State v. Nielsen , 301 Neb. 88 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/12/2018 08:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. NIELSEN
    Cite as 
    301 Neb. 88
    State of Nebraska, appellee, v.
    M atthew W. Nielsen, appellant.
    ___ N.W.2d ___
    Filed September 14, 2018.   No. S-17-1033.
    1.	 Appeal and Error. Where no timely statement of errors is filed in an
    appeal from a county court to a district court, appellate review is limited
    to plain error.
    2.	 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 the Fourth Amendment
    protection is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    3.	 Constitutional Law: Courts: Search and Seizure: Police Officers
    and Sheriffs: Evidence. A court may decline to apply the exclusion-
    ary rule when evidence is obtained pursuant to an officer’s objective
    and reasonable reliance on a law that is not clearly unconstitutional at
    the time.
    4.	 Appeal and Error. An appellate court does not consider errors which
    are argued but not assigned.
    5.	 Search and Seizure: Proof. The State has the burden of showing that
    the good faith exception applies.
    Appeal from the District Court for Lancaster County, A ndrew
    R. Jacobsen, Judge, on appeal thereto from the County Court
    for Lancaster County, Timothy C. Phillips, Judge. Judgment of
    District Court affirmed.
    John S. Berry, of Berry Law Firm, for appellant.
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. NIELSEN
    Cite as 
    301 Neb. 88
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    Matthew W. Nielsen was convicted for driving under the
    influence, after having submitted to a pre-Birchfield blood
    draw.1 Based upon the exclusionary rule’s good faith excep-
    tion, the county court denied Nielsen’s motion to suppress.
    On appeal, the district court affirmed. On appeal to this court,
    Nielsen contends that the exception does not apply and that
    the State failed to raise the issue in the county court. Because
    our holding in State v. Hoerle 2 controls and because the State
    sufficiently raised the issue, the county court correctly denied
    the motion and the district court properly affirmed. Therefore,
    we also affirm.
    BACKGROUND
    A rrest
    On December 17, 2015, a police officer conducted a traffic
    stop and arrested Nielsen under suspicion of drunk driving.
    Ultimately, the arresting officer took Nielsen to a hospital.
    There, he read the “Post Arrest Chemical Test Advisement
    Form” to Nielsen. Nielsen signed the form and agreed to a
    blood draw.
    Motion to Suppress
    Based upon the results of the blood test, the State charged
    Nielsen in the county court with driving under the influence.
    Nielsen moved to suppress evidence obtained from the traffic
    1
    See Birchfield v. North Dakota, ___ U.S. ___, 
    136 S. Ct. 2160
    , 
    195 L. Ed. 2d 560
     (2016).
    2
    State v. Hoerle, 
    297 Neb. 840
    , 
    901 N.W.2d 327
     (2017).
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. NIELSEN
    Cite as 
    301 Neb. 88
    stop and warrantless blood draw. There were other charges not
    pertinent to this appeal.
    On his motion to suppress, Nielsen argued that the U.S.
    Supreme Court decision in Birchfield v. North Dakota 3 should
    retroactively control, because the Court determined that war-
    rantless blood tests are an unconstitutional search under the
    Fourth Amendment. According to the county court’s order
    disposing of the motion, the State responded that Birchfield
    should not apply retroactively based upon the decision in Davis
    v. United States.4
    The county court determined that while the blood draw was
    not voluntarily given, retroactive application of Birchfield was
    inappropriate, because the officer “acted on a good faith-belief
    that his conduct in obtaining the blood [draw] was lawful.”
    Accordingly, the court denied the motion.
    R emaining Procedural History
    The county court bifurcated Nielsen’s trial. The driving
    under the influence charge was tried to a jury and the remain-
    ing charges to the bench. The jury found Nielsen guilty, and the
    court imposed a sentence.
    Nielsen timely appealed to the district court. But he failed
    to submit a statement of errors, and that court reviewed only
    for plain error. It determined that the jury had sufficient
    evidence to convict and that the county court did not err in
    denying the motion to suppress. It affirmed the county court’s
    judgment.
    ASSIGNMENTS OF ERROR
    Nielsen assigns that (1) the district court erred in find-
    ing the good faith exception to the exclusionary rule applied
    and (2) the State failed to preserve the good faith exception
    for review.
    3
    Birchfield, 
    supra note 1
    .
    4
    Davis v. United States, 
    564 U.S. 229
    , 
    131 S. Ct. 2419
    , 
    180 L. Ed. 2d 285
    (2011).
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. NIELSEN
    Cite as 
    301 Neb. 88
    STANDARD OF REVIEW
    [1] Where no timely statement of errors is filed in an appeal
    from a county court to a district court, appellate review is lim-
    ited to plain error.5
    [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.
