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Slip Opinion
Neb. Ct. App.
2017
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Background

  • At ~10:40 p.m. at Branched Oak State Recreation Area, Game & Parks officers parked a marked patrol truck near the right side of a dark, two-vehicle-wide paved road where groups of people were present on the shoulders.
  • Officer Shepler returned to the patrol truck to call dispatch; Officer Sorensen remained with the groups. Rivera approached in his vehicle, briefly stopped behind the patrol truck, then drove onto the grassy right shoulder and passed slowly on the right.
  • Shepler walked around his truck toward Rivera’s approaching vehicle because he was concerned the vehicle might strike pedestrians ~15–20 feet ahead; he did not activate lights/siren or display a weapon and did not tell Rivera he was not free to go.
  • Shepler contacted Rivera at the window, observed bloodshot eyes and slurred speech, asked about alcohol, initiated a DUI investigation, and arrested Rivera; Rivera was convicted of DUI (second offense, BAC over .15).
  • Rivera moved to suppress evidence, arguing the stop was an unlawful seizure (no crime or reasonable suspicion) and that the community caretaking exception did not apply; the county court denied suppression, the district court affirmed, and the appellate court (this opinion) affirmed.

Issues

Issue Rivera's Argument State's Argument Held
Whether the contact/stop of Rivera’s vehicle was an unlawful seizure under the Fourth Amendment No crime or reasonable suspicion; officer unlawfully seized vehicle; community caretaking exception inapplicable Officer’s brief stop was reasonable under the community caretaking exception to protect pedestrians and officers; alternatively, contact was voluntary (tier-one) Court held stop reasonable under the community caretaking exception and affirmed denial of suppression
Whether the community caretaking exception may apply when those needing protection are outside the vehicle Exception should not extend to protecting third parties absent clear exigency Exception can apply to protect pedestrians and the public under totality of circumstances Court applied Bakewell/Rohde totality test and found objective and subjective facts supported exception
Whether officer created the exigency by positioning the patrol truck Rivera: officer blocked roadway and manufactured the exigency State: roadway allowed passing on left; exigency arose when Rivera passed on right where pedestrians stood Court found exigency resulted from Rivera passing on right; officer did not improperly create the emergency
Whether the stop exceeded its permissible scope / least intrusive means available Rivera: officer could have used hand gestures rather than approaching; intrusion was excessive State: hand gestures were inadequate in dark; contact was necessary to ensure safety Court found approach reasonable given darkness and confusion; scope not excessive

Key Cases Cited

  • Cady v. Dombrowski, 413 U.S. 433 (U.S. 1973) (recognizing police community-caretaking functions separate from criminal investigation)
  • State v. Bakewell, 273 Neb. 372 (Neb. 2007) (adopting narrow, totality-of-the-circumstances test for community-caretaking stops)
  • State v. Rohde, 22 Neb. App. 926 (Neb. Ct. App. 2015) (applying community-caretaking exception to vehicle stop where occupant conduct posed safety concern)
  • State v. Hill, 288 Neb. 767 (Neb. 2014) (standard of review for suppression rulings: factual findings for clear error; Fourth Amendment questions reviewed de novo)
Read the full case

Case Details

Case Name: State v. Rivera
Court Name: Nebraska Court of Appeals
Date Published: Mar 14, 2017
Citations: 2017 WL 977345; A-16-255
Docket Number: A-16-255
Court Abbreviation: Neb. Ct. App.
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