State v. McCrickert ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/07/2017 09:08 AM CST
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
State of Nebraska, appellee, v.
Brian A. McCrickert, appellant.
___ N.W.2d ___
Filed February 7, 2017. No. A-15-1161.
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
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Investigative Stops: Motor Vehicles: Probable Cause. Traffic viola-
tions, no matter how minor, create probable cause to stop the driver of
a vehicle.
3. Constitutional Law: Search and Seizure: Motor Vehicles. In deter-
mining whether the government’s intrusion into a motorist’s Fourth
Amendment interests was reasonable, the question is not whether the
officer issued a citation for a traffic violation or whether the State ulti-
mately proved that violation.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. An officer’s stop of a vehicle is objectively reasonable
when the officer has probable cause to believe that a traffic violation
has occurred.
5. Probable Cause: Words and Phrases. Probable cause is a flexible,
commonsense standard that depends on the totality of the circumstances.
6. Probable Cause: Police Officers and Sheriffs. Probable cause is
not defeated because an officer incorrectly believes that a crime has
been or is being committed. But implicit in the probable cause stan-
dard is the requirement that a law enforcement officer’s mistakes be
reasonable.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
7. Probable Cause: Appeal and Error. An appellate court determines
whether probable cause existed under an objective standard of reason-
ableness, given the known facts and circumstances.
Appeal from the District Court for Seward County: James C.
Stecker, Judge. Affirmed.
William J. O’Brien for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Moore, Chief Judge, and Pirtle, Judge, and McCormack,
Retired Justice.
Pirtle, Judge.
INTRODUCTION
Brian A. McCrickert appeals from his conviction for pos-
session of marijuana, more than 1 pound, a Class IV felony.
He asserts the evidence obtained during a traffic stop should
have been suppressed because there was no probable cause to
initiate the stop. For the reasons that follow, we affirm.
BACKGROUND
On December 4, 2013, Sgt. Michael Vance of the Seward
County sheriff’s office was on duty and conducting traffic
control on Interstate 80. At approximately 7 p.m., Vance
observed a black vehicle traveling eastbound in the left-hand
lane, also known as the passing lane, traveling at a slower
speed. He observed two other vehicles using the “slow lane”
to pass the vehicle on the right. Vance activated his patrol
vehicle’s radar and determined the vehicle in the left-hand
lane was traveling at 66 miles per hour in a 75-mile-per-
hour zone.
Vance pulled up near the vehicle to let the driver know that
he was there and activated his patrol vehicle’s in-car camera.
Then Vance backed off so the driver could change lanes, but
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
the driver did not do so. Vance testified that he would have
moved on if the vehicle had moved into the right-hand lane.
At that point, Vance pulled into the left-hand lane behind the
vehicle and activated his patrol vehicle’s emergency lights to
conduct a traffic stop. Vance testified that he made the decision
to stop the vehicle because it was in violation of the Nebraska
Rules of the Road. He testified that even though the vehicle
was traveling under the speed limit, it was not a dangerous
speed. The driver was not driving below the minimum speed
allowed, nor above the maximum speed allowed. Vance stated
that drivers in the inside lane are supposed to maintain the
speed limit, because “[i]f you are causing cars to pass you in
the right lane, it’s called impeding traffic.”
There was one occupant in the vehicle, and his driver’s
license indicated he was McCrickert. Vance issued McCrickert
a warning for a traffic infraction. Vance searched the passen-
ger compartment of the vehicle with McCrickert’s consent and
found approximately 3 pounds of marijuana in the trunk.
McCrickert filed a motion to suppress the evidence citing
numerous grounds, including the assertion that the traffic stop
was unconstitutional. Vance testified at the suppression hear-
ing, and a DVD of the video captured by the in-car camera was
admitted as an exhibit. The video shows a white van approach-
ing McCrickert’s vehicle in the left lane and using the right
lane to pass.
The district court issued a “Memorandum Opinion” over-
ruling McCrickert’s motion to suppress on December 3, 2014.
