State v. Tingle
| Decision Date | 22 November 1991 |
| Docket Number | No. 90-538,90-538 |
| Citation | 239 Neb. 558,477 N.W.2d 544 |
| Parties | STATE of Nebraska, Appellee, v. Shirley L. TINGLE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings of fact are clearly erroneous.
2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme 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 the trial court has observed witnesses testifying in regard to such motion.
3. Police Officers and Sheriffs: Arrests: Jurisdiction. The power of a police officer at common law to make an arrest without a warrant is limited to the boundaries of the governmental unit by which he was appointed, unless the police officer is acting in fresh and continued pursuit of a suspected felon who has committed an offense in the officer's presence and within his territorial jurisdiction.
4. Police Officers and Sheriffs: Arrests: Jurisdiction: Statutes. A local peace officer acting outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute.
5. Police Officers and Sheriffs: Arrests: Drunk Driving: Jurisdiction: Statutes. There is no Nebraska statute authorizing a police officer of a city of the second class to arrest a suspect for misdemeanor driving while under the influence of alcohol outside the officer's geographical jurisdiction.
6. Statutes. Interpreting a statute is a question of law.
7. Appeal and Error. On questions of law, the Supreme Court has an obligation to reach a conclusion independent of that reached by the trial court.
8. Statutes: Legislature: Intent. The obligations of the court in consideration and application of a statute is to determine and give effect to the purpose and intention of the Legislature as ascertained from the entire language thereof considered in its plain, ordinary, and popular sense.
9. Statutes. Statutes which effect a change in the common law or take away a common-law right should be strictly construed.
10. Statutes. In construing a statute, courts will try to avoid a construction which lends itself to an absurd, unjust, or unconscionable result.
11. Police Officers and Sheriffs: Misdemeanors: Jurisdiction: Case Overruled. To the extent that State v. Green 236 Neb. 33, 458 N.W.2d 472 (1990), implies that fresh pursuit outside an officer's geographical jurisdiction is applicable to misdemeanor suspects, it is overruled.
12. Constitutional Law: Search and Seizure: Evidence: Trial. Evidence obtained as the fruit of an illegal search or seizure, in violation of the fourth amendment to the U.S. Constitution and Neb. Const. art. I, § 7, is inadmissible in a state prosecution and must be excluded.
13. Criminal Law: Arrests. Although the illegality of the arrest in question gives rise to collateral rights and remedies such as the exclusionary rule, it ordinarily is not a defense to the crime for which the arrest is made.
14. Motions to Dismiss. The act of a defendant in adducing evidence after the defendant's motion to dismiss is overruled at the close of the State's evidence operates as a waiver of any error in the trial court's overruling of the motion.
Mark A. Johnson, Norfolk, for appellant.
Robert M. Spire, Atty. Gen., and Donald E. Hyde, Lincoln, for appellee.
Claiming that evidence obtained after she was arrested should have been suppressed, Shirley L. Tingle appeals her conviction for second-offense driving while under the influence of alcohol (DWI). She originally was convicted in the Antelope County Court. Tingle appealed to the district court for Antelope County, which affirmed the defendant's conviction.
We agree with Tingle that in the absence of statutory authority it is not permissible for a police officer in a city of the second class to pursue and arrest a misdemeanant suspect beyond the limits of the officer's geographical jurisdiction.
Since Tingle was arrested outside the arresting officer's geographical jurisdiction, evidence obtained as a result of the defendant's arrest should have been suppressed. We therefore reverse the conviction and remand the cause to the district court, with instructions to remand it to the trial court for a new trial.
The record reflects that on August 31, 1989, at approximately 2 p.m., Officer Arvin Brandt of the Neligh Police Department received a radio dispatch requesting his presence at the Antelope County sheriff's office. Upon reaching that office, Brandt met Thomas Lanz, an insurance adjuster for Farm Bureau Insurance Company, who reported that Tingle had been in his place of business and appeared intoxicated. Lanz observed that Tingle did not park her car straight in front of his office, that she was unsure of her footing as she walked into his office, that she had trouble opening the door, and that, once inside, Tingle's speech was slurred while she conversed with Lanz. Lanz described Tingle's automobile to Brandt, although the officer already knew the vehicle Tingle drove.
Brandt located the vehicle, parked in downtown Neligh, a city of the second class. The officer parked his cruiser and waited for Tingle to return to her vehicle. When Tingle returned to her vehicle, Brandt observed her as she drove first back to the insurance office momentarily and then west away from Neligh. Brandt followed immediately behind the defendant's vehicle. While within the city limits, Brandt observed Tingle's vehicle weave twice across the white line on the shoulder of the road about half the width of her vehicle and then twice across the centerline, once at least one-fourth the width of her vehicle. Brandt activated his overhead lights in an attempt to stop the defendant. Tingle passed another vehicle, at which time Brandt turned on his siren. Tingle failed to stop until she was 3 miles outside the Neligh city limits. Her speed hit 72 m.p.h. in a 55-m.p.h. zone. It was approximately 2:30 p.m. when Tingle was stopped on the highway.
Upon approaching the defendant's vehicle, Brandt noticed a slight odor of alcohol about Tingle. When asked to produce her driver's license, Tingle fumbled through her billfold and produced a credit card. Then, in the presence of a sheriff's deputy and a matron who had arrived at the scene at Brandt's request, Brandt asked Tingle to step out of the car and perform two field sobriety tests. After she failed these tests, Brandt placed Tingle under arrest for DWI and transported her to the sheriff's office. After signing an implied consent form, Tingle was given a breath test at 3:06 p.m. That showed a result of .188 grams of alcohol per 210 liters of Tingle's breath. Neb.Rev.Stat. § 39-669.07(3) (Reissue 1988) provides in substance that it shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle "[w]hen such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath."
Tingle was charged with DWI, second offense, a Class W misdemeanor under § 39-669.07. Her motion to suppress evidence obtained as a result of her arrest was overruled. Subsequently, a jury found Tingle guilty of driving while under the influence of alcohol, and thereafter, the court found the conviction to be Tingle's second offense. The defendant was sentenced to 30 days in jail and fined $500, and her driver's license was suspended for 1 year. The district court for Antelope County affirmed Tingle's conviction and sentence, and the defendant timely appealed to this court.
In her first assignment of error, Tingle claims that
the lower court erred by failing to suppress any and all evidence obtained from the defendant, including statements by defendant, breath test results and officers' observations after defendant's arrest, as such arrest was made by an officer of the city of Neligh, Nebraska, outside the officer's jurisdiction to arrest, and as such such evidence was seized as the result of an exploitation of an illegal arrest.
In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings of fact are clearly erroneous. State v. Gibbs, 238 Neb. 268, 470 N.W.2d 558 (1991). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme 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 the trial court has observed witnesses testifying in regard to such motion. State v. Walker, 236 Neb. 155, 459 N.W.2d 527 (1990).
"[T]he power of a police officer at common law to make an arrest without a warrant is limited to the boundaries of the governmental unit by which he was appointed, unless the police officer is acting in fresh and continued pursuit of a suspected felon who has committed an offense in the officer's presence and within his territorial jurisdiction."
Com. v. O'Hara, 30 Mass.App. 608, 609, 571 N.E.2d 51, 52 (1991), quoting Commonwealth v. Grise, 398 Mass. 247, 496 N.E.2d 162 (1986). It is clear that the common-law exception of "fresh pursuit" does not apply to Tingle's case. As stated, DWI under § 39-669.07 is a misdemeanor, whereas common-law fresh pursuit is limited to felonies.
There being no authority under common law to arrest a misdemeanant suspect outside an officer's geographical jurisdiction, ...
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