State v. Remijio
A-16-561
| Neb. Ct. App. | Mar 21, 2017Background
- Deputies responded to a radio/neighbor report of a maroon Ford F-150 driving on its rims and located a matching F-150 at Remijio’s residence; deputies asked a nearby resident (Victoria Foote) to fetch the driver from the house.
- Foote, Remijio’s girlfriend, went inside, brought Remijio outside; deputies questioned him near a marked cruiser; deputies smelled alcohol and observed bloodshot, watery eyes and slurred speech.
- Remijio initially admitted ownership and earlier drinking, then later hesitated; deputies conducted field sobriety tests, a preliminary breath test, arrested him, and a DataMaster breath test showed BAC .272.
- Remijio moved to suppress, arguing (a) Foote acted as a state agent when retrieving him, (b) his removal and placement were a seizure/custodial interrogation requiring Miranda, and (c) subsequent physical and testimonial evidence was fruit of an illegal seizure.
- County court denied suppression (treating initial contact as tier-one, later detention as a Terry stop, and field tests as noncustodial); district court affirmed; appellate court reviews whether facts meet constitutional standards de novo and findings of fact for clear error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Foote acted as a government agent in bringing Remijio outside | Foote was intimidated/coerced by deputies and thereby acted as police instrument, making the extraction a seizure | Deputies merely asked politely; Foote voluntarily cooperated and was not commanded or compelled | Foote was not a state agent; cooperation was voluntary — no seizure on that basis |
| Whether initial contact was a seizure requiring Fourth Amendment protection | Removal from the home and directive where to stand converted encounter into seizure/custody | Initial contact was voluntary, noncoercive questioning in public location (tier-one) | Initial interaction was tier-one (nonseizure); not a Fourth Amendment seizure |
| Whether continued questioning and sobriety testing required reasonable suspicion / Miranda | Deputies interrogated without Miranda and turned a noncustodial encounter into custodial interrogation; statements and tests should be suppressed | Deputies developed reasonable suspicion (odor, red/watery eyes, slurred speech, admissions); field tests and preliminary questioning were noncustodial; Miranda not required until formal custody | Once suspicion developed, the encounter became a Terry stop (tier-two) but remained noncustodial; Miranda not required prior to field sobriety tests; statements and test results admissible |
| Whether arrest and evidence were fruits of unlawful seizure | Arrest and BAC evidence are tainted by prior illegal seizure/ interrogation | Arrest followed failed sobriety and breath tests providing probable cause; evidence independent and admissible | Arrest was supported by probable cause from tests; evidence admissible; suppression denied |
Key Cases Cited
- State v. Van Ackeren, 242 Neb. 479 (1993) (framework defining three-tier police–citizen encounters)
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes investigatory stop standard)
- State v. Pickinpaugh, 17 Neb. App. 329 (2009) (field sobriety tests justified by reasonable suspicion; tests not testimonial)
- State v. Ege, 227 Neb. 824 (1988) (informant eyewitness reports supply indicia of reliability for reasonable suspicion)
- State v. Avey, 288 Neb. 233 (2014) (standard of review for county court appeals and mixed fact-law review on suppression)
- State v. Casillas, 279 Neb. 820 (2010) (traffic investigatory detentions and routine field sobriety tests ordinarily noncustodial for Miranda purposes)