The court noted Vance’s testimony that McCrickert violated
Neb. Rev. Stat. § 60-6,131(2) (Reissue 2010) for failing to
drive on the right half of the roadway and that the video
confirms McCrickert was driving in the left lane and was
not passing while he was driving in the left lane. The court
stated that a traffic violation, no matter how minor, creates
probable cause to stop the driver, and it concluded the traffic
stop of McCrickert’s vehicle was valid and not a violation of
his rights.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
On December 9, 2014, McCrickert filed a motion to
reconsider urging the court to reconsider the findings in the
order issued on December 3. The court granted McCrickert’s
motion to reconsider, but issued a memorandum opinion on
December 17, concluding that the stop was valid and not a
violation of McCrickert’s rights.
On March 31, 2015, the parties agreed to a stipulated bench
trial on the allegations in the amended information. The court
read McCrickert his rights, and McCrickert indicated that he
understood them. The court found that McCrickert knowingly,
voluntarily, and intelligently waived his rights to a prelimi-
nary hearing and to a jury trial. The defense requested that
the court reconsider the motion to suppress and the motion in
limine, and it was overruled.
The court found McCrickert guilty of count I of the amended
information: possession of marijuana, more than 1 pound, a
Class IV felony. On November 16, 2015, McCrickert was sen-
tenced to 28 days’ imprisonment and was given credit for the
28 days he had served. McCrickert was also ordered to pay a
$5,000 fine. McCrickert timely appealed.
ASSIGNMENT OF ERROR
McCrickert asserts the evidence obtained during the traffic
stop should have been suppressed because the State failed to
meet its burden to show there was probable cause or reason-
able suspicion to initiate the stop.
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. State v. Rolenc, ante p. 282, 885 N.W.2d
568 (2016).
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
ANALYSIS
McCrickert asserts there was no probable cause or reason-
able suspicion for Vance to initiate the traffic stop which led to
the discovery of marijuana in his vehicle; thus, he argues the
evidence should have been suppressed.
[2-4] Traffic violations, no matter how minor, create prob-
able cause to stop the driver of a vehicle. State v. Prescott, 280
Neb. 96, 784 N.W.2d 873 (2010). See State v. Sanders, 289
Neb. 335, 855 N.W.2d 350 (2014). In determining whether the
government’s intrusion into a motorist’s Fourth Amendment
interests was reasonable, the question is not whether the officer
issued a citation for a traffic violation or whether the State ulti-
mately proved that violation. State v. Prescott, supra. Instead,
an officer’s stop of a vehicle is objectively reasonable when the
officer has probable cause to believe that a traffic violation has
occurred. Id.
Vance testified that he pulled the vehicle over because it
was committing a traffic infraction. Vance testified that he
stopped McCrickert for “impeding traffic,” based upon his
visual observation that McCrickert’s vehicle was traveling in
the left-hand lane, at a speed slower than the speed limit, and
that as a result, other vehicles were forced to pass the vehicle
on the right-hand side.
McCrickert challenges the use of § 60-6,131 to determine
that there was probable cause to justify the traffic stop in
this case. He asserts § 60-6,131(1) is inapplicable because
it applies to “[divided] highways that are not divided into
separate roadways, as the Interstate is.” Reply brief for appel-
lant at 7. He refers to State v. Brouillette, 265 Neb. 214,
655 N.W.2d 876 (2014), in which the Nebraska Supreme
Court determined that, because the collision occurred on a
four-lane divided highway, a jury instruction based on Neb.
Rev. Stat. § 60-6,141 (Reissue 2010) rather than § 60-6,131
was appropriate.
He also asserts that the State relied on § 60-6,131(2) to
justify the stop, which would require proof McCrickert was
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STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
driving at “less than the normal speed of traffic,” and that the
State did not meet this burden. Therefore, he asserts there was
no legal basis for the traffic stop.
