State v. Au ( 2013 )

Nebraska Advance Sheets
STATE v. AU 797
Cite as 285 Neb. 797designated as an expert. We further conclude that the Court
of Appeals erred in holding that this error was not prejudicial.
Finding prejudicial error, we reverse the judgment of the Court
of Appeals and remand this matter with directions that it vacate
the district court’s judgment and remand this cause to the dis-
trict court for a new trial.
R eversed and remanded with directions.
Stephan, J., participating on briefs.
Wright, Miller-Lerman, and Cassel, JJ., not participating.
State of Nebraska, appellee, v.
Doan Q. Au, appellant.
___ N.W.2d ___
Filed May 3, 2013. No. S-12-040.
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 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 inde-
pendently of the trial court’s determination.
2. Statutes. The interpretation of a statute presents a question of law.
3. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
4. Police Officers and Sheriffs: Probable Cause. Probable cause merely requires
that the facts available to the officer would cause a reasonably cautious person to
believe that the suspect has committed an offense; it does not demand any show-
ing that this belief be correct or more likely true than false.
5. Statutes. Statutory language is to be given its plain and ordinary meaning.
6. ____. Absent a statutory indication to the contrary, words in a statute will be
given their ordinary meaning.
7. Words and Phrases. “Practicable” generally means capable of being done,
effected, or put into practice with the available means, i.e., feasible.
8. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention, something more than an incho-
ate and unparticularized hunch, but less than the level of suspicion required for
probable cause.
9. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative
Stops: Probable Cause. Under the Fourth Amendment, a policeman who lacks
probable cause but whose observations lead him reasonably to suspect that a
particular person has committed, is committing, or is about to commit a crime,
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798 285 NEBRASKA REPORTS
may detain that person briefly in order to investigate the circumstances that pro-
voke suspicion.
10. Investigative Stops. An investigatory stop and resulting inquiry must be reason-
ably related in scope to the justification for their initiation.
11. Motor Vehicles: Investigative Stops: Probable Cause. Observation of a vehicle
weaving in its own lane of traffic provides an articulable basis or reasonable sus-
picion for stopping a vehicle for investigation regarding the driver’s condition.
12. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Reversed and remanded for further
proceedings.
William J. O’Brien for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
In this appeal, we first determine whether evidence that a
vehicle momentarily touched or crossed a lane divider line,
without more, established a statutory violation and thereby
provided probable cause for a traffic stop. It did not, because
the controlling statute requires that a vehicle remain in a
single lane only “as nearly as practicable.” Second, because
the arresting officer admitted that this “happens all the time”
and failed to distinguish how this case differed from normal
behavior, there was no reasonable suspicion of criminal activ-
ity sufficient to support an investigatory stop. We reverse the
judgment of the district court and remand the cause for fur-
ther proceedings.
BACKGROUND
On September 22, 2010, Officer Kristopher Peterson of
the Douglas County Sheriff’s Department pulled over a vehi-
cle with out-of-state license plates heading eastbound on
Nebraska Advance Sheets
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Cite as 285 Neb. 797Interstate 80 because it momentarily crossed over the divider
line between the two eastbound lanes. Doan Q. Au was a pas-
senger in the vehicle. Based upon the suspicions Peterson
developed while issuing a warning ticket for the alleged traffic
violation, he deployed a drug detection dog, searched the vehi-
cle, and ultimately discovered numerous packets of cocaine in
a hidden compartment in the trunk.
Au was charged with unlawful possession with intent to
deliver a controlled substance and entered a plea of not
guilty. Prior to trial, Au filed a motion to suppress any and
all evidence that resulted from the traffic stop and search of
the vehicle.
At the suppression hearing, the district court received evi-
dence and heard Peterson’s testimony, which established the
events that transpired immediately before the initial traffic
stop and leading up to Au’s arrest. Peterson testified that he
initiated the traffic stop at 10:08 p.m. after he observed that
most of the vehicle’s “left, or driver’s side, tires briefly, briefly
crossed over the white divider line, crossing into the inside
lane for several hundred feet.” He twice observed the vehicle
touch the divider line in this manner. Peterson made this obser-
vation immediately after the vehicle crossed a diagonal seam
or “break in the road” which made the pavement a “little bit”
uneven and on a stretch of road that curved slightly to the left.
Peterson admitted that it was “more difficult” for a driver to
maintain his lane under such conditions.
