State v. Sparr

• Decision Date: 23 November 2004
• Docket Number: No. A-03-1346.,A-03-1346.
• Citation: 688 NW 2d 913,13 Neb. App. 144
• Parties: STATE OF NEBRASKA, APPELLEE, v. CRYSTAL R. SPARR, APPELLANT.
• Court: Nebraska Court of Appeals

13 Neb. App. 144

688 NW 2d 913

STATE OF NEBRASKA, APPELLEE, v. CRYSTAL R. SPARR, APPELLANT.

No. A-03-1346.

Nebraska Court of Appeals.

Filed November 23, 2004.

Mark E. Rappl for appellant.

John C. McQuinn, Chief Lincoln City Prosecutor, for appellee.

INBODY, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

INTRODUCTION

Crystal R. Sparr appeals the decision of the Lancaster County District Court affirming the Lancaster County Court's order finding Sparr guilty of driving under the influence of alcohol (DUI) and sentencing her to 12 months' probation. We address the legality of a police officer's detention of Sparr, an "innocent by-stander" at a crime investigation scene, followed by her arrest.

FACTUAL BACKGROUND

On December 6, 2002, at about 1:10 a.m., in the area of 11th and F Streets in Lincoln, Nebraska, Sparr was dropped off at her parked vehicle by her friend Kristina Mahoney. As Sparr entered her vehicle, which was legally parked in a residential area, Officer Daren Reynolds of the Lincoln Police Department stopped Mahoney's vehicle, northbound on 11th Street, for impeding traffic. In making the traffic stop, Reynolds activated his cruiser's overhead lights and positioned his cruiser offcenter to the left of Mahoney's vehicle by half a vehicle's width and 15 feet behind Mahoney's vehicle. Sparr's vehicle was in the parking lane directly to the east of the cruiser. Reynolds approached Mahoney's vehicle, asked her for her license and registration, informed her of the purpose for the stop, and then returned to his cruiser. He then repositioned his cruiser farther to the left of Mahoney's vehicle because he wanted to capture with the cruiser's video camera the field sobriety test he intended to administer to Mahoney, having smelled alcohol on her breath. As he exited his cruiser to return to Mahoney, he observed Sparr's vehicle move backward about 3 to 5 feet. He then pointed at Sparr and told her, "`No.'" Sparr stopped her vehicle and waited. Reynolds had Mahoney exit her vehicle, and then he conducted a number of field sobriety tests which led to Mahoney's arrest for suspicion of DUI. This entire process took 10 minutes.

Reynolds then approached Sparr's vehicle and asked her for her license and registration because she had been a passenger in Mahoney's vehicle; the information on those documents would be placed on the report of Mahoney's arrest as a matter of standard procedure. Upon contacting Sparr, Reynolds immediately smelled a "strong odor of alcohol" on her breath. He then told her that she may be too drunk to drive and that another officer would be called to test her. Sparr was subsequently arrested for DUI.

PROCEDURAL BACKGROUND

Sparr was charged in Lancaster County Court for DUI. Sparr filed a motion to suppress, a hearing was held, and the county court overruled the motion. The court reasoned that Sparr "was not detained for the purpose of investigating her for a crime, so therefore the subsequent evidence gathered against her once she had personal contact with . . . Reynolds was not in violation of her constitutional rights." The case proceeded to trial, where Sparr made a continuing objection to any evidence gathered after her arrest due to an unlawful detention, as argued in the motion to suppress. The court overruled the objection and found Sparr guilty of DUI. She was sentenced to 12 months' probation.

Sparr appealed her conviction and sentence, as well as the county court's order denying the motion to suppress, to the district court. The district court found that the county court had properly overruled the motion to suppress, and it affirmed the county court's judgment and sentence. Sparr timely appeals.

ASSIGNMENT OF ERROR

Sparr asserts that the "district court committed reversible error in affirming the county court's overruling of [her] motion to suppress and thus allowing into evidence at the trial of this matter, over [her] objection, any evidence seized by law enforcement" because such seizure was in violation of article I, § 7, of the Nebraska Constitution and the 4th and 14th Amendments to the U.S. Constitution.

