*1 Chambers, and State between this case The distinction today, (1992), decided is N.W.2d 219 also ante p. that the first decided establishes the record in the case whereas therein, court, specifically relied acting the trier of fact trial as finding speed limit had evidence in inadmissible on exceeded, not so demonstrate. the record in this case does been merely met Here, found that State had its the trial court proof. burden brief, reply remains for comment.
One other matter
appeal
question the amount of
attempts to
the defendant
However,
appellant’s reply brief is to
of an
bond.
against the
arguments
appellee
has advanced
respond to the
Black,
Keithley
initial brief.
appellant’s
in the
errors
appellee
Affirmed. v. Robert W. appellee, Nebraska, State of appellant.
Don and appellee. C.J., Caporale, Shanahan,
Hastings, Boslaugh, White, and J J. Grant, Fahrnbruch,
Per Curiam. Ryland deputy The Robert W. had no sheriff who arrested driving Ryland his motor cause to while he was vehicle, therefore, County jury Ryland’s Court and Garden driving conviction of while under the influence of alcoholic liquor, driving or while with a concentration of ten-hundredths by weight per alcohol 210 liters of his or or more breath, her must be reversed. conviction, reviewing appellate a criminal an court does evidence, credibility pass
not resolve conflicts of
on
witnesses,
explanations,
reweigh
evaluate
evidence. Such
fact,
matters are for the finder of
and the verdict must be
evidence,
favorably
sustained if the
viewed and
most
construed
State,
support
is sufficient to
the conviction. State v.
913,
two where he believed would be way through through verifying on his home. After sheriff’s name, deputy registered office that the car was it pulled patrol car when his behind automobile deputy entered activated his red the intersection. The headlights. flashed in this manner his He followed deputy The he over a mile. said that at no time while was behind did he rule of the observe violate stopping Ryland road and that the sole previous to obtain statement his about accidеnt. deputy Ryland stopped The testified that automobile, deputy feet parked his vehicle a few behind it. deputy approached The he the car had followed identified said, Ryland. Ryland the driver as testified that “ you moving ‘Mr. I am I not for a violation. you. you would give like to have a statement from Would me ” said, to, certainly.’ one?’ I happy And ‘Be “wobbly” testified that as he walked back patrol Ryland got car that after into the car the eyes watery noticed that wеre and bloodshot *3 Ryland speech attempted was slurred. to a write week, previous statement about the accident of the but was complete unable to the task. stated that he asked Ryland drinking, Ryland if he had been replied, tо which “Of Probably course. too much.” Ryland
After was to recite alphabet, unable the the officer Ryland arrested him. guilty, then the that “I’m told no arguing Ryland sense of transported about that.” was in the office, the car to sheriff’s where he consented to a breath test, which showed that his breath contained sixteen- per hundredths of of alcohol of breath. liters 19, 1989, hearing, Ryland July any At a to suppress moved against evidence him obtained on 19. June The State Ryland acknowledged that had not violated law when he by deputy. was the presence Before trial and out of the jury, the court adversely indicated that it had ruled to Ryland suppression on his motion. The court told the permitted object defendant’s counsel that he would be to of suppress, introduction the evidence the court refused but giving the reasons counsel must refrain that defendant’s “the constitutional objection. The trial court ruled that for his favor of Ryland] be resolved in [legality must issue of target of was not the the this defendant State because therefore, involved.” 4th Amendment is not investigation; the objection to the continuing a The court allowed stopped. was evidence obtained after trial, guilty found Follоwing jury a was liquor, or while the of alcoholic while under influence gram more with a concentration of ten-hundredths timely He of his or her breath. weight per of alcohol liters court, judgment affirmed the appealed to the district which county found that officer’s the court. The district court “the subsequent defendant’s vehicle and arrest stopping of a of his duties as a defendant was reasonable exercise circumstance; justified was not an officer and was under reasons; arbitrary pretext a and was not stop; not other rights.” violative of constitutional defendant’s assignments appeal, On first three of error combine finding (1) that the trial court erred in assert constitutionally permissible (2) stop of vehicle was receiving into at trial evidence and evidence stopped. statements obtained disagree with trial We court’s statement the Fourth U.S. is not in this Amendment Constitution involved case. person meaning
A is of the Fourth seized within only if, in Amendment tо the U.S. Constitution view of all the incident, surrounding person circumstances reasonable would have believed that he or she was not free to leave. See Prahin, 554 (1990). 235 Neb. N.W.2d Under being by patrol car pursued the circumstances of which had its flashing, headlights red a reasonable activated its he or she was not free person Ryland’s position would believe Furthermore, obeyed presence. had he not to leave the officer’s *4 Ryland could been in signals deputy, frоm the have these (Reissue 39-604(1) 1988), which violation of Neb. Rev. Stat. § knowingly “[a]ny who fails or refuses to provides person any any of law enforcement officer who is obey lawful order
controlling
directing
guilty
traffic shall be
aof
traffic
universally
infrаction.” It is
understood that when a law
enforcement patrol
following
car is
an automobile and the red
activated,
patrol
of the
activity by
car are
such
the driver
of the
car constitutes an order for the driver of the
being
automobile
stop.