The district court received video footage from Peterson’s
cruiser, showing the traffic stop and the alleged traffic offense
that precipitated it, all occurring after nightfall. The video
depicts the subject vehicle touching and partially crossing the
divider line with its left tires in a manner and under condi-
tions consistent with Peterson’s testimony. Additionally, the
video shows another vehicle preparing to merge onto the
Interstate into the subject vehicle’s lane just prior to the sec-
ond time that it deviated from its lane and away from the
merging traffic.
Referring to vehicles touching the lane divider line, Peterson
admitted that “it happens commonly” and that it “happens
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800 285 NEBRASKA REPORTS
quite a bit.” He testified that when a vehicle fails to maintain
its lane, it could indicate that the driver is impaired by an ille-
gal substance or alcohol, or that the driver is “overly tired.”
Peterson declined to describe what he observed in the instant
case as erratic driving, but he opined that it was “definitely
impaired in some manner.” Peterson testified that it was his
“general practice” to stop vehicles for crossing the centerline
“[w]hen practical . . . .” He stated that even though such behav-
ior is a common occurrence, it raises safety concerns for the
driver of the subject vehicle and other drivers; but he did not
explain how touching or crossing the line without any nearby
traffic would affect safety.
Later, Peterson admitted that it “happens all the time by
people [who] are driving [and who] aren’t under the influence
or fatigued.” In the instant case, the driver of the vehicle had
committed no other traffic violations aside from crossing the
centerline, and there were no other vehicles in the immedi-
ate vicinity.
Because of the resolution of this appeal, we only briefly
summarize the events that followed. After stopping the vehicle,
Peterson questioned the driver and Au separately. After giving
the driver a warning ticket, Peterson did not allow the parties
to leave and deployed a drug detection dog. The dog alerted
and indicated. Upon searching the vehicle, Peterson discovered
cocaine. The driver and Au were arrested.
Based upon Peterson’s testimony, the district court overruled
Au’s motion to suppress. The court stated:
The . . . vehicle, as observed by [Peterson], did cross
the center line on more than one occasion, which would
be sufficient to create probable cause to stop said vehicle
and make contact with the driver.
In the present case, [Peterson] did have objective artic-
ulable probable cause that a violation had occurred and
therefore the stop of the vehicle was lawful.
The case proceeded to a stipulated bench trial. During the
trial, Au renewed his motion to suppress. The district court
treated the renewal of the motion to suppress as though it
were made at the commencement of the trial and overruled
the motion.
Nebraska Advance Sheets
STATE v. AU 801
Cite as 285 Neb. 797The district court found Au guilty of unlawful possession
with intent to deliver a controlled substance, a Class IC felony,
and sentenced him to 10 to 12 years’ imprisonment.
Au filed a timely appeal. Pursuant to statutory authority, we
moved this case to our docket.1
ASSIGNMENTS OF ERROR
Au assigns, restated, that the district court erred in overrul-
ing his motion to suppress, because Peterson lacked (1) a con-
stitutionally sufficient basis for stopping the vehicle in which
Au was a passenger and (2) a reasonable suspicion to detain Au
after the initial purpose of the traffic stop was completed. We
reach only the first of these two issues.
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 protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.2
[2] The interpretation of a statute presents a question of law.3
ANALYSIS
No Probable Cause for Traffic Stop.
[3,4] In ruling upon Au’s motion to suppress, the district
court relied upon the well-established principle that a traffic
violation, no matter how minor, creates probable cause to stop
the driver of a vehicle.4 Probable cause merely requires that the
facts available to the officer would cause a reasonably cautious
person to believe that the suspect has committed an offense;
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S.
___, 133 S. Ct. 158, 184 L. Ed. 2d 78.
3
State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).
4
State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).
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802 285 NEBRASKA REPORTS
it does not demand any showing that this belief be correct or
more likely true than false.5
The district court viewed any crossing of a lane divider as a
traffic violation. The court reasoned, “The . . . vehicle . . . did
cross the center line on more than one occasion, which would
be sufficient to create probable cause to stop said vehicle
and make contact with the driver.” This reasoning mirrored
Peterson’s explanation. Peterson testified that he ordinarily
pulls a car over when the car touches the lane divider line.
The district court’s statutory interpretation affords no consider-
ation to the surrounding circumstances. The controlling statute
clearly mandates otherwise.
[5,6] We first focus on the exact language of the statute
and the principles that govern our reading of it. Whenever a
roadway has been divided into two or more clearly marked
lanes for traffic, Neb. Rev. Stat. § 60-6,139(1) (Reissue 2010)
requires that “[a] vehicle shall be driven as nearly as practica-
ble within a single lane and shall not be moved from such lane
until the driver has first ascertained that such movement can be
made with safety.” Statutory language is to be given its plain
and ordinary meaning.6 A similar rule applies to specific words
within a statute. Absent a statutory indication to the contrary,
words in a statute will be given their ordinary meaning.7 We
interpret this statute without deference to the meaning given to
it by the district court.
