State v. Dunn ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. DUNN
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.
TREVOR DUNN, APPELLANT.
Filed January 15, 2019. No. A-17-1115.
Appeal from the District Court for Scotts Bluff County: LEO P. DOBROVOLNY, Judge.
Affirmed as modified.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
MOORE, Chief Judge.
INTRODUCTION
Trevor Dunn appeals his conviction in the district court for Scotts Bluff County for driving
under the influence, second offense, with refusal to submit to a chemical test. He assigns that the
district court erred in failing to sustain his motion to suppress. He argues that the vehicle
checkpoint where law enforcement collected evidence against him was an unconstitutional seizure.
Finding no merit to Dunn’s arguments, we affirm his conviction with a minor modification to his
sentence.
BACKGROUND
On October 21, 2016, Troopers Courtney Horak, Brandon Bulke, and Madison Norrie with
the Nebraska State Patrol set up a vehicle checkpoint at the intersection of East Lyman Road and
South Morrill Road in Scotts Bluff County. During the approximately 1-hour check, Bulke and
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Norrie stopped Dunn. They determined him to be intoxicated, arrested him for driving under the
influence of alcohol, and detained him in the county jail.
On January 5, 2017, the State filed an information charging Dunn with one count of driving
under the influence, third offense, with refusal under Neb. Rev. Stat. § 60-6,196 (Cum. Supp.
2016), a Class IIIA felony, and one count of refusal to submit to a chemical test under Neb. Rev.
Stat. § 60-6,197 (Cum. Supp. 2016), a Class W misdemeanor.
Dunn filed a motion to suppress, which alleged that law enforcement collected all evidence
against him through an unlawful seizure in violation of the 4th, 5th, and 14th Amendments to the
U.S. Constitution and Art. I. §§ 1, 3, and 7 of the Nebraska Constitution. The district court held a
hearing on Dunn’s motion on May 10, 2017. Horak, Bulke, and Norrie all testified.
Horak is a trooper with the Nebraska State Patrol, and Sergeant Buxbaum is her supervisor.
Horak works vehicle checkpoints when they are assigned to her. Generally, one of her supervisors
decides the location and time of the checkpoint, and then he or she notifies the troopers assigned
to that checkpoint.
Horak had reviewed the Nebraska State Patrol’s policy for vehicle checkpoints, which the
court admitted into evidence. Among other requirements, the policy stated “[t]he decision to make
the vehicle stop or limited special purpose checkpoint must be made by a neutral source, such as
a supervisor who is not involved in conducting the operation in the field.” That neutral source must
choose the location of the checkpoint at the time he or she decides to order that it occur. The policy
allows troopers to perform a vehicle checkpoint “in cooperation with other law enforcement
agencies following this or comparable policies.” Additionally, except at times of heavy traffic flow
or when there were more than three waiting vehicles per officer, the policy required all vehicles to
be stopped and checked.
In Horak’s experience performing checkpoints, officers receive a map of the checkpoint
and directions on where to position the checkpoint’s signs. The officers also usually receive the
link to a computerized document that records who participated in the check, the people those
officers stopped, and any activity the officers observed during the check. Checkpoint supervisors
must ensure that the check is set up according to the directions on the map.
Horak was assigned to be the supervisor of the October 21, 2016, checkpoint. As such, she
ensured that the assigned officers followed the checkpoint plan and policy. Buhlke and Norrie
were assigned to work with her. The plan, which the court admitted into evidence, required the
officers to stop all traffic that passed through the intersection of East Lyman Road and South
Morrill Road between 11 p.m. and 12:01 a.m. According to Horak, this was a limited purpose
checkpoint in which the officers checked drivers’ licenses, registration, and proof of insurance.
Drivers were not required to exit their vehicle unless another law violation was observed. Although
the plan stated that Buxbaum approved it at 1600 hours on October 21, it did not contain
Buxbaum’s signature. Horak testified that the officers followed the plan.
Horak did not know why the particular location and time for the October 21, 2016,
checkpoint were selected. Generally, State Patrol supervisors select locations for checkpoints that
have issues with vehicle accidents, drunk driving, and any type of criminal activity.
Bulke works in traffic enforcement at the Nebraska State Patrol and Buxbaum assigned
him to the checkpoint on October 21, 2016. He was instructed to check the vehicles’ licenses,
registration, and insurance. In addition to the three troopers, a game and parks officer was present
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at the stop. Dunn approached the vehicle check from East Lyman heading eastbound with no
visible signs of impairment. Bulke and Norrie contacted Dunn at the checkpoint. Bulke approached
Dunn on the driver side of his vehicle. Bulke detected the odor of alcohol emitting from Dunn’s
vehicle when he asked Dunn to produce his license registration, and insurance.