followed to
Terry Ohio,
U.S. 1, 88 S. Ct.
Under
1868,
20 L. Ed. 2d
(1968), police
constitutionally stop
briefly
can
detain a
person
investigative
purposes
if the
have a reasonable
suspicion,
facts,
supported
activity
articulable
that criminal
exists,
even if
lacking
cause is
under the Fourth
92,
Amendment. State
Twohig,
238 Neb.
Similarly, case, the facts in undisputed, this also show that was not aware had violated rule of the road at the time he sole
79 a to obtain his statement about was deputy The had witnessed. previous accident that was acknowledged obtaining the statement emergency matter. not an deputy stop had no cause to
Because the suspicion had no reasonable and because the constitutionally activity, his actions were existence of criminal the Fourth Amendment impermissible under I, 7, of the of the United States and article § Constitution Nebraska. The trial court should have Constitution of suppress motion to and should have sustained by evidence obtained after the disallowed at trial stop. conviction for while under the
We reverse liquor or while with influence of alcoholic by weight more cоncentration of ten-hundredths per 210 liters of his or her breath. Because of alcohol all by evidence obtained sheriff was inadmissible over objection, we remand the cause to the district court with county directions to remand thе cause to the court with charge against Ryland. directions to dismiss the In view of our holding, remaining assignments we need not address of error.
Reversed
remanded
with
TO
DIRECTIONS
DISMISS.
J., dissenting.
Boslaugh,
to U.S.
The Fourth Amendment
Constitution and article
I, 7,
only
prohibit
of the Nebraskа Constitution
unreasonable
§
The issue is whether the seizure of the defendant was
seizures.
the issue
be
unreasonable. It seems to me that
must
resolved
all
the facts and circumstances in the case.
consideration of
324,
20,
Colgrove,
253 N.W.2d
In Statе v.
stopped
the officers who had
(1977), we noted that
process
not “in the
criminal
defendant were
might
it reasonable to make
investigation which
have made
occupants.”
inquiry of the car’s
Joao, Jr.,
216,
In
56 Haw.
State v.
officer who hаd been
defendant was
in which the
investigate
a traffic accident
defendant
was
been
After
believed
have
involved.
the defendant was
stopped,
passenger
the officer asked the defendant and a
automobile,
leаve the
after which a firearm was discovered in
lawful,
plain sight.
stop
held
court
but that the
request
passenger
the defendant and the
leave the
justified.
holding
stop
automobile was not
that the initial
lawful,
said:
court
proper.
The initial
in this сase was
Cf.
Tsukiyama,
Compare,
56 Haw.
Joao, Jr.,
See, also,
at
Michigan
Haw.
If case is understood to mean that any stop where the officer does not have a suspicion, reasonable facts, supported exists, activity articulable that criminal then goes it far. too interesting hypothetical
An situation consider be would determine what the officer should if stating do “ ” statement, that he would happy’ give had added: ‘[b]e dispose “Just as as I body soon of the dead in the trunk.” oins in this dissent. Hastings, J., j C.