State v. Bromm ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. BROMM
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
RANDALL J. BROMM, APPELLANT.
Filed May 7, 2013. No. A-11-718.
Appeal from the District Court for Washington County, JOHN E. SAMSON, Judge, on
appeal thereto from the County Court for Washington County, C. MATTHEW SAMUELSON, Judge.
Judgment of District Court affirmed.
John A. Svoboda, of Gross & Welch, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
INBODY, Chief Judge, and IRWIN and SIEVERS, Judges.
SIEVERS, Judge.
INTRODUCTION
Randall J. Bromm appeals from an order of the district court for Washington County
affirming the Washington County Court’s order denying Bromm’s motion to suppress and
finding him guilty of driving under the influence (DUI) pursuant to Neb. Rev. Stat. § 60-6,196
(Reissue 2010). The law enforcement officer’s factual basis for the initial traffic stop of Bromm,
which produced the evidence upon which he was convicted, was indisputably incorrect because
the color of Bromm’s vehicle and the color shown on the registration did not match. We
previously found that the traffic stop was a violation of the Fourth Amendment and that the
evidence gained thereby should be suppressed, and therefore, we reversed the conviction. See
State v. Bromm, 20 Neb. Ct. App. 76, 819 N.W.2d 231 (2012). The Nebraska Supreme Court
granted further review and reversed our decision, finding that the good faith exception to the
exclusionary rule applied and that the stop was therefore legal. State v. Bromm, 285 Neb. 193,
826 N.W.2d 270 (2013). The Supreme Court remanded the cause to this court for us to consider
-1-
and decide the other assignments of error that we had not addressed because of the result we
reached in our first decision. Thus, the matter is now before us with the law of the case being that
the police officer had made a lawful traffic stop of Bromm and that the evidence was not to be
suppressed because of an allegedly unlawful traffic stop.
ASSIGNMENTS OF ERROR
Bromm has made four assignments of error in this appeal. The first and fourth were that
“[t]he County Court erred in overruling [his] Motion to Suppress” and that “the County Court
erred in finding that law enforcement had a reasonable articulable suspicion to conduct a traffic
stop” of Bromm’s vehicle. Those assignments have now been conclusively resolved against
Bromm by the Supreme Court. Therefore, there now remain two assignments of error for us to
resolve, which we quote from Bromm’s brief: (1) “The County Court erred in finding that the
law enforcement officer followed proper procedures in administrating the preliminary breath
test” (PBT), and (2) “The County Court erred in finding the law enforcement officer had
probable cause to arrest [Bromm].”
BACKGROUND
We need not discuss the factual background that relates to the Supreme Court’s decision,
and whether the initial traffic stop was lawful, which is found in the two previously cited
opinions. Thus, we confine ourselves to those facts relating to the remaining assignments of
error.
Sgt. Walter Groves of the Washington County sheriff’s office was traveling south on
County Road 33 in Washington County, Nebraska, at approximately 11:30 p.m. on May 22,
2010, when he observed a dark-colored Chevy utility vehicle traveling north and made a
now-established lawful traffic stop of the vehicle. Groves positioned his police cruiser behind the
vehicle and made contact with the driver, Bromm. Upon doing so, he detected a strong odor of
alcohol coming from inside the vehicle.
Groves testified that he had Bromm get out of his vehicle and sit in the front passenger
seat of Groves’ cruiser so that he could determine whether the odor of alcohol was coming from
Bromm or from the other passengers in his vehicle. Groves testified that once the two of them
were in the cruiser, he smelled alcohol on Bromm and Bromm admitted to drinking that evening,
stating that he had a couple of beers at a friend’s birthday party. Groves asked Bromm how many
beers he had consumed that evening, and Bromm stated that he had three beers in the last 3
hours. Groves had Bromm turn his head toward him in order to conduct horizontal gaze
nystagmus (HGN) testing--which he did inside his cruiser that evening rather than outside,
because of very windy conditions. Groves testified over foundational objection by Bromm’s
counsel that he detected six HGN qualifiers in Bromm and that only four HGN qualifiers are
necessary to show alcohol impairment. And due to the strong wind blowing that night, Groves
did not have Bromm perform any field sobriety testing outside the cruiser. Bromm submitted to a
PBT, which registered a blood alcohol content of .137. Bromm was taken into custody and
transported to the sheriff’s office. After waiting the requisite 15 minutes prior to retesting
Bromm’s blood alcohol content on the DataMaster, his breath tested .116 grams of alcohol per
210 liters of breath, clearly above the legal limit. Bromm was charged with DUI.
-2-
Bromm filed an amended motion to suppress on September 10, 2010, in which he
alleged, in addition to the lack of a lawful stop, that his arrest was based on a PBT which was not
conducted according to the methods approved by the Nebraska Department of Health and
Human Services under title 177 of the Nebraska Administrative Code. A hearing was held on the
amended motion to suppress on October 25. Groves testified, and four exhibits were received
into evidence: a copy of title 177, Groves’ PBT checklist for Bromm, Groves’ narrative police
report, and a video recording of the traffic stop. Part of Bromm’s theory at the hearing was that
Groves did not administer the PBT properly because Bromm burped during the 15-minute
observation period prior to the test, which he now claims should have started the 15-minute
waiting period anew before a PBT could be administered. Bromm’s motion to suppress was
overruled.
