State v. McCleery

Decision Date07 March 1997
Docket NumberNo. S-95-1206,S-95-1206
Citation251 Neb. 940,560 N.W.2d 789
PartiesSTATE of Nebraska, Appellee, v. Billie Jo McCLEERY, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. In light of the U.S. Supreme Court's decision in Ornelas v. U.S., --- U.S. ---- 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the traditional clearly erroneous standard of review of a trial court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search is no longer applicable. The clearly erroneous standard has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

2. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, 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.

3. Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. A law enforcement officer may legally conduct a Terry stop of a person suspected of criminal activity if the officer has a reasonable suspicion based upon articulable facts that the person has been, is, or is about to be involved in criminal activity.

4. Criminal Law: Investigative Stops: Probable Cause. Investigatory stops are permissible only upon a reasonable suspicion supported by specific and articulable facts that the person has been, is, or is about to be engaged in criminal activity.

5. Police Officers and Sheriffs: Investigative Stops: Probable Cause. In determining whether a police officer acted reasonably, it is not the officer's inchoate or unparticularized suspicion or hunch that will be given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of the officer's experience.

6. Police Officers and Sheriffs: Probable Cause. Whether a police officer has a reasonable suspicion based upon sufficient, articulable facts requires taking into account the totality of the circumstances.

Jon Placke, Assistant Box Butte County Public Defender, for appellant.

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

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and BOSLAUGH and GRANT, JJ., Retired.

WRIGHT, Justice.

Billie Jo McCleery has petitioned this court for further review of a Nebraska Court of Appeals decision that affirmed the county court's overruling of McCleery's motion to suppress evidence obtained as the result of the stop of her vehicle after she attempted to avoid a sobriety checkpoint.

SCOPE OF REVIEW

In light of the U.S. Supreme Court's decision in Ornelas v. U.S., --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the traditional clearly erroneous standard of review of a trial court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search is no longer applicable. The clearly erroneous standard has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).

A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, 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. Id.

FACTS

Between 10 p.m. and midnight on December 2, 1994, the Alliance Police Department conducted a sobriety checkpoint at Third and Niobrara Streets in Alliance, Nebraska. Police officers stopped all vehicles traveling eastbound on Third Street or northbound on Niobrara Street.

Sgt. Rae Ann Christensen, participating in the checkpoint, first observed McCleery's vehicle as it turned north onto Niobrara Street. Christensen testified that when McCleery was approximately one-fourth of a block from the checkpoint, she "threw" her vehicle into reverse and started backing away, toward a grocery store parking lot. Several officers yelled at McCleery to stop, but McCleery continued into the grocery store parking lot until Lt. Timothy Kees, who was processing another vehicle in the lot, was able to stop her. The grocery store was closed.

Once Kees was able to stop McCleery's vehicle, Christensen contacted McCleery and asked for her operator's license and vehicle information. McCleery had trouble producing her operator's license and produced an expired South Dakota registration before she produced a current certificate. During the course of the stop, Christensen noticed a slight odor of alcohol on McCleery's breath. Field sobriety tests were administered, which results, according to Christensen, indicated impairment. A preliminary breath test was conducted, which showed a .195 reading. At this point, McCleery was placed under arrest. A subsequent Intoxilyzer test was conducted. The result showed that McCleery had a blood alcohol content of .180.

McCleery was charged with driving while under the influence, in violation of Neb.Rev.Stat. § 60-6,196 (Reissue 1993). Prior to trial, McCleery moved to suppress the evidence adduced at the stop of her vehicle, arguing that the police officers did not have a "reasonably articulable suspicion" McCleery had committed any crime and that therefore the stop of her vehicle was in violation of her constitutional rights. Christensen testified that McCleery was stopped because she was avoiding the checkpoint. The county court overruled the motion to suppress, and McCleery was found guilty of driving while under the influence. McCleery appealed to the district court, which also upheld the county court's decision. She then appealed to the Court of Appeals, which also upheld the county court's decision. We granted McCleery's petition for further review.

ASSIGNMENTS OF ERROR

In summary, McCleery asserts that the county court and the Court of Appeals erred in holding that the stop of her vehicle was lawful and that the evidence obtained as a result thereof was admissible.

ANALYSIS

The issue considered by the Court of Appeals was whether stopping one's vehicle one-fourth of a block from a sobriety checkpoint and then backing away from the checkpoint constitutes sufficient evidence for a trained officer to have a reasonable suspicion that the driver is, has been, or is about to be engaged in criminal behavior. We have held on previous occasions that in situations where a person on foot encounters the police, flight alone is insufficient to justify a Terry stop. See State v. Ellington, 242 Neb. 554, 495 N.W.2d 915 (1993).

In a memorandum opinion, the Court of Appeals affirmed the county court's overruling of McCleery's motion to suppress the evidence obtained as a result of the stop of her vehicle. See State v. McCleery, 4 Neb.App. xxii (case No. A-95-1206, Aug. 2, 1996). A trial court's ruling on a motion to suppress apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, 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. State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996).

McCleery contends that the police officers had no reasonable suspicion of criminal activity when their only observation was that she avoided the sobriety...

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