State v. Gilliam
| Decision Date | 12 February 2016 |
| Docket Number | No. S–15–373,S–15–373 |
| Citation | 292 Neb. 770,874 N.W.2d 48 |
| Parties | State of Nebraska, appellee, v. Jeffrey Gilliam, appellant. |
| Court | Nebraska Supreme Court |
Mark E. Rappl, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
In this direct appeal, Jeffrey Gilliam challenges the district court's denial of his pretrial motion to suppress evidence and the court's use of a conviction from a Missouri court to enhance his sentence for driving under the influence of alcohol (DUI). We reject Gilliam's first argument, because his initial encounter with police fell outside the realm of the Fourth Amendment. And his argument regarding enhancement fails, because a suspended imposition of sentence in the prior Missouri case qualifies as a "prior conviction" under the pertinent statute. We affirm his conviction and sentence.
Gilliam was arrested for DUI after an encounter with a police officer. An information filed in the district court for Lancaster County charged Gilliam with DUI and alleged that Gilliam had two prior convictions.
Gilliam filed a pretrial motion to suppress all evidence gathered as a result of his encounter with the police officer. He argued that he was seized and that his seizure was unsupported by reasonable suspicion.
Officer Brock Wagner of the Lincoln Police Department testified at the suppression hearing. Wagner testified that on May 26, 2013, at approximately 5:39 a.m., he received a report from police dispatch that a white Dodge Ram, license plate No. SYD 417, was parked partially on the curb and partially on the street in the area of Ninth and A Streets. Wagner drove to the area in his marked patrol unit to investigate, but he did not see the reported Dodge Ram when he arrived. He turned onto a different street, where he saw the reported Dodge Ram parked legally on the side of the street. It was running, and its lights were on.
Wagner pulled behind the Dodge Ram and activated his patrol unit's overhead lights. He exited his patrol unit, knocked on the window, and directed Gilliam, who was in the driver's seat, to roll down the window, and Gilliam complied. Wagner observed that Gilliam had a strong odor of alcohol on his breath; watery, bloodshot eyes; and slurred speech. Wagner asked to see Gilliam's driver's license, and Gilliam produced it. Wagner then conducted a DUI investigation and arrested Gilliam for DUI. Wagner testified that he was dressed in his uniform, wearing his badge, and carrying a gun when his encounter with Gilliam occurred.
At the end of the suppression hearing, the district court took the matter under advisement. It later issued a written order overruling Gilliam's motion to suppress. It concluded that Gilliam's encounter with Wagner did not begin as a seizure; rather, it began as a consensual or "first-tier" encounter that did not implicate Fourth Amendment protections. The district court further concluded that Wagner had reasonable suspicion to expand his initial contact with Gilliam into a DUI investigation.
The district court rejected Gilliam's argument that " ‘a person in a parked vehicle is seized at the moment when the officer activates the emergency lights.’ " It explained that "there are a myriad of circumstances under which police are authorized to use overhead lights—many of which have nothing whatsoever to do with a seizure." And it observed that adopting Gilliam's approach "would have the practical effect of making every police-citizen contact a seizure once overhead lights are activated, regardless of the other circumstances surrounding the contact."
Finally, the district court concluded that Wagner obtained reasonable suspicion to extend the encounter into a DUI investigation when Gilliam rolled down his window. At that point, Wagner observed the strong odor of alcohol and Gilliam's bloodshot eyes and slurred speech, which provided reasonable suspicion of criminal activity.
Gilliam proceeded to trial and was convicted by a jury of DUI. An enhancement hearing was held, and the State offered two exhibits: a certified copy of a prior DUI conviction from Nebraska and a certified copy of a document from Missouri titled "JUDGMENT OF COURT UPON PLEA OF GUILTY" (Missouri judgment). The Missouri judgment indicated that in 2004, Gilliam appeared with an attorney and pled guilty to driving while intoxicated (DWI) in a Missouri court. It showed that the judge found a factual basis for Gilliam's plea of guilty, approved it, and accepted it. But it also showed that the imposition of his sentence was suspended and that he was placed on probation for 2 years.
Gilliam did not object to the receipt of the Missouri judgment, but argued that because the suspended imposition of a sentence is not considered a final judgment1 or a conviction2 in Missouri, it cannot be considered a prior conviction for the purposes of sentence enhancement under Nebraska law. He asked the court to take judicial notice of the Missouri sentencing statute that authorizes courts to suspend the imposition of a sentence,3 but he otherwise presented no evidence at the hearing.
The district court concluded that the State had met its initial burden of proving Gilliam's prior Missouri DWI conviction by a preponderance of the evidence. It determined that the Missouri judgment "reflects, with requisite trustworthiness, the Missouri court's acceptance of [Gilliam's] guilty plea to the charge of DWI and the court's act of rendering judgment and disposition thereon." It also found that the Missouri conviction was counseled and that the offense would have been a violation of Nebraska's DUI laws.
The district court noted that once the State had met its burden, the burden shifted to Gilliam to introduce evidence "rebutting the statutory presumption that the Missouri [judgment] is valid for purposes of enhancement." Gilliam presented no evidence. Accordingly, the district court found that Gilliam was convicted of DUI or the equivalent offense on two prior occasions. And it concluded that the prior convictions were valid for the purposes of enhancement. The district court sentenced Gilliam to probation for a period of 36 months. The terms of the probation included a 60–day jail sentence, a fine, and other restrictions.
Gilliam filed a timely appeal, which we moved to our docket in order to resolve the enhancement issue, which is an issue of first impression.4
Gilliam assigns that the district court erred in (1) overruling his motion to suppress and (2) concluding that his DWI conviction from the State of Missouri was a valid prior conviction for enhancement purposes.
In reviewing a trial court's ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review.5 Regarding historical facts, we review the trial court's findings for clear error.6 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.7
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.8
On a claim of insufficiency of the evidence, an appellate court, viewing and construing the evidence most favorably to the State, will not set aside a finding of a previous conviction for the purposes of sentence enhancement supported by relevant evidence.9
Gilliam claims that the district court erred when it overruled his motion to suppress the evidence obtained as a result of his encounter with Wagner. He argues that Wagner's activation of his patrol unit's overhead lights was a show of authority that transformed the initial encounter into a seizure for Fourth Amendment purposes. We disagree.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.10 Evidence obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be excluded.11
To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the analysis set forth in State v. Van Ackeren .12 Van Ackeren describes three levels, or tiers, of police-citizen encounters.13
The first tier does not implicate the Fourth Amendment. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning and does not involve any restraint of liberty of the citizen.14 Because tier-one encounters do not rise to the level of a seizure, they are outside the realm of Fourth Amendment protection.15
However, second or third tier encounters require constitutional analysis. A tier-two police-citizen encounter constitutes an investigatory stop as defined by Terry v. Ohio .16 Such an encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning.17 A tier-three police-citizen encounter constitutes an arrest.18 An arrest involves a highly intrusive or lengthy search or detention.19 Tier-two and tier-three police-citizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S. Constitution.20
A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.21 In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by...
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