it as evidence at the trial at the same time," and asked defense counsel if he had "[a]ny problem with handling it that way." Defense counsel informed the judge that Giessinger might testify at the suppression hearing but not at trial, and the judge decided to consider the motion to suppress before proceeding with the trial.
In this regard we call attention to our recent holding in State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989), that the intention embodied in § 29-822 is that unless a motion to suppress falls within one of the statutorily specified exceptions, which do not apply in this case, such a motion is to be ruled on and finally determined before trial.
Perhaps as a result of the county court judge's suggestion that they implement the practice of combining the suppression hearing and the trial for purposes of receiving evidence, Giessinger failed to make a timely objection to the admission of the claimed objectionable evidence at the "trial" phase of the proceedings. He instead renewed his motion to suppress at the close of the State's evidence at trial and at the close of all the evidence at trial. However, even if we treat Giessinger's renewed motions to suppress as motions to strike any testimony given at trial concerning the allegedly illegally obtained evidence, such motions to strike were not timely made. A motion to strike evidence to which there should have been an objection when the evidence was offered is merely another term for an objection and is governed by the rules pertaining to a timely objection. State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984). An objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. Id. Accordingly, a motion to strike is not timely where testimony has been adduced without objection and where the grounds for the motion should have been apparent at the time of the testimony. Id. See, also, State v. Welsh, 232 Neb. 219, 440 N.W.2d 225 (1989) ().
Despite the fact that Giessinger failed to object at trial, because of the confusion introduced into the proceedings by the county court judge's suggestion that the suppression hearing and the trial be combined, we will consider the merit of Giessinger's claim that his motion to suppress should have been sustained.
We begin by noting that Giessinger possesses the necessary standing to question the seizure of the automobile, for while the record does not disclose the identity of the owner of the subject motor vehicle, it does disclose that Giessinger was an occupant thereof. As we recently held in State v. Harms, supra, an occupant of a vehicle ordinarily has a legitimate expectation to be free of unreasonable governmental intrusion so as to give him or her standing to challenge the stop as violative of the...
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State v. Kevin L. Smith
...which he was riding, he does not have standing to challenge the seizure of other vehicles pursuant to the roadblock. State v. Giessinger (Neb.1990), 454 N.W.2d 289, 294. See also Murphy v. State (Tex.App.1992), 864 70, 77 (finding appellant lacked standing to challenge constitutionality of ......
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State v. Stott
...of his or her Fourth Amendment rights." State v. Chavez, 240 Neb. 538, 543, 483 N.W.2d 122, 125 (1992), citing State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289 (1990). Accord State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989). Because Stott was an occupant in the informant's automobile and ......
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State v. Skiles
...stopping); (2) when the vehicle stops and the driver and passenger change places just before reaching the roadblock. State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289 (1990) (regardless of the legality of the roadblock, driver's actions provided a basis independent of the roadblock which ju......
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Murphy v. State, 12-90-00133-CR
...facts which indicate that a crime has been committed or is being committed by occupants of a vehicle. State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289, 292-93 (1990). A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while......