Bulke asked Dunn to pull off to the side of the road and asked whether he had anything to
drink. Dunn replied that he had “one or two or one and a half.” When Dunn stepped out of the
vehicle, Bulke observed spilled beer on the vehicle’s floor as well as beer cans in the back seat
behind the driver’s seat and under the driver’s seat in front. Dunn stumbled and swayed as he got
out of the vehicle and walked over to the patrol unit. He refused the standardized field sobriety
tests. Bulke then asked Dunn to take a seat in the front of the patrol unit. Bulke administered a
preliminary breath test, which showed that Dunn had a blood alcohol level of 0.248 per 210 liters
of breath. Dunn was then placed under arrest for operating a motor vehicle under the influence of
alcohol.
Norrie was a traffic trooper with the Nebraska State Patrol on field training during the
October 21, 2016, vehicle checkpoint. She also had contact with Dunn. Norrie approached the
passenger’s side of Dunn’s vehicle and noticed fresh drippings on the middle console. After
shining her flashlight into the car, she saw open containers of beer in the back seat and underneath
the driver’s seat. She observed Dunn stumble out of his vehicle and struggled to put on his jacket,
which together led Norrie to believe he was impaired by alcohol.
Norrie observed Bulke administer a breath test on Dunn, the results of which led them to
arrest him for driving under the influence of alcohol. They took him to the Scotts Bluff County
jail, where Norrie read the post arrest advisement form to Dunn, and he signed it. She also advised
Dunn that refusal to take the chemical test was its own separate crime. Nevertheless, Dunn refused
to provide a chemical test.
The district court entered an order denying Dunn’s motion to suppress. The order made the
following findings relevant to Dunn’s arguments on appeal: Buxbaum approved a checkpoint to
occur at the intersection of East Lyman Road and South Morrill Road in Scotts Bluff County,
where there had been a number of accidents. The purpose of the checkpoint was to check license,
registration, and insurance. The checkpoint was conducted in accordance with the State Patrol
policies and procedures for a valid purpose, and all vehicles that entered the intersection were
stopped. The check was not operated under the “unfettered discretion of law enforcement officers.”
On August 29, 2017, the district court held a trial on stipulated facts, which summarized
the testimony from the May 10 suppression hearing. Dunn objected to the contents of the
stipulation on the same grounds as his motion to suppress. The court overruled Dunn’s objection,
and received the stipulated facts into evidence. The court then noted the following agreement:
The evidence that the Court will receive in order to make a guilt or innocence finding is
[the stipulation]. The State will dismiss by Amended Information the second charge in the
Information, which is refusal to submit to a chemical test, and the case will be enhanced
by the State through the offering of evidence here today to a second, rather than a third
offense.
Our record does not contain the above referenced amended information. The court also received
the transcript from one of Dunn’s prior convictions for driving under the influence of alcohol.
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The district court entered an order on September 5, 2017. The court convicted Dunn of
driving under the influence, second offense, with refusal to submit to a chemical test. The court
ordered the preparation of a presentence investigation report, including a substance abuse
evaluation, for review at a later sentencing hearing. After the sentencing hearing, the court entered
an order sentencing Dunn to imprisonment in the county jail for 120 days; suspending his motor
vehicle operator’s license for 3 years; allowing him to apply for an interlock device after 45 days;
and requiring him to abstain from alcohol use for 60 days, during which time the court directed
him to wear a continuous alcohol monitoring device.
Dunn appeals.
ASSIGNMENTS OF ERROR
Dunn assigns that the district court erred in overruling his motion to suppress.
STANDARD OF REVIEW
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 protection is a question of law that an appellate
court reviews independently of the trial court’s determination. State v. Thompson, 301 Neb. 472,
919 N.W.2d 122 (2018).
ANALYSIS
Motion to Suppress.
Dunn assigns that the district court erred in denying his motion to suppress, which alleged
that law enforcement unconstitutionally obtained evidence at the checkpoint of him driving under
the influence of alcohol. As discussed below, we find that the checkpoint complied with both the
U.S. Constitution and the Nebraska Constitution, and thus, the court properly denied Dunn’s
motion.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution protect individuals against unreasonable searches and seizures by the government.
