State v. Hoehn , 32 Neb. Ct. App. 446 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
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STATE V. HOEHN
Cite as 32 Neb. App. 446State of Nebraska, appellee, v.
Michael C. Hoehn, appellant.
___ N.W.2d ___
Filed December 5, 2023. No. A-22-885.
1. Criminal Law: Courts: Judgments: Appeal and Error. In an appeal
of a criminal case from the county court, the district court acts as an
intermediate court of appeals, and its review is limited to an examina-
tion of the record for error or abuse of discretion. Both the district court
and a higher appellate court generally review appeals from the county
court for error appearing on the record. When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry is whether
the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
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 Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the
lower court.
4. ____: ____. Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
5. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
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Cite as 32 Neb. App. 446intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
6. ____: ____: ____. In order for a court to inquire into a statute’s legisla-
tive history, that statute in question must be open to construction, and a
statute is open to construction when its terms require interpretation or
may reasonably be considered ambiguous.
7. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
8. Statutes: Appeal and Error. To give effect to all parts of a statute, an
appellate court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible, and will avoid rejecting as super-
fluous or meaningless any word, clause, or sentence.
9. Words and Phrases. Under the ejusdem generis canon of construc-
tion, when a general word or phrase follows a list of specific persons
or things, the general word or phrase will be interpreted to include only
persons or things of the same type as those listed.
10. ____. Under the ejusdem generis canon of construction, specific terms
modify and restrict the interpretation of general terms when they are
used in a sequence.
11. 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.
12. Investigative Stops: Motor Vehicles: Probable Cause. Traffic viola-
tions, no matter how minor, create probable cause to stop the driver of
a vehicle.
13. Search and Seizure: Evidence. The exclusionary rule is not found
in the federal or state Constitution, but is a prudential doctrine to
be employed where the deterrence benefits of suppression outweigh
its costs.
14. Police Officers and Sheriffs: Probable Cause. Police officers are not
required to be legal scholars, but implicit in the probable cause standard
is the requirement that a police officer’s mistakes be reasonable.
15. Constitutional Law: Search and Seizure. 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.
16. Constitutional Law: Search and Seizure: States. The Fourth
Amendment’s protections are implicated whenever state action intrudes
on a citizen’s reasonable expectation of privacy.
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Cite as 32 Neb. App. 44617. Constitutional Law: Search and Seizure. Legitimation of expectations
of privacy by law must have a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society.
18. ____: ____. The analysis of whether the violation of a state law restrict-
ing searches is sufficient to show a Fourth Amendment violation turns
on whether society recognizes an expectation of privacy deserving of the
most scrupulous protection from government invasion.
19. Judgments: Appeal and Error. When the record demonstrates that the
decision of the trial court is correct, although such correctness is based
on different grounds from those assigned by the trial court, an appellate
court will affirm.
Appeal from the District Court for Scotts Bluff County,
Andrea D. Miller, Judge, on appeal thereto from the
County Court for Scotts Bluff County, Kris D. Mickey, Judge.
Judgment of District Court affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, Austin N. Relph, and
Braden Dvorak, Senior Certified Law Student, for appellee.
Bishop, Arterburn, and Welch, Judges.
Welch, Judge.
INTRODUCTION
Michael C. Hoehn appeals the Scotts Bluff County District
Court’s order affirming his conviction of driving under the
influence. He contends that the district court erred in finding
that the county court properly overruled his motion to sup-
press. For the reasons set forth herein, we affirm the decision
of the district court, which affirmed the county court’s order
overruling Hoehn’s motion to suppress.
STATEMENT OF FACTS
Facts Leading to Arrest
On May 24, 2021, following a citizen report of a white
pickup that “was all over the roadway,” which roadway was
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Cite as 32 Neb. App. 446located outside of the city limits of Minatare, Nebraska, police
officer Matt Rockwell left the city limits to investigate. After
crossing the city line, Officer Rockwell observed a white
pickup making a wide turn, straddling the centerline, and
driving into the median, while the occupant threw cans out
of the driver’s-side window. Officer Rockwell stopped the
pickup, which was being driven by Hoehn. Following the stop,
which occurred outside the city limits of Minatare but within
Scotts Bluff County, Officer Rockwell arrested Hoehn. Hoehn
was subsequently charged in Scotts Bluff County Court with
first offense driving under the influence with a blood alcohol
content of .15 or more, a Class W misdemeanor. The charge
was subsequently amended to first offense driving under the
influence with a blood alcohol content of .08 or more, also
a Class W misdemeanor. See Neb. Rev. Stat. § 60-6,196
(Reissue 2021).
Motion to Suppress
Hoehn filed a motion to suppress “all fruits of the illegal
search and seizure, and his subsequent arrest.” Hoehn specifi-
cally argued during the suppression hearing that there was an
insufficient showing that Officer Rockwell was authorized
to make the stop in violation of his rights under the 4th and
14th Amendments to the U.S. Constitution; article I, §§ 1, 3,
and 7, of the Nebraska Constitution; and any and all relevant
Nebraska Revised Statutes.
During the suppression hearing, the State’s sole witness was
Officer Rockwell. Officer Rockwell described the events that
occurred on May 24, 2021, that led to Hoehn’s arrest. Officer
Rockwell testified that he received a radio dispatch that a
citizen had reported following a white pickup heading “north
on the 79E Link Highway that was all over the roadway.”
