State v. Krannawitter , 305 Neb. 66 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KRANNAWITTER
    Cite as 
    305 Neb. 66
    State of Nebraska, appellee, v.
    Amy J. Krannawitter, appellant.
    ___ N.W.2d ___
    Filed February 21, 2020.   No. S-19-014.
    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 for New Trial: Appeal and Error. The standard of review for
    the denial of a motion for new trial is whether the trial court abused its
    discretion in denying the motion.
    3. Constitutional Law: Police Officers and Sheriffs: Search and
    Seizure. The first tier of police-citizen encounters involves no restraint
    of the liberty of the citizen involved, but, rather, the voluntary coopera-
    tion of the citizen is elicited through noncoercive questioning. This type
    of contact does not rise to the level of a seizure and therefore is outside
    the realm of Fourth Amendment protection.
    4. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
    Investigative Stops: Search and Seizure: Words and Phrases. The
    second category of police-citizen encounters, the investigatory stop, is
    limited to brief, nonintrusive detention during a frisk for weapons or
    preliminary questioning. This type of encounter is considered a seizure
    sufficient to invoke Fourth Amendment safeguards, but because of its
    less intrusive character requires only that the stopping officer have spe-
    cific and articulable facts sufficient to give rise to reasonable suspicion
    that a person has committed or is committing a crime.
    5. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
    Arrests: Search and Seizure: Probable Cause. The third type of
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    police-citizen encounters, arrests, is characterized by highly intrusive
    or lengthy search or detention. The Fourth Amendment requires that an
    arrest be justified by probable cause to believe that a person has com-
    mitted or is committing a crime.
    6.   Constitutional Law: Search and Seizure. A seizure in the Fourth
    Amendment context occurs only if, in view of all the circumstances sur-
    rounding the incident, a reasonable person would have believed that he
    or she was not free to leave.
    7.   ____: ____. In addition to situations where an officer directly tells a
    suspect that he or she is not free to go, circumstances indicative of a
    seizure may include the threatening presence of several officers, the dis-
    play of a weapon by an officer, some physical touching of the citizen’s
    person, or the use of language or tone of voice indicating the compli-
    ance with the officer’s request might be compelled.
    8.   Motions for New Trial: Evidence: Proof. In order to obtain a new trial
    based on newly discovered evidence, a defendant must show that the
    new evidence could not with reasonable diligence have been discovered
    and produced at trial and that the evidence is so substantial that a dif-
    ferent result may have occurred.
    9.   Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
    The four foundational elements which the State must establish as a
    foundation for the admissibility of a breath test in a driving under
    the influence prosecution are as follows: (1) that the testing device
    was working properly at the time of the testing, (2) that the person
    administering the test was qualified and held a valid permit, (3) that
    the test was properly conducted under the methods stated by the
    Department of Health and Human Services, and (4) that all other stat-
    utes were satisfied.
    Appeal from the District Court for Lancaster County:
    Andrew R. Jacobsen, Judge. Affirmed.
    Brad Roth and Kenneth Yoho, Senior Certified Law Student,
    of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg,
    P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    STATE v. KRANNAWITTER
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    305 Neb. 66
    Heavican, C.J.
    I. INTRODUCTION
    Amy J. Krannawitter was charged with third-offense driving
    under the influence. Her motion to suppress was denied, and
    she was convicted. Krannawitter then filed a motion for new
    trial on the basis of newly discovered evidence. That motion
    was denied, and she was sentenced. Krannawitter appeals.
    We affirm.
    II. FACTUAL BACKGROUND
    At approximately 6 a.m. on July 4, 2017, Deputy Dennis
    Guthard of the Lancaster County Sheriff’s Department was
    leaving his home to report for work. Guthard was driving
    a marked cruiser. He noticed a black Nissan Altima driving
    slowly down the street of his neighborhood, of which he had
    been a resident for 16 years. Guthard’s house was located on
    the corner of a street and a neighborhood circle. He drove from
    the circle onto the nearby through street and emerged behind
    the Altima. The Altima pulled into the driveway of Guthard’s
    neighbors’ house.
    Guthard did not recognize the Altima or its driver, who he tes-
    tified was a “younger woman” later identified as Krannawitter.
    Guthard testified that the occupants of the neighbors’ house
    were a 70-year-old woman and her 96-year-old mother and
    that it was his experience that these two women did not wake
    until around 8:30 a.m. Guthard also testified that he considered
    keeping an eye on his neighborhood to be part of his job and
    that he was therefore aware of many of the vehicles belonging
    to persons who visited the neighborhood. Guthard noted that he
    often left for work at 6 a.m. and was therefore aware of who
    might be out and about at that time of the morning.