State v. Sievers, 300 Neb. 26, 911 N.W.2d 607 (2018). A vehicle stop at a highway checkpoint
effectuates a “seizure” within the meaning of the Fourth Amendment. State v. Piper, 289 Neb.
364, 855 N.W.2d 1 (2014). Whether a checkpoint is lawful thus depends upon whether it is
reasonable. Id. Reasonableness of seizures that are less intrusive than a traditional arrest involves
a weighing of the gravity of the public concerns served by the seizure, the degree to which the
seizure advances the public interest, and the severity of the interference with individual liberty.
Sievers, supra.
The public interest served by a checkpoint is assessed according to its primary purpose.
See Piper, supra. A court does not look at the subjective intent of individual law enforcement
officers administering the checkpoint, but examines purpose “‘at the programmatic level.’” Id. at
376, 855 N.W.2d at 10. Checkpoints designed to police the border, to ensure roadway safety, and
to prevent drunken driving are constitutionally permissible. See id. The U.S. Supreme Court,
however, has declined to approve checkpoints “whose primary purpose is ultimately
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indistinguishable from the general interest in crime control.” Indianapolis v. Edmond, 531 U.S.
32, 44, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). See, also, Delaware v. Prouse, 440 U.S. 648,
659 n.18, 99 S. Ct. 1931, 59 L. Ed. 2d 660 (1979).
The intrusion effectuated by a checkpoint can, depending on the circumstances, be slight
and minimal. Piper, supra. However, even where a checkpoint effectuates only a limited intrusion,
it cannot subject motorists to “‘the unbridled discretion of law enforcement officials.’” Id. at 377,
855 N.W.2d at 11. A central concern in balancing these competing considerations in a variety of
settings has been to assure that an individual’s reasonable expectation of privacy is not subject to
arbitrary invasions solely at the unfettered discretion of officers in the field. State v. Crom, 222
Neb. 273, 383 N.W.2d 461 (1986). Further, the Nebraska Supreme Court has stated “[w]hen the
State Patrol disregards its own rules, the troopers in the field are free to act with unconstrained
discretion.” State v. One 1987 Toyota Pickup, 233 Neb. 670, 447 N.W.2d 243 (1989), overruled
on other grounds, State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999).
The Piper case is instructive. The defendant in that case was stopped at a vehicle
checkpoint, where she was discovered to be driving under the influence of alcohol. The checkpoint
was part of an alcohol-related enforcement program. The troopers who performed the checkpoint
followed both a plan that their supervisors approved and an official State Patrol policy that
considered the constitutional privacy limitations on checkpoints. The trial court denied the
defendant’s motion to suppress evidence from the checkpoint and convicted her of driving under
the influence.
On appeal, the defendant argued that to protect drivers’ privacy interests from the
unfettered discretion of law enforcement, a checkpoint plan must be conceived at the policymaking
level. The Nebraska Supreme Court rejected this argument. The court stated that instead of
focusing on who created the plan, a court should consider “whether the checkpoint was approved
and whether it was operated in accordance with the approved plan and State Patrol policy, as well
as any other circumstances that may indicate the exercise of unfettered discretion.” Piper, 289
Neb. at 380, 855 N.W.2d at 13.
The court in Piper observed that the supervisor who approved the plan was not involved in
the checkpoint. The established plan outlined the date, time, location, and duration of the
checkpoint as well as the pattern for placement of signs and flares. Further, the checkpoint plan
was made by a neutral source, a State Patrol sergeant who worked in a supervisory capacity, in
compliance with State Patrol policy. The officers who conducted the checkpoint did not formulate
the plan or the State Patrol policy. As a result, the court found that the checkpoint was not an
unreasonable search and seizure. Piper, supra.
The facts in the present case are similar to Piper. The record shows that the checkpoint was
designed to comply with the Nebraska State Patrol policy on vehicle checkpoints. There was no
direct testimony about who decided to perform the checkpoint in this case, but Horak testified that,
generally, one of her supervisors decides the location and time for a checkpoint. Although his
signature is not on the plan, the plan showed that it was approved by Buxbaum, Horak’s supervisor.
None of the troopers involved in the checkpoint chose the location and time; rather, they performed
the checkpoint according to their assignment. Taken together, this evidence is sufficient to support
the conclusion that, in compliance with the State Patrol policy and constitutional requirements, the
person who designed the checkpoint plan was not involved in conducting the operation in the field.