Officer Rockwell responded to that dispatch, and upon arriv-
ing at the described location, he observed “a white pickup . . .
making a wide turn.” As the pickup turned, Officer Rockwell
observed “what appeared to be a beer can, a pop can, something
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Cite as 32 Neb. App. 446like that come out of the driver’s window.” According to
Officer Rockwell, the pickup “was straddling . . . the center
line closest to the grass median” heading east on the highway.
Officer Rockwell turned on his vehicle’s patrol lights and fol-
lowed the pickup. According to Officer Rockwell,
right before [the pickup] got . . . back to Minatare there’s
a turnaround that you can make in the four-lane [high-
way]. And the pickup was turning. And there was some
oncoming traffic. [The pickup] made a turn right in front
of a car, and I thought there was going to be an accident,
and then [the pickup made] a quick turn then right down
into the grass median. . . .
During this turnaround, Officer Rockwell observed another
can being thrown out of the window of the pickup. The driver,
who was heading west, “accelerated really hard because [the
pickup] was digging in with both back tires into the grass,
throwing grass and dirt . . . up away from the pickup a long
ways. [The pickup] had pulled back onto the highway and
accelerated rapidly.” Officer Rockwell continued following
the pickup, which “turned . . . went as far as the 79E Link
again, turned south and went just a short little ways and then
pulled right over to the right side of the road and stopped.”
Officer Rockwell identified the driver as Hoehn and noted
that Hoehn’s speech was slurred and that he had “bloodshot,
watery eyes.” Officer Rockwell stated he “could smell a strong
odor of an alcoholic beverage coming out of the vehicle.”
Since Officer Rockwell did not have a working in-car video
camera and did not have a body camera, he waited for another
deputy to arrive, who had an in-car patrol video camera and
body camera, to have Hoehn perform field sobriety tests. The
events that transpired from that point on were captured by
the other deputy’s in-car video camera and his body camera.
Officer Rockwell testified that all of the events occurred in
Scotts Bluff County.
Following the suppression hearing, the county court denied
Hoehn’s motion to suppress from the bench stating that
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Cite as 32 Neb. App. 446the [S]tate had proper authority to make a traffic stop
upon observing the driving through the median, the tak-
ing the wide turn, the driving across the center line next
to the median. The odor of alcoholic beverage, his speech
being slurred, his eyes [were] bloodshot and watery, his
inability to complete the field sobriety tests, observed
dropping his phone and falling over behind the pickup,
as well as the preliminary breath test that was adminis-
tered, I find there was sufficient probable cause . . . for
the arrest.
The court’s written journal entry stated that “[a] careful exami-
nation of the evidence concerning the stop and arrest of
[Hoehn] shows the motion to suppress is without merit. There
was sufficient evidence justifying the traffic stop, and the arrest
is supported by ample evidence of probable cause.”
Stipulated Trial and Sentencing
A stipulated bench trial was held in October 2021 on
the evidence presented during the suppression hearing, with
Hoehn preserving the issues raised in his motion to suppress.
The parties also stipulated that Hoehn’s blood draw was done
in compliance with the applicable administrative code provi-
sions and the test result was .245. The county court found
Hoehn guilty of the charged offense and sentenced Hoehn to
12 months’ probation, 40 hours of community service, a $500
fine, and a 60-day license revocation, along with an order
authorizing an ignition interlock permit.
Appeal to District Court
Following his sentencing, Hoehn timely appealed to the
Scotts Bluff County District Court, contending that the
county court erred, inter alia, in overruling his motion to sup-
press. Hoehn challenged Officer Rockwell’s authority to stop
Hoehn outside of his primary jurisdiction, i.e., the city limits
of Minatare.
The district court determined that the county court prop-
erly denied Hoehn’s motion to suppress and affirmed his
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Cite as 32 Neb. App. 446conviction. Although the district court noted that there was no
dispute that Officer Rockwell was outside the Minatare city
limits when the stop took place, the court found:
Officer Rockwell had probable cause to believe . . .
Hoehn was operating a motor vehicle while under the
influence of alcoholic liquor sufficient to initiate a stop
of the vehicle. The citizen report from dispatch regard-
ing the vehicle being all over the road, observation of
throwing a can out [of] the window on two separate
occasions, along with the erratic driving observed by the
officer create[d] probable cause in this case to believe
the crime of driving while under the influence was com-
mitted and thus stop the vehicle.
Relying on Neb. Rev. Stat § 29-215(3)(c) (Reissue 2016), the
district court found:
Here Officer Rockwell made a stop outside the city of
Minatare limits with a suspected driver under the influ-
ence of alcohol operating the motor vehicle. The stop
was directly and solely related to enforcing the laws that
concern a person operating or being in the actual physical
control of any motor vehicle. The motion to suppress was
thus properly overruled.
Hoehn has timely appealed to this court.
ASSIGNMENTS OF ERROR
Hoehn contends that the district court erred in finding that
the county court properly overruled his motion to suppress.
Specifically, Hoehn contends that (1) Officer Rockwell could
not leave his jurisdiction without probable cause pursuant
to § 29-215(3)(c); (2) probable cause did not exist to stop
Hoehn’s pickup; (3) the radio dispatch was not from a citi-
zen informant, but instead was an uncorroborated anonymous
call; and (4) erratic driving and a can being thrown from the
driver’s-side window was not probable cause to believe a per-
son was driving under the influence.
