State v. Rivera , 297 Neb. 709 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/03/2017 09:14 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    State of Nebraska, appellee, v.
    Jonathan J. R ivera, appellant.
    ___ N.W.2d ___
    Filed September 15, 2017.   No. S-16-255.
    1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. 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 histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment pro-
    tection is a question of law that an appellate court reviews independently
    of the trial court’s determination.
    2.	 Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
    When a motion to suppress is denied pretrial and again during trial on
    renewed objection, an appellate court considers all the evidence, both
    from trial and from the hearings on the motion to suppress.
    3.	 Constitutional Law: Search and Seizure. The Fourth Amendment to
    the U.S. Constitution and article I, § 7, of the Nebraska Constitution
    guarantee against unreasonable searches and seizures.
    4.	 ____: ____. For the protections of the Fourth Amendment to apply, a
    seizure must have occurred.
    5.	 ____: ____. A seizure in the Fourth Amendment context occurs only if,
    in view of all the circumstances surrounding the incident, a reasonable
    person would have believed that he or she was not free to leave.
    6.	 Police Officers and Sheriffs: Search and Seizure. A police officer may
    make a seizure by a show of authority and without the use of physi-
    cal force.
    7.	 Constitutional Law: Police Officers and Sheriffs: Search and
    Seizure. There is no seizure without actual submission; otherwise, there
    is at most an attempted seizure, so far as the Fourth Amendment is con-
    cerned. Thus, a seizure requires either a police officer’s application of
    physical force to a suspect or a suspect’s submission to an officer’s show
    of authority.
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    8.	 Witnesses: Evidence: Appeal and Error. In reviewing a trial court’s
    factual findings for clear error, an appellate court does not pass on the
    credibility of witnesses or reweigh the evidence presented.
    9.	 Police Officers and Sheriffs: Search and Seizure: Intent. A law
    enforcement officer’s subjective intent is irrelevant for determining
    whether a seizure did in fact occur.
    10.	 Police Officers and Sheriffs: Search and Seizure: Motor Vehicles.
    A seizure does not occur simply because a law enforcement officer
    approaches an individual who voluntarily stopped his or her vehicle.
    11.	 Judgments: Appeal and Error. A correct result will not be set aside
    merely because the lower court applied the wrong reasoning in reaching
    that result.
    Petition for further review from the Court of Appeals,
    Moore, Chief Judge, and R iedmann and Bishop, Judges, on
    appeal thereto from the District Court for Lancaster County,
    A ndrew R. Jacobsen, Judge, on appeal thereto from the County
    Court for Lancaster County, Thomas W. Fox, Judge. Judgment
    of Court of Appeals affirmed.
    Mark E. Rappl for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Cassel, J.
    INTRODUCTION
    The county court overruled Jonathan J. Rivera’s motion
    to suppress. In doing so, it applied the community caretak-
    ing exception to the Fourth Amendment.1 On further review,
    we conclude that the initial police-citizen encounter did not
    amount to a seizure. Because the encounter began without a
    seizure, it was not necessary to invoke the community caretak-
    ing exception. We affirm the decision of the Nebraska Court of
    Appeals, albeit on different grounds.
    1
    See State v. Bakewell, 
    273 Neb. 372
    , 
    730 N.W.2d 335
    (2007).
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    BACKGROUND
    Police-Citizen Encounter
    We first describe the scene of the encounter. At approxi-
    mately 10:35 p.m. on May 24, 2014, two patrolling Nebraska
    Game and Parks Commission conservation officers came
    across two groups of people on opposite sides of a paved road.
    According to all of the testimony, the scene was very dark at
    the time. The road was within the Branched Oak Lake recre-
    ation area and had no lane markings but had grassy areas to
    each side.
    Before Rivera arrived, the officers parked their marked
    patrol vehicle on the right side of the road and exited the
    vehicle to investigate. When one of the officers approached
    the groups, the other officer returned to the patrol vehicle to
    call dispatch.
    While sitting inside the patrol vehicle, the officer noticed
    another vehicle, driven by Rivera, approach and stop behind
    the patrol vehicle. The vehicle then pulled off the road onto
    the grassy shoulder to the right of the patrol vehicle and
    advanced along the shoulder at a slow speed. According to
    both officers at the scene, if the vehicle had attempted to pass
    the patrol vehicle on the left, the vehicle would still have left
    the paved portion of the road.