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Contrary to Dunn’s argument, the law does not require that the checkpoint plan be
approved at the policymaking level. Instead, the checkpoint must be operated in accordance with
“an approved plan that conformed to State Patrol policy.” See id. at 380, 855 N.W.2d at 13. The
evidence supports that the checkpoint in question satisfied these requirements.
Moreover, the intrusion in this case was minimal. Bulke testified that the troopers were
instructed to check only the licenses, registration, and insurance of the vehicles that passed through
the intersection. The troopers stopped all traffic that passed through the intersection at the time of
the checkpoint and requested they produce the above documents. Drivers were not asked to exit
their vehicles unless a law violation was observed. There is no evidence that the troopers treated
Dunn differently than the other traffic driving through the intersection. In view of the evidence,
we conclude that the troopers did not act with “unbridled” or “unfettered” discretion under Piper,
supra, and Crom, supra.
Dunn argues that the primary purpose of the October 21, 2016, vehicle checkpoint was
ultimately indistinguishable from law enforcement’s general interest in crime control, and
therefore, it was impermissible under the Fourth Amendment. He points out that because Baxbaum
did not testify, the record contains no evidence about what governmental interests the vehicle
checkpoint performed.
While Horak admitted that she did not know why the location and time for the October 21,
2016, checkpoint was selected, she testified that State Patrol supervisors select locations for
checkpoints that have issues with vehicle accidents, drunk driving, and any type of criminal
activity. Bulke testified that he was instructed to check license, registration, and proof of insurance,
which is integral to roadway safety. Thus, the record supports the conclusion that the purpose of
the checkpoint was to ensure roadway safety, which the U.S. Supreme Court has specifically stated
is a permissible purpose under the Fourth Amendment. See Edmond, supra. We conclude that the
district court was not clearly erroneous in finding that the checkpoint was conducted for a valid
purpose, which was more than a general interest in crime control. Weighing the public interest
served and the interference with individual liberty, we conclude that the checkpoint was reasonable
under the Fourth Amendment.
Dunn also argues that the checkpoint was improper because a game and parks official was
present, which presence was not part of the Nebraska State Patrol approved plan. We disagree.
The State Patrol’s policy specifically allows troopers to perform vehicle checkpoints “in
cooperation with other law enforcement agencies following this or comparable policies.” Dunn
has presented no evidence to show that the game and parks official did not follow the State Patrol
policy or prevented the troopers from executing the approved plan. Further, we find no evidence
in the record showing that the presence of game and parks official violated Dunn’s reasonable
expectation of privacy or caused the checkpoint to be unreasonable under the Fourth Amendment.
In view of the above we find the district court did not err in denying Dunn’s motion to
suppress.
Statutory Sentence.
We note that the district court inadvertently failed to include a $1,000 fine in Dunn’s
sentence as required under Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2016).
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An appellate court always reserves the right to note plain error that was not complained of
at trial or on appeal. State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018). Plain error may be
found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in
damage to the integrity, reputation, and fairness of the judicial process. State v. Thompson, 301
Neb. 472, 919 N.W.2d 122 (2018). A sentence that is contrary to the court’s statutory authority is
an appropriate matter for plain error review. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558
(2016).
Section 60-6,197.03 provides the sentence for aggravated driving under the influence,
second offense, which, in relevant part, is as follows:
(5) If such person has had one prior conviction and, as part of the current violation,
had a concentration of fifteen-hundredths of one gram or more by weight of alcohol per
one hundred milliliters of his or her blood or fifteen-hundredths of one gram or more by
weight of alcohol per two hundred ten liters of his or her breath or refused to submit to a
test as required under section 60-6,197, such person shall be guilty of a Class I
misdemeanor, and the court shall, as part of the judgment of conviction, order payment of
a one-thousand-dollar fine and revoke the operator’s license of such person for a period of
at least eighteen months but not more than fifteen years from the date ordered by the court
and shall issue an order pursuant to section 60-6,197.01. . . . The court shall also sentence
such person to serve at least ninety days’ imprisonment in the city or county jail or an adult
correctional facility.
Dunn’s sentence does not include the $1,000 fine that § 60-6,197.03(5) requires. We,
therefore, modify his sentence to include it.
CONCLUSION
The district court did not err in denying Dunn’s motion to suppress; and in compliance with
§ 60-6,197.03(5), we modify Dunn’s sentence to include a $1,000 fine.
AFFIRMED AS MODIFIED.
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