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STATE V. HOEHN
Cite as 32 Neb. App. 446STANDARD OF REVIEW
[1] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Johnson, 310 Neb. 527, 967
N.W.2d 242 (2021). Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.[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. State
v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022). Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error, but whether those facts trigger or vio-
late Fourth Amendment protections is a question of law that
an appellate court reviews independently of the trial court’s
determination. State v. Drake, supra.[3] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court.
State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023).
ANALYSIS
Lawfulness of Stop
We first address Hoehn’s claim that the district court erred
in affirming the county court’s denial of his motion to sup-
press on the basis that Officer Rockwell had no authority to
leave his jurisdiction prior to developing probable cause to
further investigate Hoehn. Hoehn argues that “[i]f an officer
is allowed to leave his jurisdiction under . . . §29-215(3), the
officer must have probable cause before leaving.” Brief for
appellant at 10. He contends that because Officer Rockwell
did not have probable cause that Hoehn was operating his
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Cite as 32 Neb. App. 446vehicle while under the influence prior to leaving the offi-
cer’s primary jurisdiction, the stop and arrest of Hoehn
was unlawful.
The State disagrees. The State argues that “the plain lan-
guage of § 29-215(3) does not require probable cause to exist
before leaving the jurisdiction[;] it only requires that probable
cause exist before taking action with respect to the individual
involved.” Brief for appellee at 11 (emphasis in original). The
State further argues that “if probable cause exists to believe an
individual is operating a motor vehicle while under the influ-
ence, law enforcement has the authority to stop the individual
and enforce the law, even outside of the officer’s primary
jurisdiction.” Brief for appellee at 10. As applied to the instant
case, the State contends that because Officer Rockwell had
probable cause to believe that Hoehn was operating his vehicle
in violation of driving under the influence laws prior to the
stop of Hoehn, Officer Rockwell had the authority to stop
Hoehn under § 29-215(3)(c).
[4-6] In considering the parties’ arguments concerning the
interpretation of § 29-215(3)(c), we apply familiar principles
of statutory interpretation that the Nebraska Supreme Court
set forth in Heist v. Nebraska Dept. of Corr. Servs., 312 Neb.
480, 492, 979 N.W.2d 772, 782-83 (2022):
First, statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. Second, com-
ponents of a series or collection of statutes pertaining to
a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are
consistent, harmonious, and sensible.
Ordinarily, we look no further than the text. In order
for a court to inquire into a statute’s legislative history,
that statute in question must be open to construction,
and a statute is open to construction when its terms
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Cite as 32 Neb. App. 446require interpretation or may reasonably be considered
ambiguous.
[7,8] In performing that analysis, the Nebraska Supreme
Court held in Angel v. Nebraska Dept. of Nat. Resources, 314
Neb. 1, 12, 988 N.W.2d 507, 516 (2023):
It is not within the province of a court to read a mean-
ing into a statute that is not warranted by the language;
neither is it within the province of a court to read any-
thing plain, direct, or unambiguous out of a statute. To
give effect to all parts of a statute, an appellate court
will attempt to reconcile different provisions so they
are consistent, harmonious, and sensible, and will avoid
rejecting as superfluous or meaningless any word, clause,
or sentence.
The issue requires us to examine the full jurisdictional
authority of law enforcement officers in this state. The autho-
rizing statute is found at § 29-215 and provides, in perti-
nent part:
(1) A law enforcement officer has the power and author-
ity to enforce the laws of this state and of the political
subdivision which employs the law enforcement officer or
otherwise perform the functions of that office anywhere
within his or her primary jurisdiction.
(2) Any law enforcement officer who is within this
state, but beyond his or her primary jurisdiction, has the
power and authority to enforce the laws of this state or
any legal ordinance of any city or incorporated village
or otherwise perform the functions of his or her office,
including the authority to arrest and detain suspects, as if
enforcing the laws or performing the functions within his
or her primary jurisdiction in the following cases:
(a) Any such law enforcement officer, if in a fresh
attempt to apprehend a person suspected of committing
a felony, may follow such person into any other jurisdic-
tion in this state and there arrest and detain such person
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Cite as 32 Neb. App. 446and return such person to the law enforcement officer’s
primary jurisdiction;
(b) Any such law enforcement officer, if in a fresh
attempt to apprehend a person suspected of committing
a misdemeanor or a traffic infraction, may follow such
person anywhere in an area within twenty-five miles of
the boundaries of the law enforcement officer’s primary
jurisdiction and there arrest and detain such person and
return such person to the law enforcement officer’s pri-
mary jurisdiction;
(c) Any such law enforcement officer shall have such
enforcement and arrest and detention authority when
responding to a call in which a local, state, or federal
law enforcement officer is in need of assistance. A law
enforcement officer in need of assistance shall mean
(i) a law enforcement officer whose life is in danger
or (ii) a law enforcement officer who needs assistance
in making an arrest and the suspect (A) will not be
apprehended unless immediately arrested, (B) may cause
injury to himself or herself or others or damage to prop-
erty unless immediately arrested, or (C) may destroy or
conceal evidence of the commission of a crime; and
(d) Any municipality or county may, under the pro-
visions of the Interlocal Cooperation Act or the Joint
Public Agency Act, enter into a contract with any other
municipality or county for law enforcement services or
joint law enforcement services. Under such an agreement,
law enforcement personnel may have such enforcement
authority within the jurisdiction of each of the participat-
ing political subdivisions if provided for in the agree-
ment. Unless otherwise provided in the agreement, each
participating political subdivision shall provide liability
insurance coverage for its own law enforcement personnel
as provided in section 13-1802.
