State v. Petsch
300 Neb. 401
Neb.2018Background
- Officer Aksamit observed a white SUV with an expired license plate, followed it after making a U-turn, and activated lights/siren when he believed the driver attempted to flee.
- The SUV continued driving for about 45 seconds on side streets before stopping; Aksamit approached with his service revolver drawn (pointed down) but holstered it after the driver, Adam Petsch, exited and complied.
- Petsch was handcuffed and placed in the patrol vehicle for officer safety; he declined field sobriety testing and refused consent to search the SUV.
- Officers detected a strong odor of alcohol emanating from Petsch; a subsequent search of the SUV revealed alcohol containers; a breath test at detox read .286.
- Petsch was charged with DUI and driving with fictitious plates; he moved to suppress evidence claiming lack of reasonable suspicion/probable cause for the stop, handcuffing, and DUI arrest; county court denied suppression, district court affirmed after appeal, and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether handcuffing at the scene constituted an arrest lacking probable cause | Petsch: handcuffing at gunpoint was an arrest and lacked probable cause | State: handcuffing was for officer safety; objectively facts supported arrest for fleeing | Court: Handcuffing supported by probable cause for fleeing; no error |
| Whether flight from officer gave probable cause to arrest for fleeing to avoid arrest | Petsch: flight did not justify arrest under § 28-905 | State: objective facts (flight after lights/siren) provided probable cause for that offense | Court: Probable cause existed to arrest for fleeing in a vehicle |
| Whether officers had probable cause to arrest Petsch for DUI | Petsch: lack of typical DUI indicia (no slurred speech, no bloodshot eyes, no erratic driving) and no completed field tests | State: totality (odor of alcohol, slowed responses, confusion, stumbling, refusal of tests) supported probable cause | Court: Totality supported probable cause for DUI arrest |
| Whether denial of suppression and resulting convictions were proper | Petsch: evidence should be suppressed; convictions unsupported | State: evidence lawfully obtained after valid arrest; breath result further supports conviction | Court: Denial of suppression affirmed; convictions affirmed (breath .286 sufficient) |
Key Cases Cited
- Devenpeck v. Alford, 543 U.S. 146 (2004) (officer's subjective intent irrelevant when objective facts provide probable cause)
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (avoid excessively technical dissection of probable-cause factors; assess totality of circumstances)
- State v. Botts, 299 Neb. 806 (2018) (Nebraska case on similar facts; discussed in opinion)
- State v. McClain, 285 Neb. 537 (2012) (probable cause standard and totality of circumstances)
- State v. Rogers, 297 Neb. 265 (2017) (procedural rule: appellate review considers all evidence from suppression hearings and trial)