State v. Van Winkle
| Decision Date | 26 May 2015 |
| Docket Number | No. A-14-359.,A-14-359. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. GARY E. VAN WINKLE, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge, on appeal thereto from the County Court for Scotts Bluff County, KRISTEN D. MICKEY, Judge. Judgment of District Court affirmed.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Gary Van Winkle was convicted and sentenced in the county court for Scotts Bluff County for driving while under the influence. The district court for Scotts Bluff County affirmed his conviction and sentence. On appeal, Van Winkle alleges that the county court erred in failing to sustain his motion to suppress, failing to direct a verdict, improperly instructing the jury, and imposing an excessive sentence. Based on the reasons that follow, we affirm.
On March 16, 2013, at approximately 12:35 a.m., the vehicle driven by Van Winkle was stopped at a vehicle checkpoint in Scottsbluff, Nebraska, set up by the Nebraska State Patrol.Nebraska State Patrol Trooper Nicholas Goodwin approached the vehicle and asked to see Van Winkle's license, vehicle registration, and proof of insurance. Goodwin testified that Van Winkle had a confused look on his face when he initially asked for these items. Goodwin noted that Van Winkle's eyes were bloodshot and watery and that an odor of alcohol was coming from the vehicle. Goodwin asked Van Winkle if he had been drinking and he denied that he had been.
Goodwin asked Van Winkle to move his vehicle over to the side of the road and exit it, which Van Winkle did. When Van Winkle was outside his vehicle, Goodwin detected the odor of alcohol coming from Van Winkle's person. Goodwin decided to administer field sobriety tests. Before doing so, Goodwin asked Van Winkle if he was on any medications, and Van Winkle responded that he had taken a prescribed muscle relaxer about 12 hours before the stop. Goodwin administered field sobriety tests, and Van Winkle showed impairment while performing the tests. Based on Goodwin's contact with Van Winkle and his performance on the field sobriety tests, Goodwin concluded that Van Winkle was under the influence of alcohol, and placed him under arrest for driving under the influence. A complaint was subsequently filed charging him with driving under the influence of alcoholic liquor or drug over .15, second offense.
Van Winkle filed a motion to suppress, asking the court to suppress "all fruits of the illegal search and seizure, and his subsequent arrest." At the hearing on the motion, the State presented evidence regarding the establishment and administration of the vehicle checkpoint. The plan for setting up the checkpoint in Scottsbluff where Van Winkle was stopped, was prepared by Sergeant Kevin Krzyzanowski of the Nebraska State Patrol. Krzyzanowski presented the plan to Nebraska State Patrol Lieutenant Jamie Balthazor, who as a supervisor had the authority to approve the plan. However, State Patrol policy provides that a supervisor who is going to attend the checkpoint cannot be the supervisor who approves the plan. Balthazor thought he might participate in the checkpoint so he presented the plan to Lieutenant Lance Rogers, who was also a supervisor with the authority to approve the plan. Rogers approved the plan in Balthazor's presence. The written plan for the checkpoint and the State Patrol's policy for checkpoints was entered into evidence.
Krzyzanowski testified that he was the supervisor of the checkpoint, and his main concern as the supervisor was making sure the State Patrol's policies for vehicle checks were followed. He also testified that the checkpoint was operated according to the plan.
The county court denied Van Winkle's motion to suppress. It found that the "limited special purpose checkpoint" was followed, and that there was reasonable and articulable suspicion that Van Winkle had committed or was committing a crime. The court further noted that the testimony showed that the checkpoint was not for general law enforcement purposes, but was a specific limited purpose checkpoint looking for license, registration and insurance, and any traffic violations that would have occurred.
The case proceeded to a jury trial. At the start of trial, Van Winkle renewed his objection to any evidence obtained from the checkpoint. The county court stated that its decision on the motion to suppress would stand, and allowed Van Winkle a continuing objection on the issue.
Goodwin was the only witness to testify at trial. He gave testimony regarding his observations and the events that occurred from the time of his initial contact with Van Winkle until his arrest. At the end of the State's evidence, Van Winkle motioned for a directed verdict on twoissues. First, Van Winkle argued that there had been no evidence of his blood alcohol level and therefore, a directed verdict should be granted on the allegation that his blood alcohol level was "over .15." The State conceded that a directed verdict should be granted on that issue, and the county court granted a directed verdict as to the "over .15" allegation. Second, Van Winkle argued that a directed verdict should be granted on the issue of whether he was driving while under the influence of a drug. The State objected, arguing that there was evidence that Van Winkle had taken a drug, and that was enough to overcome a directed verdict. The trial court agreed with the State and did not sustain Van Winkle's motion for directed verdict on the driving under the influence of a drug issue. Van Winkle rested without presenting any evidence.
At the jury instruction conference, Van Winkle objected to the "under the influence of a drug" language being included in three jury instructions. The county court overruled the objections.
The jury found Van Winkle guilty of driving under the influence. The county court found the prior offense as alleged in the complaint was not valid and sentenced him as a first time offender. The court sentenced him to 30 days in jail and ordered him to pay a $500 fine. Van Winkle appealed to the district court, which affirmed his conviction and sentence.
Van Winkle assigns that the county court erred in (1) failing to sustain his motion to suppress because the checkpoint was constitutionally invalid, (2) admitting hearsay statements at the motion to suppress hearing, (3) failing to direct a verdict on the "under the influence of a drug" part of the charge, (4) improperly instructing the jury on elements not proven at trial, and (5) imposing an excessive sentence.
In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. But we independently review questions of law in appeals from the county court. Id.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Piper, supra. Regarding historical facts, we review the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination. Id.
Motion to Suppress/Constitutionality of Checkpoint.
Van Winkle first argues that the county court erred in failing to sustain his motion to suppress evidence obtained as a result of the stop because the checkpoint was unconstitutional.
The Nebraska Supreme Court recently held that a checkpoint is constitutional if it is established for a permissible purpose, involves only minimal intrusion, and is not operated according to the unfettered discretion of law enforcement officers. See State v. Piper, supra.
Van Winkle contends that the checkpoint was unconstitutional for several reasons. He first argues that the checkpoint subjected motorists to the unfettered discretion of law enforcement officers because the plan for the checkpoint was "not formulated by a person at the policy making level, but by a person involved in the field." Brief for appellant at 11. The State Patrol has a policy which must be followed to avoid unfettered discretion. A section of the policy provides that "A decision to conduct a vehicle check or limited special purpose checkpoint must be made by a neutral source, such as a supervisor who is not involved in conducting the operation in the field." Van Winkle contends that because the plan for the checkpoint was made by Krzyzanowski, an officer in the field who worked at the checkpoint, it was not formulated by a supervisor or someone at the policy making level, thereby violating the policy. Van Winkle cites to State v. Crom, 222 Neb. 273, 277, 383 N.W.2d 461, 463 (1986), in which the Court held that a checkpoint subjected motorists to the "unfettered discretion of the officers in the field" and was thus unconstitutional, because "there was no plan formulated at the policymaking level."
In State v. Piper, supra, the Nebraska Supreme Court recently addressed what "formulated" means as used in State v. Crom, supra. The...
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