    As Guthard drove down the street, he noticed, using his side
    and rear view mirrors, that the Altima was “just parked there”
    in the driveway. Guthard thought that was suspicious, but he
    also allowed for the possibility that the Altima’s driver was
    lost, because it was a “confusing neighborhood.” He therefore
    turned around at the next neighborhood circle to see if he could
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    STATE v. KRANNAWITTER
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    be of assistance. As his cruiser approached the driveway, the
    driver of the Altima, who had been in the process of back-
    ing out of the driveway, paused for several seconds and then
    abruptly pulled back into the driveway and parked again. No
    other cars were traveling on the street at the time.
    Guthard pulled into the driveway about 5 feet behind
    the Altima, but did not activate his cruiser’s siren or lights.
    Guthard did turn the cruiser’s camera on as he approached the
    Altima, and a video of the interaction between Guthard and
    Krannawitter was offered into evidence at trial.
    Guthard made contact with the driver, Krannawitter.
    Immediately before Krannawitter opened the door of the
    Altima, Guthard observed Krannawitter was “very dishev-
    eled” and had droopy eyelids. When she opened the door,
    Guthard smelled a strong odor of alcohol and further noted
    Krannawitter’s bloodshot eyes and slurred speech.
    Krannawitter’s breath test, administered approximately 90
    minutes later, showed a concentration of .235 grams of alcohol
    per 210 liters of breath. Krannawitter was charged with aggra-
    vated driving under the influence, third offense. Krannawitter’s
    motion to suppress was denied. The district court concluded
    that the initial stop of Krannawitter was a tier-one police-
    citizen encounter and that even if it was a seizure, there was
    reasonable suspicion to support a brief investigative stop.
    Following a jury trial, Krannawitter was found guilty of
    driving under the influence. She filed a motion for new trial on
    the basis of newly discovered evidence. Krannawitter alleged
    that her breath test was performed using a machine that was
    maintained and tested using solutions that did not have cer-
    tificates of analysis, in violation of title 177 of the Nebraska
    Administrative Code dealing with the testing of the alcohol
    content in blood and breath and in violation of her due process
    and confrontation rights. This argument centered on the testing
    solutions use to maintain the machine.
    Krannawitter presented evidence that when sent to law
    enforcement, the solutions were accompanied by certificates
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    STATE v. KRANNAWITTER
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    of analysis signed by Alma Palmer as the individual who pre-
    pared, tested, and supplied the solutions. Such a certificate is
    required by title 177. However, it was later determined that the
    solutions were actually prepared, tested, and supplied by Colby
    Hale. The company that delivered the solutions subsequently
    provided amended certificates, signed by Hale.
    The district court concluded that the amended certificates
    were “not . . . newly discovered evidence” and that even if they
    were, the defect in the original certificates would not have ren-
    dered the breath test inadmissible. Accordingly, Krannawitter’s
    motion was denied. Krannawitter was sentenced to 5 years’
    probation and a 15-year license revocation, with the possi-
    bility of obtaining an ignition interlock device after 1 year.
    She appeals.
    III. ASSIGNMENTS OF ERROR
    Krannawitter assigns, restated and consolidated, that the
    district court erred in (1) denying her motion to suppress and
    (2) denying her motion for new trial.
    IV. STANDARD OF REVIEW
    [1] 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.
    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.1
    [2] The standard of review for the denial of a motion for
    new trial is whether the trial court abused its discretion in
    denying the motion.2
    1
    State v. Hartzell, 
    304 Neb. 82
    , 
    933 N.W.2d 441
     (2019).
    2
    State v. Oldson, 
    293 Neb. 718
    , 
    884 N.W.2d 10
     (2016).
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    STATE v. KRANNAWITTER
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    V. ANALYSIS
    1. Motion to Suppress
    In her first assignment of error, Krannawitter assigns that
    the district court erred in denying her motion to suppress. In
    so denying, the district court noted that in its view, the interac-
    tion between Guthard and Krannawitter was a tier-one police-
    citizen encounter, but that in any case, the encounter was sup-
    ported by reasonable suspicion. Krannawitter takes issue with
    both findings.