(3) When probable cause exists to believe that a
person is operating or in the actual physical control of
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Cite as 32 Neb. App. 446any motor vehicle, motorboat, personal watercraft, or
aircraft while under the influence of alcoholic liquor
or of any drug or otherwise in violation of section
28-1465, 28-1466, 28-1472, 37-1254.01, 37-1254.02,
60-4,163, 60-4,164, 60-6,196, 60-6,197, 60-6,211.01, or
60-6,211.02, the law enforcement officer has the power
and authority to do any of the following or any combina-
tion thereof:
(a) Transport such person to a facility outside of the
law enforcement officer’s primary jurisdiction for appro-
priate chemical testing of the person;
(b) Administer outside of the law enforcement officer’s
primary jurisdiction any post-arrest test advisement to the
person; or
(c) With respect to such person, perform other proce-
dures or functions outside of the law enforcement officer’s
primary jurisdiction which are directly and solely related
to enforcing the laws that concern a person operating or
being in the actual physical control of any motor vehicle,
motorboat, personal watercraft, or aircraft while under the
influence of alcoholic liquor or of any other drug or oth-
erwise in violation of section 28-1465, 28-1466, 28-1472,
37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 60-6,196,
60-6,197, 60-6,211.01, or 60-6,211.02.
Subsection (1) provides the general scope of an officer’s
power and authority to enforce the laws of this state and the
political subdivision that employs the officer. It provides
that a law enforcement officer has the power and authority
to enforce the laws of this state and the political subdivision
that employs the officer, or otherwise perform the functions
of that office, anywhere within his or her primary jurisdiction.
Primary jurisdiction is defined in subsection § 29-215(4)(b)
as “the geographic area within the territorial limits of the
state or political subdivision which employs the law enforce-
ment officer.” We will refer to the officer’s full power and
authority as the officer’s plenary powers. Without more, an
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Cite as 32 Neb. App. 446officer’s plenary powers are limited to that officer’s pri-
mary jurisdiction.
But § 29-215(2) and (3) provide additions to the officer’s
primary jurisdictional authority. Subsection (2) provides that an
officer who is within the state, but beyond the officer’s primary
jurisdiction, has plenary powers, including the authority to
arrest and detain, as if performing the functions in the officer’s
primary jurisdiction in certain limited circumstances. These
are described in subsections (2)(a) through (d). These excep-
tions have been generally described by this court as follows:
subsection (2)(a)—the fresh pursuit of a person suspected of
committing a felony; subsection (2)(b)—the fresh pursuit of a
person suspected of committing a misdemeanor or traffic vio-
lation; and subsection (2)(c)—response to a call for assistance
by another officer. See State v. Connick, 5 Neb. App. 176, 557
N.W.2d 713 (1996). Subsequently, § 29-215(2) was amended
to add subsection (d), which provides for a municipality or
county to enter into a contract with any other municipality or
county under the Interlocal Cooperation Act or the Joint Public
Agency Act for law enforcement services or joint law enforce-
ment services for services provided in the agreement. Neither
party suggests that any of the subsection (2) extraterritorial
grants of authority apply in the case at bar.
Instead, both parties cite to the extraterritorial exception
found in § 29-215(3), but then disagree about the subsection’s
meaning. Unlike subsection (2), § 29-215(3) provides:
When probable cause exists to believe that a person is
operating or in the actual physical control of any motor
vehicle . . . while under the influence of alcoholic liquor
or of any drug . . . the law enforcement officer has the
power and authority to do any of the following or any
combination thereof:
(a) Transport such person to a facility outside of the
law enforcement officer’s primary jurisdiction for appro-
priate chemical testing of the person;
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Cite as 32 Neb. App. 446(b) Administer outside of the law enforcement officer’s
primary jurisdiction any post-arrest test advisement to the
person; or
(c) With respect to such person, perform other proce-
dures or functions outside of the law enforcement offi-
cer’s primary jurisdiction which are directly and solely
related to enforcing the laws that concern a person oper-
ating or being in the actual physical control of any motor
vehicle . . . while under the influence of alcoholic liquor
or of any other drug . . . .
(Emphasis supplied.) As such, when an officer has probable
cause to believe a person is operating a vehicle while under
the influence, the powers of an officer outside of the officer’s
jurisdiction are limited to transporting for chemical testing,
administering post-arrest test advisements, and “perform[ing]
other procedures or functions outside of the law enforce-
ment officer’s primary jurisdiction which are directly and
solely related to enforcing the laws that concern a person
operating or being in the actual physical control of any motor
vehicle” while under the influence of drugs or alcohol. See
§ 29-215(3).