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trigger
    or violate the Fourth Amendment protection is a question of
    law that an appellate court reviews independently of the trial
    court’s determination.6
    ANALYSIS
    Good Faith Exception A pplication
    to Birchfield
    [3] Nielsen argues that the good faith exception should not
    be applied to pre-Birchfield cases, because consent was not
    voluntarily given. We settled this issue in Hoerle.7 A court
    may decline to apply the exclusionary rule when evidence is
    obtained pursuant to an officer’s objective and reasonable reli-
    ance on a law that is not clearly unconstitutional at the time.8
    We reasoned, “Because the officer here acted in objectively
    reasonable reliance on a statute that had not been found uncon-
    stitutional at the time, excluding the results of [the defendant’s]
    blood test would not serve the purpose of the exclusionary
    rule.” 9 We concluded that “the good faith exception applies to
    warrantless pre-Birchfield blood draws.”10
    5
    State v. Griffin, 
    270 Neb. 578
    , 
    705 N.W.2d 51
     (2005).
    6
    State v. Petsch, 
    300 Neb. 401
    , 
    914 N.W.2d 448
     (2018).
    7
    Hoerle, 
    supra note 2
    .
    8
    
    Id.
    9
    
    Id. at 851
    , 901 N.W.2d at 334.
    10
    Id.
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. NIELSEN
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    301 Neb. 88
    The same conclusion applies here. Nielsen was arrested on
    December 17, 2015, and Birchfield was decided on June 23,
    2016. The county court applied the good faith exception to
    Nielsen’s pre-Birchfield blood draw. The district court found
    no plain error. Neither do we.
    Asserting Good Faith Exception
    Nielsen argues that in the county court, the State failed
    to assert the good faith exception. Thus, he contends, this
    court should not consider whether the exception applies. The
    State responds that it did raise good faith in the county court.
    Moreover, the State argues, Nielsen cited no authority preclud-
    ing the State from asserting the exception on appeal.
    But, as we have already implicitly recognized, the State did
    raise the exception. The county court, in denying the motion,
    stated that “[i]n support of it[s] position [the State] cites Davis
    v. United States . . . .” The Davis Court held that “searches
    conducted in objectively reasonable reliance on binding appel-
    late precedent are not subject to the exclusionary rule.”11 In
    doing so, the Davis Court expressly relied on the United States
    v. Leon12 good faith exception rationale. Because the State
    cited to Davis, it sufficiently raised the issue.
    [4] Nielsen argues that at the suppression hearing, the arrest-
    ing officer’s testimony on this point was on redirect exami-
    nation that exceeded the scope of cross-examination. Thus,
    he argues, it cannot be used to show that the officer relied
    on the implied consent statute when he conducted the blood
    draw. But Nielsen did not object to the testimony. Nor did he
    raise the matter in the district court—he filed no statement of
    errors. And even in this court, his brief assigned no evidentiary
    error. An appellate court does not consider errors which are
    argued but not assigned.13 For a multiplicity of reasons, we do
    11
    Davis, supra note 4, 
    564 U.S. at 232
    .
    12
    United States v. Leon, 
    468 U.S. 897
    , 
    104 S. Ct. 3405
    , 
    82 L. Ed. 2d 677
    (1984).
    13
    State v. Sellers, 
    290 Neb. 18
    , 
    858 N.W.2d 577
     (2015).
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    STATE v. NIELSEN
    Cite as 
    301 Neb. 88
    not address Nielsen’s argument regarding allegedly improper
    redirect examination.
    [5] Although we do not reach the State’s argument that
    raising good faith for the first time on appeal is sufficient,
    Nielsen’s contrary premise seems unconvincing. Our decision
    in State v. Tompkins14 declined to answer the precise question.
    We recognize that the State has the burden of showing that the
    good faith exception applies.15 In Tompkins, we stressed that
    an appellate court on its own motion cannot consider the good
    faith exception. In brief and at oral argument, except perhaps
    for a fleeting reference, the State did not challenge the hold-
    ing of Tompkins. But we also said that “at the appellate level,
    the State has ample opportunity to raise the Leon good faith
    exception.”16 This would suggest that in order for an appel-
    late court to consider the good faith exception, the State can
    raise it either at the trial court or on appeal. Here, the State
    presented the county court with case law expressly relying on
    a good faith exception. The citation directly spoke to the issue
    of good faith. Even if Nielsen’s premise was correct, no more
    was required. Once again, we find no plain error.
    CONCLUSION
    We conclude that the district court did not err in performing
    its review for plain error. There was no plain error in applying
    the good faith exception to warrantless pre-Birchfield blood
    draws or in determining that the State raised the good faith
    exception. We affirm the decision of the district court.
    A ffirmed.
    14
    State v. Tompkins, 
    272 Neb. 547
    , 
    723 N.W.2d 344
     (2006).
    15
    See 
    id.
     See, also, U.S. v. Diehl, 
    276 F.3d 32
     (1st Cir. 2002); State v.
    Havatone, 
    241 Ariz. 506
    , 
    389 P.3d 1251
     (2017); People v. Willis, 
    28 Cal. 4th 22
    , 
    46 P.3d 898
    , 
    120 Cal. Rptr. 2d 105
     (2002); People v. Gutierrez, 
    222 P.3d 925
     (Colo. 2009).
    16
    Tompkins, 
    supra note 14
    , 
    272 Neb. at 552
    , 723 N.W.2d at 349.