Although other statutes strictly declare particular actions to
be traffic violations, § 60-6,139(1) employs language expressly
requiring consideration of the surrounding circumstances. We
recently held that a vehicle crossing a fog line and driving on
the shoulder of the highway, albeit very briefly, violated the
statute prohibiting driving on a shoulder.8 But Au correctly
argues that the language of § 60-6,139(1) is significantly
5
State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
6
State v. Magallanes, supra note 4.
7
State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).
8
See State v. Magallanes, supra note 4.
Nebraska Advance Sheets
STATE v. AU 803
Cite as 285 Neb. 797different in that it merely requires that a vehicle be driven
within a single lane “as nearly as practicable.”
[7] The words “as nearly as practicable” invoke a stan-
dard inconsistent with the district court’s interpretation.
“Practicable” generally means capable of being done, effected,
or put into practice with the available means, i.e., feasible.9 It
has also been described as meaning possible or feasible, able
to be done, or capable of being put into practice.10 A feasibil-
ity standard requires that the surrounding circumstances be
considered. Further, the words “as nearly as” convey that the
statutory standard does not require absolute adherence to a fea-
sibility requirement, but, rather, something less rigorous.
Peterson’s testimony failed to establish that the vehicle was
not driven “as nearly as practicable” in the right-hand lane. He
admitted that just before crossing the line, the vehicle crossed
a “break in the road,” and that the pavement there was a “little
bit” uneven. He also acknowledged that the vehicle was travel-
ing around a curve and that it is “more difficult” to maintain
one’s lane when driving around a curve as opposed to going
straight. But he failed to explain how, in the light of these cir-
cumstances, it was still feasible for the vehicle to not touch or
slightly cross the line. Instead, he evidently assumed that any
touching or crossing of the lane divider line necessarily consti-
tuted a traffic infraction.
Moreover, Peterson’s testimony showed that touching or
crossing lane divider lines was a common occurrence, which
clearly bears on the practicability of not doing so. He admitted
that in the normal course of driving on the Interstate, vehicles
often touch the left- or right-hand lines and that “it happens
commonly.” Nonetheless, he insisted that he would stop any
such vehicle both because the driver would have committed
a violation and in order to protect the safety of the driver and
other drivers. While we discuss the matter of driver safety
below, at this juncture, we consider only whether touching or
9
Webster’s Third New International Dictionary of the English Language,
Unabridged 1780 (1993).
10
Id.
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crossing the divider line violated the statute. And we conclude
that it did not.
The district court erred in treating the mere touching
or crossing of a lane divider line as a traffic violation.
Consequently, the court erred in determining that probable
cause existed for the stop. But our inquiry does not end here.
We must also consider whether this was a permissible inves-
tigatory stop.
No Reasonable Suspicion of
Criminal Activity.
[8] The State also argues that based on Peterson’s observa-
tions, he had a reasonable suspicion of criminal activity and
another legal standard permitted the traffic stop. Reasonable
suspicion entails some minimal level of objective justification
for detention, something more than an inchoate and unpar-
ticularized hunch, but less than the level of suspicion required
for probable cause.11 Au responds that whether the standard is
probable cause or reasonable suspicion, the circumstances in
the instant case failed to rise to that level.
Under our standard of review, we review the district court’s
factual findings for clear error but review the determination
of reasonable suspicion independently. Upon our indepen-
dent review, we find ourselves confronted by the rare case
where the law enforcement officer’s testimony completely
undermines the existence of a reasonable suspicion of crimi-
nal activity.
[9,10] The U.S. Supreme Court has long held that under the
Fourth Amendment, a police officer who lacks probable cause
but whose observations lead him reasonably to suspect that a
particular person has committed, is committing, or is about
to commit a crime, may detain that person briefly in order to
investigate the circumstances that provoke suspicion.12 The
stop and inquiry must be reasonably related in scope to the
11
State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).
12
See, Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct.
2574, 45 L. Ed. 2d 607 (1975).