The State would have us read § 29-215(3)(c) as a general
grant of plenary authority granting officers full power and
authority to enforce the laws of the state regarding driving
under the influence offenses, including detention and arrest,
outside of the officer’s primary jurisdiction so long as the offi-
cer’s actions are supported by probable cause. Hoehn would
have us read § 29-215(3)(c) as a general grant of plenary
authority so long as probable cause is first developed within
the officer’s primary jurisdiction before continuing the offi-
cer’s investigation. After reviewing the entirety of the language
of § 29-215, we reject both interpretations.
As to the State’s suggestion that § 29-215(3)(c) grants
primary jurisdictional authority, including the power to arrest
and detain, any time probable cause exists to believe a per-
son is driving under the influence anywhere, we find that the
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Cite as 32 Neb. App. 446State’s proposed interpretation would not give effect to the
language of the statute as it was constructed.
[9,10] In Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428,
445-46, 771 N.W.2d 103, 118-19 (2009), in analyzing a statu-
tory canon of construction, the Nebraska Supreme Court held:
[U]nder the ejusdem generis canon of construction, when
a general word or phrase follows a list of specific persons
or things, the general word or phrase will be interpreted
to include only persons or things of the same type as
those listed. In other words, specific terms modify and
restrict the interpretation of general terms when they are
used in a sequence.
Here, unlike § 29-215(1) and (2), which provides officers
with full plenary authority to “enforce the laws of this state”
within its jurisdictional or extra-jurisdictional territories as
defined, § 29-215(3) provides:
When probable cause exists to believe that a person is
operating or in the actual physical control of any motor
vehicle . . . while under the influence of alcoholic liquor
or of any drug . . . the law enforcement officer has the
power and authority to do any of the following or any
combination thereof . . . .
(Emphasis supplied.) Section 29-215(3) then lists the following
restrictive power and authority the following order:
(a) Transport such person to a facility outside of the
law enforcement officer’s primary jurisdiction for appro-
priate chemical testing of the person;
(b) Administer outside of the law enforcement officer’s
primary jurisdiction any post-arrest test advisement to the
person; or
(c) With respect to such person, perform other proce-
dures or functions outside of the law enforcement offi-
cer’s primary jurisdiction which are directly and solely
related to enforcing the laws that concern a person
operating or being in the actual physical control of any
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Cite as 32 Neb. App. 446motor vehicle . . . while under the influence of alcoholic
liquor or of any other drug . . . .
The State would have us read § 29-215(3)(c) as a broad
grant of authority that includes full officer enforcement pow-
ers, including the powers to arrest and detain, even though
this grant of power follows the more specific and limiting
powers set forth in § 29-215(3)(a) and (b). Applying the
ejusdem generis canon of construction, we read the general
language in subsection (3)(c) as a grant of power of the same
limiting type set forth in both subsections (3)(a) and (3)(b).
That is, we see the language in subsection (3)(c) as grant-
ing other procedural-type powers relating to enforcing laws
outside the officer’s primary jurisdiction incident to an arrest
or detention for which the officer had jurisdictional authority
to arrest or detain under § 29-215(1) or (2). Accordingly, we
find that § 29-215(3) does not provide an officer with plenary
powers to arrest or detain an individual outside of the offi-
cer’s primary jurisdiction even where probable cause exists
to believe a person is operating a motor vehicle while under
the influence of alcohol or drugs in another jurisdiction. To
the contrary, under its explicit terms, § 29-215(3) provides
officers with limited powers to perform functions in another
jurisdiction when probable cause exists in connection with a
jurisdictional stop and arrest.
The concurrence urges: “If the majority’s interpretation of
the statute stands, particularly now that § 29-215(3) has been
construed, law enforcement would be constrained from inter-
vening in potentially dangerous situations involving drivers
under the influence of alcohol or drugs merely because the
dangerous situation was taking place outside the officer’s pri-
mary jurisdiction.” Although that expression may serve as an
aid for future legislative policy, we are confined to interpret
the language of the statute as it is currently written.
Because the evidence demonstrates that Officer Rockwell’s
investigation and stop occurred outside of his jurisdiction and
there was no evidence of a § 29-215(2) extraterritorial right
to extend full plenary powers to Officer Rockwell outside
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Cite as 32 Neb. App. 446his jurisdiction, his investigation, stop, and arrest of Hoehn
was conducted without jurisdictional authority.
Probable Cause
Hoehn next argues that Officer Rockwell did not have prob-
able cause to conduct a stop of his vehicle.
[11,12] An officer’s stop of a vehicle is objectively reason-
able when the officer has probable cause to believe that a
traffic violation has occurred. State v. Draganescu, 276 Neb.
448, 755 N.W.2d 57 (2008). Traffic violations, no matter how
minor, create probable cause to stop the driver of a vehicle. Id.Here, prior to the stop of Hoehn’s pickup, Officer Rockwell
had received information from dispatch of a report that a
white pickup heading north on the 79E Link Highway “was
all over the roadway.” Although Hoehn argues that the call
should be considered to be an uncorroborated anonymous
call, not a citizen informant, we find that the distinction is
not determinative in this case. Even if the call was considered
to be an uncorroborated anonymous call, after receiving that
information, Officer Rockwell observed Hoehn’s white pickup
being driven erratically, including making a wide turn, strad-
dling the centerline, and driving into the median, and he saw
the occupant throw one or two cans out of the driver’s-side
window. Based upon these observed traffic violations, Officer
Rockwell had probable cause to conduct a stop of Hoehn’s
pickup. However, even though Officer Rockwell had prob-
able cause to stop Hoehn’s pickup, because we determined
that Officer Rockwell lacked jurisdiction to conduct the stop,
we must determine whether the exclusionary rule requires the
suppression of the evidence obtained as a result of the stop,
detainment, and arrest of Hoehn.