STANDARD OF REVIEW

[1-3] Upon appeal from a county court in a criminal case, a district court acts as an intermediate appellate court, rather than as a trial court, and its review is limited to an examination of the county court record for error or abuse of discretion. State v. Koncaba, 12 Neb. App. 378, 674 N.W.2d 485 (2004). Both a district court and a higher appellate court generally review appeals from a county court for error appearing on the record. Id. In reviewing a trial court's ruling on a motion to suppress evidence, ultimate determinations of reasonable suspicion are reviewed de novo by an appellate court, while findings of historical fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).

ANALYSIS

[4] We begin with the proposition that a person is not protected by the Fourth Amendment from any government intrusion, but only those actions that are unreasonable. State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990).

[5] Evidence obtained as the fruit of an illegal search or seizure, in violation of the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, is inadmissible in a state prosecution and must be excluded. State v. Koncaba, supra.

The Nebraska Supreme Court in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993), discussed the three levels, or categories, of police-citizen encounter, each of which triggers a different analysis of the balance between the government's need to search and the invasion of privacy that such search entails. The first category, which is outside the Fourth Amendment's protection, involves no restraint of the citizen's liberty, but, rather, the officer elicits the voluntary cooperation of the citizen through noncoercive questioning. The second category is the investigative stop, defined by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry stop is "`limited to brief, non-intrusive detention during a frisk for weapons or preliminary questioning'" and is considered a "`"seizure"'" for the purpose of invoking Fourth Amendment rights. State v. Van Ackeren, 242 Neb. at 486, 495 N.W.2d at 636. The third category of encounter is the arrest—a highly intrusive or lengthy search or detention. An arrest must be justified by probable cause to believe that a person has committed or is committing a crime. See State v. Van Ackeren, supra.

[6,7] It is Sparr's contention that Reynolds' actions in placing his cruiser next to her vehicle, obstructing her exit, and then authoritatively stating "`No'" when she attempted to leave constituted a seizure which invoked the protections of the U.S. and Nebraska Constitutions. "A person is seized within the meaning of the fourth amendment 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." State v. Prahin, 235 Neb. 409, 413, 455 N.W.2d 554, 558 (1990), citing United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Seizure, for the purpose of the Nebraska Constitution, requires either an officer's application of physical force to a suspect or a suspect's submission to an officer's show of authority. See State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993). See, also, State v. Boysaw, 228 Neb. 316, 422 N.W.2d 346 (1988) (seizure occurs when reasonable person would have believed that his or her freedom of movement had been restrained, either by means of physical force or by show of authority); State v. Horn, 218 Neb. 524, 357 N.W.2d 437 (1984) (circumstances that might indicate seizure even where person did not attempt to leave might be use of language or tone of voice indicating that compliance with officer's request might be compelled).

The county court found that Sparr

was not detained for the purpose of investigating her for a crime, so therefore the subsequent evidence gathered against her once she had personal contact with . . . Reynolds was not in violation of her constitutional rights. There is no evidence she could not have walked away from her vehicle if she did not wish to wait for the conclusion of the officer[']s investigation of [Mahoney.] Reynolds had a duty to protect [Mahoney,] who was being required to perform field sobriety tests in the street. . . . Reynolds knew Sparr was a witness to the [potential DUI] he was investigating and he was entitled to contact her as part of his investigation as long as his actions were reasonable under the circumstances.

In affirming the county court's order, the district court found that although Sparr's vehicle's movement was restricted, "[i]t does not necessarily follow that a person is subjected [sic] to a seizure just because their vehicle is seized or its movement restricted." However, "in view of all the circumstances," the district court wrote, "a reasonable person in [Sparr's] position might not have believed they were free to leave and arguably a seizure occurred." Therefore, the district court assumed that a seizure occurred, but found that the detention was reasonable because Sparr was a passenger in Mahoney's vehicle and a witness to Mahoney's criminal activity. The court also found that the detention lasted only 10 minutes and that such time was reasonable in light of all the circumstances.

Reynolds testified that Sparr would have had to "maneuver" her vehicle to get out of the parking area due to the location of his cruiser next to her parked vehicle. Although she tried to leave the area at one point, when she backed her vehicle up 3 to 5 feet, Reynolds "rather strongly" told Sparr "`No,'" intending that she "stay where she was at." At that point, she stopped moving the vehicle and complied with his...