    [3-5] There are three tiers of police encounters under
    Nebraska law. The first tier of police-citizen encounters
    involves no restraint of the liberty of the citizen involved,
    but, rather, the voluntary cooperation of the citizen is elicited
    through noncoercive questioning.3 This type of contact does
    not rise to the level of a seizure and therefore is outside the
    realm of Fourth Amendment protection. The second category,
    the investigatory stop, as defined by the U.S. Supreme Court in
    Terry v. Ohio,4 is limited to brief, nonintrusive detention during
    a frisk for weapons or preliminary questioning.5 This type of
    encounter is considered a “seizure” sufficient to invoke Fourth
    Amendment safeguards, but because of its less intrusive char-
    acter requires only that the stopping officer have specific and
    articulable facts sufficient to give rise to reasonable suspicion
    that a person has committed or is committing a crime.6 The
    third type of police-citizen encounters, arrests, is characterized
    by highly intrusive or lengthy search or detention.7 The Fourth
    Amendment requires that an arrest be justified by probable
    cause to believe that a person has committed or is committing
    3
    State v. Schriner, 
    303 Neb. 476
    , 
    929 N.W.2d 514
     (2019).
    4
    Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
     (1968). See,
    also, State v. Schriner, 
    supra note 3
    .
    5
    See State v. Schriner, 
    supra note 3
    .
    6
    
    Id.
    7
    
    Id.
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    a crime.8 Only the second and third tiers of police-citizen
    encounters are seizures sufficient to invoke the protections of
    the Fourth Amendment to the U.S. Constitution.9
    [6,7] 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.10 In addition to situations where an
    officer directly tells a suspect that he or she is not free to go,
    circumstances indicative of a seizure may include the threaten-
    ing presence of several officers, the display of a weapon by an
    officer, some physical touching of the citizen’s person, or the
    use of language or tone of voice indicating the compliance with
    the officer’s request might be compelled.11
    We need not decide whether this encounter might have
    been a tier-one police-citizen encounter, because we conclude
    that in any case, it was a seizure supported by reasonable
    suspicion.
    The U.S. Supreme Court has recognized that the Fourth
    Amendment permits brief investigative stops of vehicles based
    on reasonable suspicion when a law enforcement officer has
    a “‘particularized and objective basis for suspecting the par-
    ticular person stopped of criminal activity.’”12 The reasonable
    suspicion needed to justify an investigatory traffic stop “‘“is
    dependent upon both the content of information possessed
    by police and its degree of reliability.”’”13 Like the prob-
    able cause standard, the reasonable suspicion standard “‘takes
    into account “the totality of the circumstances—the whole
    8
    
    Id.
    9
    
    Id.
    10
    
    Id.
    11
    
    Id.
    12
    Navarette v. California, 
    572 U.S. 393
    , 396, 
    134 S. Ct. 1683
    , 
    188 L. Ed. 2d 680
     (2014).
    13
    State v. Barbeau, 
    301 Neb. 293
    , 301, 
    917 N.W.2d 913
    , 921 (2018), quoting
    Navarette v. California, 
    supra note 12
    .
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    picture.”’”14 A mere hunch does not create reasonable suspi-
    cion, but the level of suspicion required to meet the standard is
    “‘“considerably less than proof of wrongdoing by a preponder-
    ance of the evidence,” and “obviously less” than is necessary
    for probable cause.’”15
    Nervous, evasive behavior is a factor in determining reason-
    able suspicion.16 Another consideration is unprovoked flight
    upon noticing the police.17 Other pertinent circumstances
    include the officer’s own direct observations, dispatch infor-
    mation, directions from other officers, and the nature of the
    area and time of day during which the suspicious activity
    occurred.18
    In this case, Guthard was familiar with the neighborhood
    where the seizure took place because he lived in it. Specifically,
    Guthard testified that he was aware of those individuals who
    frequented the house of the neighbors in question, but did not
    recognize Krannawitter or her Altima. Because of this person-
    alized knowledge regarding his own neighborhood, Guthard
    testified that the fact that Krannawitter was parked in the
    driveway in question at 6 a.m. was suspicious. Guthard thought
    it was possible that the driver might be lost, but his suspicion
    about the Altima and its occupants was reinforced when he
    circled back to check on the Altima and witnessed it begin to
    back out of the driveway, only to pause for an unknown reason
    and abruptly drive back into the driveway just as he approached
    in his marked cruiser. In his interaction with Krannawitter,
    Guthard indicated that he thought he should check on the prop-
    erty and on her, to be sure that she and her passengers were not
    attempting to break into the property.
