State v. Thomte

• Decision Date: 16 October 1987
• Docket Number: No. 87-052,87-052
• Citation: 226 Neb. 659,413 N.W.2d 916
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Dennis L. THOMTE, Appellant.

Page 916

413 N.W.2d 916

226 Neb. 659

STATE of Nebraska, Appellee, v. Dennis L. THOMTE, Appellant.

No. 87-052.

Supreme Court of Nebraska.

Oct. 16, 1987.

Syllabus by the Court

1. Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.

2. Criminal Law: Investigative Stops: Probable Cause. An investigatory stop must be justified by an objective manifestation that the person stopped has been, is, or is about to be engaged in criminal activity.

3. Drunk Driving: Investigative Stops: Probable Cause. A vehicle weaving in its own lane of traffic provides an articulable basis or reasonable suspicion for stopping a vehicle for investigation regarding the driver's condition in operating the weaving vehicle. Such a circumstance supports an officer's justifiable belief that the weaving vehicle is being driven by a person who is under the influence of alcohol, in violation of the drunk driving statute, Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1986).

4. Police Officers and Sheriffs: Drunk Driving: Witnesses. A police officer, as a nonexpert witness, may testify regarding his or her opinion about another's state of intoxication, provided the officer has made detailed observations upon which the opinion is based.

5. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

James E. Schaefer, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Yvonne E. Gates, Lincoln, for appellee.

BOSLAUGH, C.J. Pro Tem., WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

The appellant, Dennis L. Thomte, was charged with operating a motor vehicle while he was under the influence of alcohol or when he had ten-hundredths of 1 percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine, in violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1986). Having been convicted of that charge in the county court for Douglas County, Thomte appealed his conviction to the district court for Douglas County, which affirmed the county court's judgment of conviction.

At approximately 11 p.m. on April 25, 1986, Sgt. Timothy Cavanaugh was driving his cruiser southbound in moderate traffic on Interstate 680 within Omaha, which highway has two marked lanes for southbound traffic. Cavanaugh, driving in the left lane, approached other southbound vehicles in the right lane. As Cavanaugh began to overtake a Cadillac, which was being followed by other vehicles, the Cadillac made a sharp weave from right to left within the right lane but did not cross into the left lane occupied by Cavanaugh's cruiser. Cavanaugh reduced his cruiser speed to approximately 45 miles per hour and pulled into the right lane, ahead of traffic which was still following the Cadillac. During his observation of the Cadillac as it traveled 16 blocks, or a little over 1 mile, on I-680, Cavanaugh saw the Cadillac again weave within the right lane of traffic and, as the Cadillac was about to exit from the Interstate, activated the cruiser's red rotating lights. The Cadillac pulled to the right shoulder of the road and stopped. Cavanaugh parked his cruiser directly behind the Cadillac and then approached the vehicle, where he found Thomte inside and alone. Illumination at that point was provided by Cavanaugh's flashlight and street lamps on the Interstate. When he arrived at the Cadillac, Cavanaugh asked for Thomte's driver's license and the vehicle registration. Thomte told the officer that he was tired, and the officer observed that Thomte's "speech was very slurred and thick-tongued, mumbled, if you will. And I noticed a moderate odor of alcohol" on Thomte's breath.

Cavanaugh asked Thomte to get out of the Cadillac and perform some field sobriety tests. When Thomte said he knew the alphabet, he attempted to recite the alphabet, but, according to Cavanaugh: "He got through the letter 'N', with no problems, and then he just jumbled the rest, so I couldn't make out what letters he was saying. So I asked him to repeat. He got to the letter, 'H', and just stopped." Thomte was then asked to perform a balance test, where Thomte stood on his left leg and, while so standing, would attempt to swing his right leg forward and backward. Thomte lost his balance during three unsuccessful attempts at such balance test. In another field sobriety test, the finger-to-nose test, where the subject extends both arms and then attempts to touch his nose with the index finger of each hand, Thomte satisfactorily touched his nose with the index finger of his left hand but missed his nose in the attempt with his right hand. Because it started to rain, Thomte and Cavanaugh got into the cruiser, and Cavanaugh summoned another officer to administer an "Alco-Sensor" test. Shortly thereafter, an Officer Siebken arrived and administered the Alco-Sensor test. Cavanaugh placed Thomte under arrest and transported him in the cruiser to Central Police Station for the purpose of a breath test through an Intoxilyzer Model 4011AS, which was administered by a police department technician.

Cavanaugh testified that, during his 5 1/2 years on the police force, he had observed the conduct of people who had consumed alcohol, had made several hundred arrests for drunk driving, and had made arrests for many offenses other than drunk driving committed by persons who had consumed alcohol. Also, Cavanaugh testified concerning Thomte's physical appearance when he encountered Thomte on the Interstate and Thomte's inability to perform most of the field sobriety tests. During further testimony, Cavanaugh related events at the police station after Thomte had been advised of his Miranda rights. As testified by Cavanaugh, Thomte said he had been drinking since 6 p.m. and had consumed three glasses of wine. Cavanaugh expressed his opinion that Thomte was under the influence of alcohol at the time the officer stopped the Thomte vehicle on the Interstate. On cross-examination, Cavanaugh testified that Thomte had stated that he was taking medication, Calan. The technician who had administered the Intoxilyzer test testified that the Intoxilyzer's digital readout was ".135."

Thomte testified that he had three or four glasses of wine but had ceased drinking any alcohol at least 1 1/2 hours before he was arrested by Cavanaugh. Thomte generally disagreed with Cavanaugh's description of events on the Interstate leading up to the arrest, and testified that Calan contains acetone. Thomte also testified that he was not under the influence of alcohol when stopped by Cavanaugh. In rebuttal, the State recalled the technician who administered the Intoxilyzer test, and the technician testified that any acetone would cause the Intoxilyzer to cancel the test being administered if acetone is present in the breath sample sufficient to affect the test. At the conclusion of the evidence, the court stated: "The Court finds the defendant guilty." On appeal to the district court, the county court's judgment was affirmed. Thomte now appeals to this court.

Thomte alleges that the trial court erred in (1) not finding that the investigatory stop occurred without probable cause; (2) not finding that the search and seizure was unreasonable and without probable cause; (3) not finding that there was insufficient evidence to find Thomte guilty beyond a reasonable doubt; (4) admitting the results of the preliminary breath test; and (5) accepting the results of the breath test without adjusting it so as to give Thomte the benefit of the margin of error.

Thomte first argues that the initial stop of his vehicle was without probable cause. However, Thomte's roadside detention is more accurately classified as a stop and search situation subject to the guidelines pronounced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the U.S. Supreme Court said: "[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, supra at 22, 88 S.Ct. at 1880. See, also, State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983); State v. Ebberson, 209 Neb. 41, 305 N.W.2d 904 (1981). An investigatory stop must be justified by an objective manifestation that the person stopped has been, is, or is about to be engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986); State v. Ebberson, supra.

Police officers must have a particularized and objective basis for suspecting the person stopped of criminal activity. The assessment of...