    Concerned because the vehicle was approaching the group
    on the side of the road, the officer exited and walked around
    the front of the patrol vehicle toward Rivera’s vehicle. The
    officer was wearing a uniform and displaying a badge, and
    he had a firearm on his person, though he did not draw or
    display it. Rivera saw the officer and stopped his vehicle as
    its front end was even with that of the patrol vehicle. At this
    time, the group of people on the side of the road was 15 to 20
    feet away.
    The officer approached and informed Rivera that he would
    move the patrol vehicle if Rivera would wait a few min-
    utes. During this interaction, the officer noticed that Rivera
    had bloodshot, watery eyes and slurred speech. When asked
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    whether he had been drinking alcohol that evening, Rivera
    replied that he had. The officer then detained Rivera for a
    driving under the influence investigation which ultimately led
    to Rivera’s arrest.
    Motion to Suppress
    Before trial on his charge for driving under the influence,
    Rivera filed a motion to suppress evidence obtained as a result
    of the stop. The county court overruled the motion after find-
    ing that the arresting officer was operating in a community
    caretaking function when he made contact with Rivera. It later
    overruled Rivera’s renewed motion to suppress at a bench trial
    and found Rivera guilty of driving under the influence. The
    county court revoked Rivera’s driver’s license for 18 months,
    imposed a $1,000 fine, sentenced him to 30 days’ imprison-
    ment and 24 months’ probation, and ordered that he perform
    20 hours of community service and pay all associated costs
    and fees.
    A ppellate History
    Rivera appealed to the district court and alleged that the
    county court erred in overruling his motion to suppress by
    concluding the arresting officer had reasonable grounds to
    detain him. The district court affirmed the judgment of the
    county court after concluding that it did not err in determining
    that the community caretaking exception applied to the police-
    citizen encounter.
    On further appeal to the Court of Appeals, Rivera advanced
    the same argument and assigned that the district court erred in
    affirming the denial of his motion to suppress. In a split deci-
    sion, the Court of Appeals affirmed the district court’s ruling.2
    We granted Rivera’s petition for further review to address a
    perceived expansion of the community caretaking exception.
    2
    State v. Rivera, No. A-16-255, 
    2017 WL 977345
    (Neb. App. Mar. 14,
    2017) (selected for posting to court website).
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    ASSIGNMENT OF ERROR
    Rivera assigns that the Court of Appeals erred by applying
    the community caretaking exception to the Fourth Amendment
    in affirming the county court’s order overruling his motion
    to suppress.
    STANDARD OF REVIEW
    [1,2] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review.3
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protection is a question of
    law that an appellate court reviews independently of the trial
    court’s determination.4 When a motion to suppress is denied
    pretrial and again during trial on renewed objection, an appel-
    late court considers all the evidence, both from trial and from
    the hearings on the motion to suppress.5
    ANALYSIS
    Rivera asserts that the Court of Appeals erred by find-
    ing the community caretaking exception applicable to the
    police-citizen encounter in question. He argues in his peti-
    tion for further review that in doing so, the Court of Appeals
    “broadly expanded the community caretaking exception to
    unprecedented levels in direct contradiction to [the Nebraska
    Supreme] Court’s explicit mandate that the community care-
    taking exception be narrowly and carefully applied in order to
    prevent its abuse.”6
    [3,4] The Fourth Amendment to the U.S. Constitution and
    article I, § 7, of the Nebraska Constitution guarantee against
    3
    State v. Rogers, 
    297 Neb. 265
    , 
    899 N.W.2d 626
    (2017).
    4
    Id.
    5
    Id.
    6
    Citing State v. Bakewell, supra note 1.
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    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    unreasonable searches and seizures.7 But, for the protections
    of the Fourth Amendment to apply, a seizure must have
    occurred.8 Therefore, we must first review the factual find-
    ings of the trial court for clear error and determine whether
    a seizure within the meaning of the Fourth Amendment actu-
    ally occurred.
    [5-7] A seizure in the Fourth Amendment context occurs
    only if, in view of all the circumstances surrounding the
    incident, a reasonable person would have believed that he
    or she was not free to leave.9 A police officer may make a
    seizure by a show of authority and without the use of physi-
    cal force.10 However, there is no seizure without actual sub-
    mission; otherwise, there is at most an attempted seizure, so
    far as the Fourth Amendment is concerned.11 Thus, a seizure
    requires either a police officer’s application of physical force
    to a suspect or a suspect’s submission to an officer’s show
    of authority.12
    It is apparent from the record that Rivera voluntarily stopped
    after seeing the uniformed officer approach the front of his
    vehicle. Regarding Rivera’s stop, the trial court found:
    To ensure the safety of the group of people near the
    front of the patrol pickup, [the officer] then got out of
    his patrol pickup, walked around the front of the patrol
    pickup to the passenger front side, and toward [Rivera’s]
    truck that was attempting to pass.
