State v. Rivera
| Decision Date | 14 March 2017 |
| Docket Number | No. A-16-255.,A-16-255. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. JONATHAN J. RIVERA, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County, ANDREW R. JACOBSEN, Judge, on appeal thereto from the County Court for Lancaster County, THOMAS W. FOX, Judge. Judgment of District Court affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Jonathan Rivera was found guilty of one count of driving while under the influence, second offense, over .15, on April 27, 2015. The county court for Lancaster County sentenced him to two years' probation, 30 days in jail, and a $1,000 fine. Rivera appealed his conviction to the district court, where it was affirmed. Rivera now appeals to this court. Following our review of the record, we affirm.
On May 24, 2014, Nebraska Game and Parks Commission conservation officers Travis Shepler and Dudley Sorensen were on patrol in the Branched Oak State Recreation Area. At approximately 10:35 p.m., they stopped to investigate a potential incident involving two groups of people on opposite sides of the road. Shepler was driving their patrol truck and he parked it on the paved roadway towards the right side. On either side of the paved roadway was a grassy shoulder. The patrol truck had red lights and Nebraska Game and Parks decals on it.
Both officers exited the patrol truck and approached both groups of people. Shepler then returned to the patrol truck to call dispatch while Sorensen remained out of the vehicle with the groups of people. While in the patrol truck, at approximately 10:40 p.m., Shepler saw a vehicle, driven by Rivera, approach from behind. The vehicle briefly stopped directly behind the patrol truck and then drove off the paved roadway onto the grass on the right-hand side of the road.
As the vehicle slowly passed the patrol truck on the right, Shepler testified that he became worried about the safety of the people standing near the edge of the roadway ahead of the vehicle. Shepler exited the patrol truck and walked around the front of it, towards the approaching vehicle. The other vehicle stopped when it was even with the patrol truck, approximately 15 to 20 feet away from the group of pedestrians. Rivera testified that he stopped because he saw Shepler's hand in the air near his head and he was under the impression that Shepler wanted him to stop, although Shepler said he did not recall making any gestures. At no point in time did Shepler activate the lights or siren on his patrol truck, block the vehicle from passing, or display his firearm.
Shepler approached the vehicle and made contact with the driver, later identified as Rivera. Shepler told Rivera that if he waited a few minutes, he would move his patrol truck. He did not ever tell Rivera that he was not free to go. Upon making contact with him, Shepler observed that Rivera had bloodshot, watery eyes, and slurred speech. When asked if he had been drinking, Rivera admitted that he had been. Shepler then initiated a driving under the influence investigation, which resulted in Rivera's arrest.
Rivera was charged with one count of driving under the influence, second offense, over .15. Rivera filed a motion to suppress and a hearing on the motion was held. The county court overruled Rivera's motion and, subsequent to a stipulated trial, found him guilty of the charge.
Rivera then appealed his conviction to the district court, alleging that the county court erred in overruling his motion to suppress. The district court affirmed Rivera's conviction. Rivera now appeals to this court.
Rivera assigns, restated, that the district court erred in affirming the county court's order overruling his motion to suppress.
In reviewing a trial court's order on a motion to suppress based on a claimed violation of the Fourth Amendment, appellate courts apply a two-part standard of review. State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014); State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014). Regarding historical facts, appellate courts review the trial court's findings for clear error. State v. Hill, supra. But whether those facts trigger or violate Fourth Amendment protections is a question of law that appellate courts review independently of the trial court's determination. Id.
Rivera argues that the district court erred in affirming the county court's order overruling his motion to suppress. He argues that his arrest was the result of Shepler unlawfully seizing his vehicle, thereby violating his Fourth Amendment rights against unreasonable search and seizure. Specifically, Rivera argues that there was no evidence that he had committed or was committing a crime and that the community caretaking exception to the Fourth Amendment did not apply under the circumstances. We disagree.
The Fourth Amendment guarantees the right to be free from unreasonable search and seizure. State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). This guarantee requires that an arrest be based on probable cause and limits investigatory stops to those made upon an articulable suspicion of criminal activity. Id. A traffic stop requires only that the investigating officer have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. Id. To determine whether there is reasonable suspicion for an officer to make an investigatory stop, the totality of the circumstances must be taken into account. Id.
In the absence of any evidence that a crime had been or was being committed, the court must determine whether any exceptions to the Fourth Amendment apply. State v. Rohde, 22 Neb. App. 926, 864 N.W.2d 704 (2015). One such exception is the community caretaker exception, first recognized by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523 (1973). The Court noted that:
The Nebraska Supreme Court adopted the community caretaker exception in State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007), and applied it to determine whether the seizure of a vehicle was reasonable. It held that to determine when the exception should apply, the court should assess the totality of the circumstances surrounding the stop, including all objective observations and considerations, as well as the suspicion drawn by a trained and experienced officer by inference and deduction. Id. If, based upon the totality of the circumstances, the seizing officer had a reasonable basis to believe his assistance was necessary, the stop is not unconstitutional. Id. The Nebraska Supreme Court also held that this exception should be narrowly and carefully applied in order to prevent its abuse. Id.
Nebraska law has applied the community caretaking exception in few reported appellate cases. It has been found to apply in three cases, including a case wherein a vehicle was being driven in an erratic manner, State v. Bakewell, supra; a case wherein a vehicle was stopped at an intersection for a period of several minutes, State v. Smith, 4 Neb. App. 219, 540 N.W.2d 374 (1995); and a case wherein a passenger was observed to have half of her body out of a moving vehicle's moon roof and was waving her arms, State v. Rohde, supra. While all of these cases haveconcerned an exigency or need to protect or assist an occupant of the vehicle in question, we find the same analysis to be applicable when those needing protection are located outside the vehicle. In fact, it was the general public that the Supreme Court sought to protect when first applying the community caretaker exception in Cady v. Dombrowski, supra.
In the present case, there was no indication when Shepler initially made contact with Rivera that Rivera had committed or was committing any crime. Shepler testified that he approached Rivera's vehicle as it passed his patrol truck on the right-hand side because he was concerned about the group of people along the roadway approximately 15 to 20 feet ahead of the vehicle and wanted to make sure that Rivera stopped before hitting them. He testified that his only concern was to keep the group, including his partner, Sorensen, safe. Rivera argues that the county and district courts erred in finding that the community caretaking exception to the Fourth Amendment applied under these circumstances because the record did not establish that there actually was a group of people near the roadway ahead of his vehicle. Moreover, he claims that even if the group of people was still present beside the road, there was no reason for Shepler to believe that they were in danger due to Rivera's driving since both Rivera and Shepler testified that his vehicle was moving at a slow speed, his headlights were illuminated, and Shepler conceded that Rivera could have maneuvered his truck back onto the paved roadway without striking anyone.
Under our two-part standard of review, we accept the factual findings of the trial court unless we find clear error. Here, the trial court found that there was a group of people standing in the dark near the roadway approximately 15 to 20 feet ahead of Rivera's vehicle. Furthermore, the county court found that Shepler approached Rivera's vehicle due to his concern for the safety of those people and the potential outcome if...
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