    14
    
    Id.
    15
    
    Id.
    16
    U.S. v. Harris, 
    313 F.3d 1228
     (10th Cir. 2002).
    17
    Illinois v. Wardlow, 
    528 U.S. 119
    , 
    120 S. Ct. 673
    , 
    145 L. Ed. 2d 570
    (2000).
    18
    U.S. v. Campbell, 
    549 F.3d 364
     (6th Cir. 2008).
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    Guthard witnessed what appeared to him to be evasive
    behavior when Krannawitter pulled out of and then imme-
    diately back into the neighbors’ driveway. Based on his
    knowledge of the neighbors and the neighborhood in ques-
    tion, Guthard did not believe Krannawitter was visiting or
    acquainted with those neighbors such that there was a reason
    for her Altima to be parked in that driveway in the early morn-
    ing hours. Guthard testified he considered it to be part of his
    job to keep an eye on his neighborhood. We conclude that
    when the totality of the circumstances is considered, Guthard’s
    seizure of Krannawitter was supported by a particularized and
    objective basis for suspecting the particular person stopped of
    criminal activity.
    2. Motion for New Trial
    In her second assignment of error, Krannawitter assigns that
    the district court erred in denying her motion for new trial.
    In denying Krannawitter’s motion for new trial, the district
    court found that the amended certificates of analysis were “not
    . . . newly discovered evidence,” because they could have been
    discovered with reasonable diligence, and that in any case, the
    defect with the original certificates would not have rendered
    the breath test inadmissible.
    [8] In order to obtain a new trial based on newly discov-
    ered evidence, a defendant must show that the new evidence
    could not with reasonable diligence have been discovered and
    produced at trial.19 Additionally, the defendant must show the
    evidence is “so substantial that a different result may have
    occurred.”20 In other words, the defendant must show that if the
    evidence had been admitted at the former trial, it would prob-
    ably have produced a substantially different result.
    19
    See, 
    Neb. Rev. Stat. §§ 29-2101
    (5) and 29-2103(4) (Reissue 2016); State
    v. Cross, 
    297 Neb. 154
    , 
    900 N.W.2d 1
     (2017).
    20
    State v. Cross, 
    supra note 19
    , 
    297 Neb. at 161
    , 900 N.W.2d at 6.
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    (a) Newly Discovered Evidence
    The district court erred in finding that the amended certifi-
    cates did not qualify as newly discovered evidence. A timeline
    of events relating to the certificates is helpful in determining
    this issue.
    On June 29 and July 27, 2016, respectively, Palmer signed
    the original certificates of analysis of the solutions for testing
    concentrations of .08 and .15 milliliters of alcohol per 210
    liters of breath, and the testing solutions were sent to Lancaster
    County. The solutions were those used to test and maintain
    the breath testing machine shortly before Krannawitter was
    arrested and tested on July 4, 2017.
    Krannawitter’s trial began on April 9, 2018. On that same
    date, Palmer signed affidavits stating that she had not tested
    those solutions, but that Hale had done that testing. It is not
    clear from the record how these affidavits came to be signed.
    On April 10, following a second day of trial, Krannawitter was
    found guilty. On May 7, Hale signed amended certificates of
    analysis, which were sent to Lancaster County. Krannawitter’s
    motion for new trial was filed May 10. (The operative motion
    for new trial, however, is the amended motion for new trial,
    which was filed on July 27.)
    Evidence is considered “newly discovered” if it “could not
    with reasonable diligence have [been] discovered and pro-
    duced at the trial.”21 Defense counsel’s affidavit indicates that
    he was not aware of the inaccuracy in the original certificates
    of analysis; nor is there any other evidence in the record to
    suggest that counsel should have been aware that the original
    certificates were incorrect. The amended certificates qualify as
    newly discovered evidence, and the district court erred in find-
    ing otherwise.
    (b) Substantially Different Result
    We turn next to the question of whether, had the certifi-
    cates been offered at trial, the results of that trial would have
    21
    § 29-2101(5).
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    been substantially different. Krannawitter contends, within the
    framework of her motion for new trial, that (1) her breath
    test results were inadmissible, (2) she had a right to confront
    Palmer and Hale, (3) the certificates of analysis were inadmis-
    sible hearsay, and (4) the State violated Krannawitter’s due
    process rights when it offered Palmer’s affidavit at trial.