Section 60-6,131 requires vehicles to be driven on the right
side of the roadway except under certain circumstances; spe-
cifically, subsection (2) states:
Upon all roadways, any vehicle proceeding at less than
the normal speed of traffic at the time and place and
under the conditions then existing shall be driven in the
right-hand lane then available for traffic, or as close as
practicable to the right-hand curb or edge of the road-
way, except when overtaking and passing another vehicle
proceeding in the same direction or when preparing
for a left turn at an intersection or into a private road
or driveway.
In U.S. v. Guevara, 731 F.3d 824 (8th Cir. 2013), the U.S.
Court of Appeals for the Eighth Circuit considered a fac-
tual situation similar to this case and applied § 60-6,131. In
Guevara, the defendant was observed to be “driving in the left
lane and failing to move over to the right lane for faster mov-
ing cars.” 731 F.3d at 828. The Eighth Circuit determined that
there was probable cause to initiate a traffic stop for improp-
erly driving in the left lane of the Interstate. As noted by the
district court for Seward County in the case at hand, U.S. v.
Guevara, supra, is not controlling, but it is instructive in that
the Eighth Circuit found the same driving which is the subject
of this case to constitute probable cause, and it was sufficient
to justify a stop of that defendant’s vehicle.
[5,6] Even if § 60-6,131 does not, in fact, apply to inci-
dents occurring on divided roadways, such as the Interstate,
Vance still had probable cause to initiate the traffic stop of
McCrickert’s vehicle. In cases involving probable cause to
support a warrantless arrest, the Nebraska Supreme Court has
stated that probable cause is a flexible, commonsense stan-
dard that depends on the totality of the circumstances. State v.
Matit, 288 Neb. 163, 846 N.W.2d 232 (2014); State v. McCave,
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24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
282 Neb. 500, 805 N.W.2d 290 (2011). Probable cause is not
defeated because an officer incorrectly believes that a crime
has been or is being committed. Id. But implicit in the probable
cause standard is the requirement that a law enforcement offi-
cer’s mistakes be reasonable. Id. Given the apparent conflict
between Brouillette and Guevara, any potential mistake made
by Vance with regard to the applicability of § 60-6,131 would
be reasonable under these circumstances.
The Nebraska statutes also include a provision which states:
“No person shall drive a motor vehicle at such a slow speed
as to impede the normal and reasonable movement of traffic
except when reduced speed is necessary for safe operation
or in compliance with law.” Neb. Rev. Stat. § 60-6,193(1)
(Reissue 2010).
[7] It is not clear which statute Vance relied upon in initiat-
ing the stop of McCrickert’s vehicle. However, the Nebraska
Supreme Court has stated that an appellate court determines
whether probable cause existed under an objective standard of
reasonableness, given the known facts and circumstances. State
v. McCave, supra.
In this case, the evidence shows that Vance objectively
believed that a traffic violation had occurred, because he
observed McCrickert’s vehicle to be impeding the flow of traf-
fic on the roadway. Specifically, Vance observed McCrickert’s
vehicle driving in the left-hand lane, while other vehicles were
forced to pass McCrickert’s vehicle using the right-hand lane.
The video from Vance’s in-car camera shows at least one vehi-
cle, a white van, used the right-hand lane to pass McCrickert’s
vehicle. Vance’s report and testimony indicate McCrickert was
traveling 66 miles per hour in a 75-mile-per-hour zone. Vance
initiated a traffic stop and notified McCrickert that he would
receive a warning for impeding traffic. The evidence shows
that Vance had probable cause to believe that a traffic violation
had occurred, and this was sufficient to justify the initial stop
of McCrickert’s vehicle.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
STATE v. McCRICKERT
Cite as 24 Neb. Ct. App. 496
Thus, the stop was valid and not a violation of McCrickert’s
rights. The district court did not err in overruling McCrickert’s
motions to suppress which were based on the allegation that
the stop was initiated without probable cause.
CONCLUSION
A traffic violation, no matter how minor, creates probable
cause to stop the driver; thus, the traffic stop of McCrickert’s
vehicle was valid and not a violation of his constitutional
rights. For the reasons stated above, we affirm the decision of
the district court for Seward County in its entirety.
A ffirmed.