Application of Exclusionary Rule
Having determined that Officer Rockwell’s actions were
carried out without jurisdictional authority, we must now
examine the applicability of the exclusionary rule that was
addressed by both parties during oral argument.
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Cite as 32 Neb. App. 446[13,14] In State v. Albarenga, 313 Neb. 72, 90-91, 982
N.W.2d 799, 814 (2022), the Nebraska Supreme Court stated:
The Fourth Amendment to the U.S. Constitution guar-
antees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures . . . ,” as does article I, § 7, of the
Nebraska Constitution. The exclusionary rule is not found
in the federal or state Constitution, but is a prudential
doctrine to be employed where the deterrence benefits of
suppression outweigh its costs. When the police exhibit
deliberate, reckless, or grossly negligent disregard for
Fourth Amendment rights, the deterrent value of exclu-
sion is strong and tends to outweigh the resulting costs.
On the other hand, when the police act with an objec-
tively reasonable good faith belief that their conduct is
lawful or when their conduct involves only simple, iso-
lated negligence, the deterrent value is weak and tends
not to outweigh the resulting costs.
. . . . Police officers are not required to be legal schol-
ars, but implicit in the probable cause standard is the
requirement that a police officer’s mistakes be reasonable.
[15-17] Before examining the application of the exclusion-
ary rule, we first pause to note that it is a prudential doctrine
developed to deter police conduct when such police conduct
“exhibit[s] deliberate, reckless, or grossly negligent disregard
for Fourth Amendment rights.” State v. Albarenga, 313 Neb.
at 91, 982 N.W.2d at 814. See Davis v. United States, 564
U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). As the
Nebraska Supreme Court held in State v. Knutson, 288 Neb.
823, 835, 852 N.W.2d 307, 319 (2014):
The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect indi-
viduals against unreasonable searches and seizures by the
government. . . .
The Fourth Amendment’s protections are implicated
whenever state action intrudes on a citizen’s reasonable
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Cite as 32 Neb. App. 446expectation of privacy. “‘Legitimation of expectations of
privacy by law must have a source outside of the Fourth
Amendment, either by reference to concepts of real or
personal property law or to understandings that are recog-
nized and permitted by society.’”
[18] In considering application of the exclusionary rule,
the State urges us to consider the Nebraska Supreme Court’s
holding in Knutson, wherein the court found that the particular
violation of state law restricting searches involved in Knutson
was insufficient to show a Fourth Amendment violation. The
State argues that because Officer Rockwell’s misunderstand-
ing of § 29-215(c)(3) simply constitutes a violation of state
law restricting jurisdiction, its violation alone is insufficient
to constitute a Fourth Amendment violation thereby invok-
ing the protections of the exclusionary rule. We disagree. As
the Nebraska Supreme Court noted in Knutson, “The analysis
turns on whether society recognizes an expectation of privacy
deserving of “‘“the most scrupulous protection from govern-
ment invasion.”’” 288 Neb. at 838, 852 N.W.2d at 320-21,
quoting California v. Greenwood, 486 U.S. 35, 108 S. Ct.
1625, 100 L. Ed. 2d 30 (1988). Thus, the question becomes
whether a violation of this jurisdictional statute touches upon
a societal expectation of privacy deserving of the most scrupu-
lous protection from government invasion.
In assessing the application of a jurisdictional violation by
an officer who conducted a stop in violation of the jurisdic-
tional mandates of § 29-215, the Nebraska Supreme Court
held, in State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999),
that such a violation did warrant application of the exclu-
sionary rule under certain circumstances. Without analysis
regarding the interplay between a statutory jurisdictional vio-
lation under § 29-215 and the Fourth Amendment to the U.S.
Constitution, the Nebraska Supreme Court held:
Having concluded that the actions of the . . . police
officers were unlawful, we find the evidence obtained
by [the sheriff] was the fruit of an illegal search or
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Cite as 32 Neb. App. 446seizure, in violation of the Fourth Amendment to the
U.S. Constitution and article I, § 7, of the Nebraska
Constitution, is inadmissible in a state prosecution, and
must be excluded. See State v. Tingle, 239 Neb. 558, 477
N.W.2d 544 (1991), citing State v. O’Kelly, 175 Neb. 798,
124 N.W.2d 211 (1963), cert. denied 376 U.S. 956, 84 S.
Ct. 978, 11 L. Ed. 2d 975 (1964). After concluding that
the . . . police officers were without authority to make
the stop and arrest, we hold that [the defendant’s] arrest
was unlawful and that the trial court was clearly wrong
in not suppressing all evidence obtained pursuant to the
illegal actions.
State v. Cuny, 257 Neb. at 173-74, 595 N.W.2d at 903.
We reach a similar conclusion here that this statutory juris-
diction violation does implicate the Fourth Amendment. We
recognize, as does the concurring opinion, that case law exists
that holds that certain statutory violations do not also consti-
tute violations of an individual’s Fourth Amendment rights.