    [9] Krannawitter’s argument on appeal is based on her
    assertion that because the original certificates of analysis were
    incorrect, there was insufficient foundation to support the
    introduction of her chemical breath test results. The four foun-
    dational elements which the State must establish as a founda-
    tion for the admissibility of a breath test in a driving under
    the influence prosecution are as follows: (1) that the testing
    device was working properly at the time of the testing, (2)
    that the person administering the test was qualified and held
    a valid permit, (3) that the test was properly conducted under
    the methods stated by the Department of Health and Human
    Services, and (4) that all other statutes were satisfied.22 The
    certificate of analysis at issue in this appeal is required by 177
    Neb. Admin. Code, ch. 1, § 008.04A (2016), of the Department
    of Health and Human Services regulations. Krannawitter
    contends—as set forth above—that the State did not prove
    § 008.04A, which requires that the test be properly conducted
    under the methods stated by the Department of Health and
    Human Services.
    But Krannawitter’s assertion that there was improper
    foundation overlooks both the framework used to deter-
    mine whether a motion for new trial should be granted and
    the substantive effect of the amended certificates. We agree
    with Krannawitter that together with Palmer’s affidavit, the
    amended certificates of analysis showed that the original cer-
    tificates were incorrect.
    But we do not agree that this fact results in the conclusion
    that there was no foundation for the admission of the breath
    22
    State v. Jasa, 
    297 Neb. 822
    , 
    901 N.W.2d 315
     (2017).
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    test results. In addition to contributing to the evidence show-
    ing that the original certificates were incorrect, the amended
    certificates were independent foundational evidence supporting
    the admission of those results. And in addition to even these
    certificates, there was other evidence presented at the hearing
    on the amended motion for new trial that supported the admis-
    sibility of the results.
    Krannawitter also argued that her confrontation rights were
    violated when she was not permitted to confront the wit-
    nesses against her, specifically naming Hale. The district court
    rejected this claim in its order, citing to State v. Fischer 23
    wherein this court held that certificates of analysis similar to
    these are nontestimonial.
    Krannawitter argues that our prior case law is distinguish-
    able because there were amended certificates of analysis, the
    “primary purpose of [which] was to present after-the-fact evi-
    dence that the calibration verification was reliable so that the
    State could establish that the testing device was working prop-
    erly at the time the breath test was administered.”24 While we
    understand the distinction Krannawitter relies upon, we find
    that it makes no difference in this case.
    In concluding that such certificates of analysis were non-
    testimonial, this court in Fischer reasoned that the statements
    in a certificate “did not pertain to any particular pending mat-
    ter” and that the certificate “was prepared in a routine manner
    without regard to whether the certification related to any par-
    ticular defendant.”25
    This reasoning is also applicable to the amended certifi-
    cates now at issue. There is no indication from the face of
    the amended certificates that they were prepared for a par-
    ticular criminal proceeding. Rather, the testimony of one of the
    23
    State v. Fischer, 
    272 Neb. 963
    , 
    726 N.W.2d 176
     (2007).
    24
    Brief for appellant at 30-31.
    25
    State v. Fischer, 
    supra note 23
    , 
    272 Neb. at 971, 972
    , 726 N.W.2d at 182,
    183.
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    maintenance officers indicated that the amended certificates
    were “additional documentation” received by the county in
    connection with the simulator solutions in the county’s posses-
    sion and that the only difference between the original and the
    amended certificates was the name of the person who tested
    the solutions.
    Moreover, the record shows that that the amended cer-
    tificates were received by Lancaster County after the time
    Krannawitter was convicted and before the date Krannawitter
    filed her motion for new trial. Just as the original certificates
    were nontestimonial, so also were the amended certificates.
    There is no merit to Krannawitter’s contention to the contrary.
    Whether there was sufficient foundation for the admission
    of those results is a question for the trial court.26 At the hear-
    ing on the motion for new trial, the district court found that
    the foundational elements were met and that the results were
    admissible. As such, the trial court concluded that the results of
    a trial where the amended certificates of analysis were offered
    would not have been substantially different.
    We need not reach Krannawitter’s arguments on appeal
    regarding her due process rights, or whether the certificates
    of analysis were inadmissible hearsay, because neither was
    raised in her amended motion for new trial or at the hearing on
    that motion.
    The trial court did not abuse its discretion in denying
    Krannawitter’s amended motion for new trial.
    VI. CONCLUSION
    The judgment and sentence of the district court are affirmed.
    Affirmed.
    26
    See State v. Richardson, 
    285 Neb. 847
    , 
    830 N.W.2d 183
     (2013).