Slip Opinion
Neb. Ct. App.2017Background
- 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)