However, the facts of this case most closely reflect those found
in State v. Cuny, supra. As such, we find no sufficient basis
upon which we can reach an outcome inconsistent with the
Nebraska Supreme Court’s decision in that case. This requires
that we now examine whether the exclusionary rule should
be applied.
Although we have found that Officer Rockwell’s actions
were conducted without jurisdictional authority, we also
acknowledge that prior to the stop herein, § 29-215(3) had
not been construed by any Nebraska appellate court and that
Officer Rockwell could have reasonably believed that he had
jurisdictional authority to stop and arrest Hoehn. We further
note that Officer Rockwell’s actions were not deliberate, reck-
less, or in grossly negligent disregard for Fourth Amendment
rights. The culpability standard used in describing the requi-
site conduct necessary to apply the exclusionary rule is simply
not present in this case. See State v. Bray, 297 Neb. 916, 902
N.W.2d 98 (2017) (exclusionary rule is applicable only where
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Cite as 32 Neb. App. 446its deterrence benefits outweigh substantial social costs). To
the contrary, the record reveals that Officer Rockwell detained
Hoehn after observing Hoehn operating his vehicle in a dan-
gerous manner, which observation provided the officer with
probable cause to stop the vehicle subject to jurisdictional
authority under a rule of law that had not previously been
interpreted by a Nebraska appellate court. Under these limited
circumstances, we decline to apply the exclusionary rule in
this case.
[19] We have found that although the stop, detainment, and
arrest of Hoehn violated his constitutional rights, the facts did
not support application of the exclusionary rule in this case.
Because we find that Officer Rockwell had probable cause
before stopping Hoehn and that his conduct did not rise to the
level of a deliberate, reckless, or grossly negligent disregard
for Hoehn’s Fourth Amendment rights, the deterrence benefits
of suppression do not outweigh the costs and therefore appli-
cation of the exclusionary rule is not warranted. Despite the
fact that our reasoning differs from that of the district court,
when the record demonstrates that the decision of the trial
court is correct, although such correctness is based on differ-
ent grounds from those assigned by the trial court, an appel-
late court will affirm. See State v. Pauly, 311 Neb. 418, 972
N.W.2d 907 (2022).
CONCLUSION
In sum, although Officer Rockwell lacked jurisdiction to
conduct the stop and to detain and arrest Hoehn, we find
that the facts in this case do not support application of the
exclusionary rule. Accordingly, we affirm Hoehn’s conviction
and sentence.
Affirmed.
Bishop, Judge, concurring.
I agree with the majority’s decision to affirm Michael C.
Hoehn’s conviction and sentence. I write separately because I
disagree with its interpretation of Neb. Rev. Stat. § 29-215(3)(c)
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Cite as 32 Neb. App. 446(Reissue 2016). Like the Scotts Bluff County District Court, I
read the statute to provide law enforcement officers the power
and authority to “perform other procedures or functions outside
of the law enforcement officer’s primary jurisdiction” when
they are “directly and solely related to enforcing the laws that
concern a person operating . . . any motor vehicle, . . . while
under the influence of alcoholic liquor or of any other drug”
when “probable cause exists” to believe that is the situation.
See id.In affirming the county court’s order denying Hoehn’s
motion to suppress, the district court’s November 6, 2022,
order stated:
[Hoehn] claims Officer Rockwell did not have juris-
diction to perform the initial stop. This Court disagrees.
Officer Rockwell had probable cause to believe . . .
Hoehn was operating a motor vehicle while under the
influence of alcoholic liquor sufficient to initiate a stop of
the vehicle. The citizen report from dispatch regarding the
vehicle being all over the road, observation of throwing
a can out the window on two separate occasions, along
with the erratic driving observed by the officer create
probable cause in this case to believe the crime of driving
while under the influence was committed and thus stop
the vehicle.
Where probable cause exists, officers are allowed
to perform other procedures or functions outside of
the law enforcement officer’s primary jurisdiction which
are directly and solely related to enforcing the laws
that concern a person operating or being in the actual
physical control of any motor vehicle. [§] 29-215(3)(c).
Here Officer Rockwell made a stop outside the city of
Minatare limits with a suspected driver under the influ-
ence of alcohol operating the motor vehicle. The stop
was directly and solely related to enforcing the laws
that concern a person operating or being in the actual
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Cite as 32 Neb. App. 446physical control of any motor vehicle. The motion to
suppress was thus properly overruled.
I agree with the district court’s determination that when prob-
able cause exists that a person is operating a motor vehicle
while under the influence of alcohol, § 29-215(3)(c) authorizes
law enforcement to stop the vehicle even when probable cause
occurs outside the officer’s primary jurisdiction.
The majority determines, however, that § 29-215(3)(c) does
not authorize law enforcement “to arrest or detain an indi-
vidual outside of the officer’s primary jurisdiction even where
probable cause exists to believe a person is operating a motor
vehicle while under the influence of alcohol or drugs in another
jurisdiction.” Therefore, the majority concludes that Officer
Rockwell’s “investigation, stop, and arrest of Hoehn was con-
ducted without jurisdictional authority,” and as a result, it was
necessary to examine the applicability of the exclusionary
rule. The majority declined to apply the exclusionary rule in
this instance because Ҥ 29-215(3) had not been construed by
any Nebraska appellate court” and Officer Rockwell’s “actions
were not deliberate, reckless, or in grossly negligent disregard
for Fourth Amendment rights.”