According to a February 28, 2011, order of the county court, a bench trial on stipulated
facts was held on February 14, at which trial the parties stipulated that the court could consider
all testimony and exhibits from the suppression hearing. The order recites that exhibit 5 was
received into evidence at trial and that the matter was taken under advisement. The court’s order
of February 28 finds Bromm guilty of DUI.
Bromm appealed to the district court for Washington County, and the matter came before
that court on May 4, 2011. The evidence from the county court proceedings was received, and
the parties were given the opportunity to submit briefs. The issues identified in the district
court’s 14-page August 15 order are whether Groves (1) had reasonable suspicion to stop
Bromm’s vehicle, (2) followed proper procedures in administering the PBT, and (3) had
probable cause to arrest Bromm. As stated before, the first issue is “off the table.”
The district court found that the odor of alcohol emanating from Bromm, Bromm’s
admission that he had been drinking, and the results of the HGN and PBT tests amounted to
sufficient probable cause to arrest him. In sum, the district court found that the county court did
not err in overruling Bromm’s motion to suppress or in finding him guilty of DUI. Bromm
appealed, and as indicated at the outset, the cause is now before us again upon the Supreme
Court’s remand.
STANDARD OF REVIEW
A trial court’s ruling on a motion to suppress is to be upheld on appeal unless its findings
of fact are clearly erroneous. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996). In
determining whether a trial court’s findings on a motion to suppress are clearly erroneous, an
appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather,
recognizes the trial court as the finder of fact and takes into consideration that it observed the
witnesses. Id.
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding
historical facts, an appellate court reviews the trial court’s findings for clear error. But whether
those facts trigger or violate Fourth Amendment protections is a question of law that an appellate
court reviews independently of the trial court’s determination. State v. Nolan, 283 Neb. 50, 807
N.W.2d 520 (2012).
-3-
Both the district court and a higher appellate court generally review appeals from the
county court for error appearing on the record. See State v. Lamb, 280 Neb. 738, 789 N.W.2d
918 (2010). In an appeal of a criminal case from the county court, the district court acts as an
intermediate court of appeal, and as such, its review is limited to an examination of the county
court record for error or abuse of discretion. Id.
ANALYSIS
Did Arresting Officer Lack Sufficient Foundation
to Testify to Result of HGN Test?
In the stipulated county court trial, Bromm objected to Groves’ testimony that the results
of the HGN test showed signs of impairment because it was not conducted properly and should
have been excluded from evidence. The HGN test is to be performed with the officer facing the
suspect “straight on.” But in this case, the test was done inside the cruiser with Bromm turned in
his seat looking toward Groves. Bromm argues that Groves did not perform the test “as
instructed” and that consequently, “any results should not be admitted in evidence,” given
Groves’ failure to observe other signs of impairment. Brief for appellant at 10. Groves testified
that the test was done inside the cruiser and that no other sobriety tests were conducted outside of
the cruiser because of high winds that night. Groves testified that he was facing Bromm straight
on, that he noted six of eight indications of impairment he had been trained to observe from the
HGN test, and that the results indicated impairment. Groves testified that he was trained in how
to administer the test and how to determine the results. Clearly, there was foundation for Groves’
testimony about the administration of the HGN test. Preliminary questions concerning the
admissibility of evidence are determined by the trial judge. See Neb. Evid. R. 104, Neb. Rev.
Stat. § 27-104 (Reissue 2008). When the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for
an abuse of discretion. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007). Given Groves’
testimony that he was trained in the administration of the HGN test, as well as knowing the
significance of the results, and that he followed the correct procedure, we cannot say that the trial
judge abused his discretion in admitting the HGN results over the foundational objection. The
purported shortcomings in the administration of the test go to the weight to be given it by the
trier of fact, not its admissibility. The county court did not err in admitting the results of the
HGN, and this assignment of error is without merit.
Did PBT Provide Probable Cause
to Arrest Bromm for DUI?
Within the broad assignment of error that Groves did not have probable cause to arrest
Bromm for DUI, Bromm argues that alleged shortcomings in the administration of the PBT
invalidate it and prevent its use as a basis for probable cause. The two complaints about the
administration of the PBT are first that Groves did not wait the required 15 minutes for
observation of Bromm before giving him the PBT, and second, that Bromm burped or belched
during the observation period, which Bromm asserts means that the observation period had to be
“restarted,” which it was not.