Nebraska Advance Sheets
STATE v. AU 805
Cite as 285 Neb. 797justification for their initiation.13 Typically, this means that the
officer may ask the detainee a moderate number of questions to
determine his identity and to try to obtain information confirm-
ing or dispelling the officer’s suspicions.14
[11] In cases involving impaired drivers, we have long held
that observation of a vehicle weaving in its own lane of traf-
fic provides an articulable basis or reasonable suspicion for
stopping a vehicle for investigation regarding the driver’s
condition.15 It was sufficient where the officer observed the
motorist to weave only twice, once sharply from right to left
within the lane and a second time a little over 1 mile later.16 We
upheld another investigatory stop where the driver gradually
moved to the left toward a center island, then to the right to
the right-hand lane line, then back to the left toward the cen-
ter island, and finally back right to the lane divider line, even
though the vehicle never touched the center island or crossed
the lane divider line.17 Another investigatory stop addressed a
driver who weaved three or four times from the centerline of
an extra-wide northbound lane into those areas which were
free of parked cars along the curb.18 If weaving within a lane
is sufficient to support a reasonable suspicion of impaired driv-
ing, instances involving touching or crossing a lane divider
line would frequently provide a similar reasonable suspicion
of impairment. But in each of those cases involving weav-
ing vehicles, we were not confronted by testimony admitting
that the observed behavior “happens all the time” with unim-
paired drivers.
The only evidence of a reasonable suspicion is Peterson’s
observation of the vehicle’s crossing the white lane divider
line and his bare assertion that he suspected impairment.
13
See id.
14
Berkemer v. McCarty, supra note 12.
15
See State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987).
16
Id.
17
State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).
18
State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988) (superseded by
statute on other grounds as stated in Smith v. State Dept. of Motor Vehicles,
248 Neb. 360, 535 N.W.2d 694 (1995)).
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The vehicle’s left tires briefly crossed over the white divider
line, crossing into the left-hand lane for several hundred feet.
Peterson claimed that the driver might have been impaired,
“whether it’s with some type of illegal substance, alcohol,
or it could just mean that the driver [was] impaired by being
overly tired.”
But Peterson’s own testimony demolished his claim that he
had a reasonable suspicion that the driver was intoxicated or
fatigued. On cross-examination referring to vehicles touch-
ing the lane divider line, he admitted that “this happens quite
a bit” and that it “happens all the time by people [who] are
driving [and who] aren’t under the influence or fatigued.” He
did not attempt to explain how the circumstances in the case
before us differed from what “happens all the time” with unim-
paired drivers.
We also consider the other circumstances—the break in
the road with the resulting uneven pavement, the curve in the
highway, the merging vehicle depicted in the video recording
just prior to the second deviation from the lane, the likelihood
of an out-of-state driver’s being unfamiliar with the particular
section of road, and the nighttime darkness. When we subtract
all of these circumstances from the bare touching or crossing of
the lane divider line, all that remains is an inchoate and unpar-
ticularized hunch. That is not enough.
We emphasize that this is not the typical case where a law
enforcement officer testifies to evidence of impairment suf-
ficient to establish a reasonable suspicion of criminal activity.
Here, unlike the usual case, Peterson both admitted that the
driver’s conduct “happens all the time” by unimpaired drivers
and failed to testify to any circumstances distinguishing this
event from the norm. Thus, we conclude that the record does
not establish a reasonable suspicion of criminal activity suffi-
cient to justify the traffic stop.
Further Detention After Traffic
Stop Was Completed.
[12] Because we conclude that the traffic stop was not sup-
ported by either probable cause or a reasonable suspicion of
criminal activity, we do not reach Au’s second assignment of
Nebraska Advance Sheets
STATE v. AU 807
Cite as 285 Neb. 797error. An appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it.19
CONCLUSION
Section 60-6,139(1) requires a motor vehicle operator to
remain within a traffic lane only “as nearly as practicable.”
Contrary to the district court’s implicit interpretation, mere
touching or crossing of a lane divider line, without more, is not
a violation of § 60-6,139(1). Because the State failed to estab-
lish the violation of a statute, it failed to establish probable
cause to justify the traffic stop.
The State also failed to establish that the officer had a rea-
sonable suspicion of criminal activity sufficient to justify an
investigatory stop. He admitted that minor touching or crossing
of lane divider lines “happens all the time” by unimpaired driv-
ers. He failed to point to any other circumstance supporting a
reasonable suspicion of an impaired driver.
Because the traffic stop was not supported by either prob-
able cause or a reasonable suspicion of criminal activity, the
district court erred in failing to sustain Au’s motion to sup-
press the evidence resulting from the traffic stop. We therefore
reverse the judgment and remand the cause for further proceed-
ings consistent with this opinion.
R eversed and remanded for
further proceedings.
McCormack, J., participating on briefs.
19
State v. Jiminez, 283 Neb. 95, 808 N.W.2d 352 (2012).