    [Rivera’s] truck, which was attempting to pass on the
    passenger side of the patrol pickup, then stopped. [The
    officer] did not step out in front of [Rivera’s] truck as it
    was attempting to pass.
    7
    State v. Rogers, supra note 3.
    8
    See State v. Avey, 
    288 Neb. 233
    , 
    846 N.W.2d 662
    (2014).
    9
    State v. Rogers, supra note 3.
    10
    State v. Hedgcock, 
    277 Neb. 805
    , 
    765 N.W.2d 469
    (2009).
    11
    
    Id. 12 Id.
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    STATE v. RIVERA
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    297 Neb. 709
    . . . At no time did [the officer] activate the emergency
    overhead lights or siren on the patrol pickup, nor did [the
    officer] honk the horn of the patrol pickup to get [Rivera]
    to stop his truck. [The officer] did not draw or display
    his gun. [Rivera’s] truck was not blocked in by the patrol
    pickup and was able to keep driving forward if it avoided
    the people in the area.
    [8] There was conflicting testimony as to whether the police
    officer raised his hand to indicate Rivera should stop. But the
    trial court did not make a specific finding as to whether the
    officer made such a gesture. Instead, its detailed account of the
    encounter suggests that the court implicitly found the officer
    did not make any gesture to direct Rivera to stop. At oral argu-
    ment, Rivera asserted that the sentence in the court’s analysis
    stating the officer “was operating in a community caretaking
    function when he made . . . contact with [Rivera] and caus[ed]
    [Rivera] to stop his truck” was a specific finding that Rivera
    was in fact stopped. To the contrary, we view that sentence
    as a conclusion of law, not as a finding of historical fact. In
    reviewing the county court’s findings, we do not pass on the
    credibility of witnesses or reweigh the evidence presented.13
    There was no clear error in the county court’s findings of his-
    torical fact.
    [9,10] Though the officer admittedly intended to stop
    Rivera’s vehicle, his subjective intent is irrelevant for deter-
    mining whether a seizure did in fact occur.14 The officer did
    not gesture at Rivera to stop or otherwise restrict his move-
    ment by blocking his vehicle. Therefore, we cannot say that
    a reasonable person would have believed that he or she was
    not free to leave. And, Rivera voluntarily stopped his vehicle;
    a seizure did not occur simply because the officer approached
    him and told him he would move his patrol vehicle in a
    13
    See State v. Lee, 
    290 Neb. 601
    , 
    861 N.W.2d 393
    (2015).
    14
    See State v. Draganescu, 
    276 Neb. 448
    , 
    755 N.W.2d 57
    (2008).
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. RIVERA
    Cite as 
    297 Neb. 709
    few minutes.15 The interaction between the officer and Rivera
    began as a “first-tier” encounter.16
    Based on the officer’s observations of Rivera’s bloodshot,
    watery eyes and slurred speech, the “first-tier” encounter
    promptly escalated to “second-tier.”17 The circumstances then
    clearly established reasonable suspicion that a crime was being
    committed. Accordingly, the detention that followed was con-
    stitutionally permitted.
    [11] Because there was no seizure at the commencement
    of the encounter, there was no need to apply the community
    caretaking exception. We reiterate that the exception is to be
    “narrowly and carefully applied.”18 A correct result will not
    be set aside merely because the lower court applied the wrong
    reasoning in reaching that result.19 Although the county court
    unnecessarily resorted to the community caretaking exception,
    it correctly denied Rivera’s motion to suppress. Likewise, the
    district court and Court of Appeals were correct in affirming
    the decision of the trial court, despite having followed it down
    the wrong path.
    CONCLUSION
    Because no seizure occurred at the commencement of the
    encounter, it was not necessary to resort to the community
    caretaking exception. Although the lower courts began down
    the wrong path, they reached the correct result. Accordingly,
    we affirm the decision of the Court of Appeals.
    A ffirmed.
    15
    See, e.g., State v. Hedgcock, supra note 10.
    16
    See State v. Rogers, supra note 
    3, 297 Neb. at 269
    , 899 N.W.2d at 631.
    17
    See 
    id. 18 State
    v. Bakewell, supra note 
    1, 273 Neb. at 377
    , 730 N.W.2d at 338.
    19
    State v. Kolbjornsen, 
    295 Neb. 231
    , 
    888 N.W.2d 153
    (2016).