State v. Modlin

• Decision Date: 21 August 2015
• Docket Number: No. S–14–590,S–14–590
• Citation: 867 N.W.2d 609
• Parties: State of Nebraska, appellee, v. Nathan A. Modlin, appellant.
• Court: Nebraska Supreme Court

867 N.W.2d 609

State of Nebraska, appellee

v.Nathan A. Modlin, appellant.

No. S–14–590

Supreme Court of Nebraska.

Filed August 21, 2015

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.

Douglas J. Peterson and Jon Bruning, Attorneys General, and Nathan A. Liss, for appellee.

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error.In reviewing a trial court's ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

2. Constitutional Law: Search and Seizure: Appeal and Error.When reviewing whether a consent to search was voluntary, as to the historical facts or circumstances leading up to a consent to search, an appellate court reviews the trial court's findings for clear error. However, whether those facts or circumstances constituted a voluntary consent to search, satisfying the Fourth Amendment, is a question of law, which an appellate court reviews independently of the trial court. And where the facts are largely undisputed, the ultimate question is an issue of law.

3. Constitutional Law: Search and Seizure.The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.

4. Constitutional Law: Search and Seizure: Blood, Breath, and Urine Tests.The drawing of blood from a person's body for the purpose of administering blood tests is a search of the person subject to Fourth Amendment constraints.

5. Constitutional Law: Search and Seizure.Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment to the U.S. Constitution, subject only to a few specifically established and well-delineated exceptions.

6. Warrantless Searches.The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.

7. Constitutional Law: Search and Seizure: Duress.To be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne. Consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological.

8. Search and Seizure.Whether consent to a search was voluntary is to be determined from the totality of the circumstances surrounding the giving of consent.

9. Constitutional Law: Blood, Breath, and Urine Tests.A court may not rely solely on the existence of an implied consent statute to conclude that consent to a blood test was given for Fourth Amendment purposes, and the determination of whether consent was voluntarily given requires a court to consider the totality of the circumstances.

10. Blood, Breath, and Urine Tests.In considering the totality of the circumstances, the existence of an implied consent statute is one circumstance a court may and should consider to determine voluntariness of consent to a blood test.

11. Search and Seizure.Once given, consent to search may be withdrawn. Withdrawal of consent need not be effectuated through particular “magic words,” but an intent to withdraw consent must be made by unequivocal act or statement.

12. Constitutional Law: Police Officers and Sheriffs: Search and Seizure.The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness what would the typical reasonable person have understood by the exchange between the officer and the suspect?

Miller–Lerman, J.

NATURE OF CASE

Nathan A. Modlin was convicted in the Hall County Court for driving under the influence (DUI), first offense, in violation of Neb. Rev. Stat. § 60–6,196 (Reissue 2010). Modlin claims that the county court erred when it overruled his motion to suppress evidence of the result of a blood test and that the district court and the Nebraska Court of Appeals erred when they affirmed the county court's ruling. We granted Modlin's petition for further review.

Modlin argues that the evidence should have been suppressed because the warrantless drawing of his blood did not satisfy any exception to the Fourth Amendment requirement of a search warrant. We conclude that a blood draw of an arrestee in a DUI case is a search subject to Fourth Amendment principles and that when the State claims the blood draw was proper pursuant to the consent exception to the warrant requirement, actual voluntary consent is to be determined by reference to the totality of the circumstances, one of which is the implied consent statute. Because the facts show that Modlin voluntarily consented to the blood test, the overruling of his motion to suppress was not error. We affirm.

STATEMENT OF FACTS

On June 15, 2013, Deputy Casey Dahlke initiated a traffic stop after he observed a vehicle cross the centerline of a two-lane highway three times. Dahlke observed that Modlin, who was the driver and sole occupant of the vehicle, had an odor of alcohol about him and glassy, bloodshot eyes. Modlin admitted to drinking two beers, and he exhibited signs of

impairment on all three field sobriety tests conducted by Dahlke. Modlin submitted to a preliminary breath test which showed a result of more than .08 grams of alcohol per 210 liters of breath.

Dahlke placed Modlin under arrest and transported him to a hospital for a blood test. Dahlke gave Modlin the “Post Arrest Chemical Test Advisement” form to read. The form stated that Modlin was under arrest for DUI and that the officer was “requiring [Modlin] to submit to a chemical test or tests of [his] blood, breath, or urine to determine the concentration of alcohol or drugs in [his] blood, breath, or urine.” The form also stated, “Refusal to submit to such test or tests is a separate crime for which you may be charged.” The form further stated that the officer had the authority to direct whether the tests should be of blood, breath, or urine. Under the heading, “Request for test,” Dahlke selected a test of Modlin's blood to determine the alcohol content. Dahlke asked Modlin if he was capable of reading and understanding the form, and Modlin replied “yes.” Modlin read the form, signed it, and indicated that he had no questions. Modlin's blood was then drawn, and the result of the blood test was .217 grams of alcohol per 100 milliliters of blood.

The State charged Modlin in county court with one count of DUI, first offense, aggravated, and one count of crossing over the centerline. Prior to trial, Modlin filed a motion to suppress and two supplemental motions to suppress. In the original motion, Modlin moved to suppress (1) all evidence obtained as a result of the stop, because the initial stop was not based upon probable cause; (2) statements made while in custody, before Miranda warnings were given; and (3) the result of the blood test which he asserted was taken without probable cause. In the first supplemental motion, he sought to suppress the result of the preliminary breath test, which he asserted was taken in violation of the Fourth Amendment, and in the second supplemental motion, Modlin sought to suppress the result of the blood test for the additional reason that it was

a warrantless search in violation of the Fourth Amendment. On further review, Modlin has abandoned all the bases for his motions to suppress except the Fourth Amendment challenge to the blood test.

A hearing was held on Modlin's motions to suppress, and both Modlin and Dahlke testified at the hearing. Dahlke testified that he gave Modlin the chemical test advisement form, which Modlin read to himself.

Dahlke testified that Modlin signed the form and stated he understood it and that after Dahlke asked whether he had any question about the form, Modlin said “no.”

Modlin testified that when he signed the chemical test advisement form, he was “just trying to comply with what [Dahlke] was asking [him]” but that he “never consented to the blood draw.” Modlin testified that when he read the form, he did not believe there was any way that he could not submit to the test. On cross-examination, Modlin admitted that he had told Dahlke that he understood the form and that he signed the form. He further admitted that he did not at any time tell either Dahlke or the phlebotomist that he did not want his blood drawn and that he did not try to prevent the phlebotomist from drawing his blood.

The county court overruled the motions to suppress. The court concluded that the initial stop was proper. With regard to the result of the blood test, the court determined that by choosing to operate a motor vehicle on Nebraska highways, under Nebraska's implied consent law, Modlin had given his consent to submit to a chemical test. The court further found that Modlin read the chemical test advisement form and that Modlin did not withdraw his consent. The court stated: “[Modlin] was given the option of consenting to a test or suffering the consequences if he withdrew his consent. [Modlin] voluntarily agreed to the test and there was no Fourth Amendment violation.”

After the county court overruled Modlin's motions to suppress, the parties agreed to a stipulated bench trial. At the

trial, the State dismissed the charge of crossing over the centerline and reduced the DUI charge to nonaggravated DUI, first offense. The parties stipulated that the county court could consider all the evidence received at the hearing on the motions to...