We begin with the alleged burp or belch. Groves admitted in his testimony that if Bromm
had done that, he would start the 15-minute waiting period over again. The evidence is that
-4-
Groves’ cruiser camera shows that during the observation period, Bromm put his fist to his
mouth and momentarily dropped his chin to his chest, which he argues was a burp or belch
requiring that the observation period had to be restarted. Groves agreed that had such happened,
he would have restarted the observation period. However, there is no audible sound of a burp or
belch on the video--which records sound. And Groves testified that Bromm did not burp or
belch. The trial judge’s decision stated that he was “unsure” whether such had occurred. While
the video alone provides some inferential evidence of a burp or belch, there is other evidence that
there was no burp or belch, including Groves’ testimony and the lack of sound typically
associated with such activity. Bromm, in effect, asks us to make a different factual finding--that
there was a burp or belch--meaning that the trial judge was clearly wrong when he in effect
found that Bromm had not carried his burden of proof to show the alleged occurrence of an event
requiring the observation period before administration of the PBT to be restarted. For us to do
that, we would have to conclude that the trial judge’s factual finding on this point was clearly
erroneous. Given the evidence on this point that we have recounted, we cannot say that the trial
judge was clearly wrong. Thus, this claim for reversal of the conviction is without merit.
Did Trial Court Err in Finding That Officer
Observed Bromm for Required
15 Minutes Before PBT?
There is conflicting evidence about the 15-minute observation period before the
administration of the PBT which read .137, well over the legal limit. We note that it has been
held that the administration of a PBT is more in line with field sobriety testing and a Terry stop
than it would be with a formal arrest and that the administration of a PBT does not need to be
supported by probable cause. State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010). See, also,
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Prescott court said that
an officer is reasonable in administering a PBT if he can point to specific, articulable facts
indicating that an individual has been driving under the influence of alcohol. Here, the specific,
articulable facts would be the smell of alcohol emanating from Bromm, the results of the HGN
test, and Bromm’s admission that he had been drinking beer. But it is clear under 177 Neb.
Admin. Code, ch. 1 (2004), that the officer must observe the suspect for 15 minutes before the
administration of a PBT.
Groves testified that he observed Bromm for the required time period before the PBT. It
is clear that Groves does not have to constantly stare at Bromm for 15 minutes. In State v.
Prescott, supra, the court said, “A review of the video of the stop shows that at least 15 minutes
elapsed between the initial contact between [the officer] and [the defendant] and the
administration of the PBT.” 280 Neb. at 106, 784 N.W.2d at 883 (emphasis supplied). The
Prescott court found that the observation period was sufficient. In the present case, there was
evidence that Groves’ observation of Bromm from first contact to the PBT was clearly more than
15 minutes. That said, the record contains some conflicting testimony about the observation
period. This confusing and at times contradictory testimony appears to arise from the notion that
the suspect and the officer must be seated together in the cruiser with the officer having an
“eagle eye” on the suspect for 15 minutes. However, such is not required in order for there to be
a proper observation period. In State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010), the
-5-
Nebraska Supreme Court embraced this court’s reasoning in State v. Cash, 3 Neb. Ct. App. 319, 526
N.W.2d 447 (1995), that proper observation is something less than staring at a suspect for 15
minutes. The Scheffert court then explained:
To “observe,” under the rule regarding observation prior to giving a PBT, does not
require a police officer to stare fixedly at the person being tested. The officer must,
however, be in a position to detect, through the use of one or more senses, any conduct or
event which could contaminate the breath sample and taint the results. See, Bennett v.
State, Dept. of Transp., 147 Idaho 141, 206 P.3d 505 (Idaho App. 2009); State v. Filson,
409 N.J. Super. 246, 976 A.2d 460 (2009).
279 Neb. at 487, 778 N.W.2d at 741.
Groves’ testimony was that he made an error in his police report when he said that he
first observed Bromm’s vehicle at 11:28 p.m., when in fact that was the time when he contacted
Bromm at his vehicle window. And that is the time at which he began his 15-minute observation
period. And on cross-examination, Groves denied defense counsel’s suggestion that observation
begins when the suspect is in the cruiser. Instead, Groves testified that, in accordance with the
above authority, he had Bromm under observation from the time of initial contact at the vehicle
window as in State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010). The evidence is consistent
that the PBT was administered at 11:45 p.m. If one accepts Groves’ explanation for the
discrepancy as to what happened at 11:28 p.m., as the trial court did, noting that Groves’
testimony had cleared the matter up, then there was compliance with the 15-minute observation
period. Consequently, the PBT could properly be used as part of Groves’ probable cause for the
arrest. See State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000) (PBT is admissible for limited
purpose of establishing probable cause). The issue comes down to the credibility of Groves as to
the precise time when he started the observation period. The trial court obviously accepted
Groves’ testimony that 11:28 p.m. was when he was at Bromm’s vehicle window making contact
and that such time was when he began his 15-minute observation of Bromm. After our review of
the record, we cannot say that such factual finding is clearly erroneous.
CONCLUSION
Given Bromm’s admission of recent drinking, his positive indicators on the HGN test,
and a PBT of .137, Groves clearly had probable cause to arrest Bromm. Therefore, the trial court
properly overruled the suppression motion and properly convicted Bromm. And, the district
court was correct in upholding the conviction and sentence.
AFFIRMED.
-6-