If the majority’s interpretation of the statute stands, particu-
larly now that § 29-215(3) has been construed, law enforce-
ment would be constrained from intervening in potentially
dangerous situations involving drivers under the influence of
alcohol or drugs merely because the dangerous situation was
taking place outside the officer’s primary jurisdiction. Upon
personally witnessing such situations, an officer outside the
officer’s primary jurisdiction will be placed in the difficult
position of having to decide whether to intervene, knowing
that evidence of unlawful activity may be suppressed, or,
alternatively, to not intervene and wait for a law enforcement
officer with primary jurisdiction to arrive. Waiting increases
the risk of injury to the driver and the general public; this
seems contrary to any possible legislative intent. When con-
struing a statute, a court must determine and give effect to the
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Cite as 32 Neb. App. 446purpose and intent of the Legislature as ascertained from the
entire language of the statute considered in its plain, ordinary,
and popular sense. Timothy L. Ashford, PC LLO v. Roses, 313
Neb. 302, 984 N.W.2d 596 (2023).
As noted by the majority, “[t]o give effect to all parts of a
statute, an appellate court will attempt to reconcile different
provisions so they are consistent, harmonious, and sensible,
and will avoid rejecting as superfluous or meaningless any
word, clause, or sentence.” Angel v. Nebraska Dept. of Nat.
Resources, 314 Neb. 1, 12, 988 N.W.2d 507, 516 (2023).
When giving effect to all parts of § 29-215 in the present
case, I cannot agree with the majority’s conclusion that Officer
Rockwell’s arrest of Hoehn was in violation of that statute.
Section 29-215 contains four subsections. Subsection (4)
provides meanings for certain words and is not relevant to the
issue of the officer’s jurisdiction in this case; no one disputes
that Officer Rockwell was outside his primary jurisdiction
when the traffic stop occurred. Accordingly, it is the remain-
ing three subsections of § 29-215 that are relevant to my
analysis, with particular focus on the introductory language
contained in each of those subsections.
When interpreting a statute, the starting point and focus of
the inquiry is the meaning of the statutory language, under-
stood in context. State v. Wines, 308 Neb. 468, 954 N.W.2d 893(2021). Section 29-215(1) consists of only one sentence, and it
authorizes a law enforcement officer to “perform the functions
of that office anywhere within his or her primary jurisdic-
tion.” (Emphasis supplied.) Section 29-215(2) has an introduc-
tory sentence, which is followed by subparts (a) through (d).
The introductory sentence for subsection (2) authorizes a law
enforcement officer to “perform the functions of his or her
office” when the officer is “beyond his or her primary jurisdic-
tion” (emphasis supplied) in the circumstances described in
subparts (a) through (d). The situations described in subparts
(a) through (d) are set forth in the majority’s opinion and need
not be repeated here.
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Cite as 32 Neb. App. 446Notably, the introductory language of § 29-215(3) contains
no reference to “within” or “beyond” an officer’s primary
jurisdiction; rather, it only states that “[w]hen probable cause
exists to believe that a person is operating . . . any motor vehi-
cle . . . while under the influence of alcoholic liquor or of any
drug,” the officer has the “power and authority to do any of
the following or any combination thereof[.]” There are no lim-
iting words related to jurisdiction in the introductory language
of subsection (3) like there are in subsections (1) and (2).
While subsection (1) refers to “within . . . primary jurisdic-
tion” and subsection (2) refers to “beyond . . . primary juris-
diction,” the introductory language of subsection (3) refers to
“probable cause” and “operating . . . any motor vehicle . . .
while under the influence.” These differences in the introduc-
tory language of each subsection cannot be ignored.
Because the introductory language of § 29-215(3) does
not make any reference to “within” or “beyond” an officer’s
primary jurisdiction, the circumstances described under all
subparts of § 29-215(3) should be construed without regard
to whether probable cause arose within or beyond an officer’s
primary jurisdiction. Instead, the focus is on whether probable
cause exists to believe a person is driving under the influ-
ence of alcohol or drugs. If so, then § 29-215(3)(a) allows for
the transport of that person to a facility outside the officer’s
primary jurisdiction for chemical testing, and § 29-215(3)(b)
allows for the administration of a post-arrest test advisement to
that person outside the officer’s primary jurisdiction. Notably,
subparts (a) and (b) involve specific acts by law enforcement
that may require cooperation with facilities or services outside
the officer’s primary jurisdiction.
Section 29-215(3)(c) provides authorization for law enforce-
ment to
perform other procedures or functions outside of the
law enforcement officer’s primary jurisdiction which are
directly and solely related to enforcing the laws that con-
cern a person operating or being in the actual physical
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Cite as 32 Neb. App. 446control of any motor vehicle . . . while under the influ-
ence of alcoholic liquor or of any other drug.
While the majority construes this language as “a grant of
power of the same limiting type set forth” in subparts (a) and
(b), I do not. Instead, I read subpart (c) as a broader catch-
all provision that follows two specific examples of the types
of actions an officer may take beyond the officer’s primary
jurisdiction, regardless of whether probable cause developed
within or beyond the officer’s jurisdiction. In other words,
under the introductory language of § 29-215(3), if there is
probable cause to believe a person is operating a vehicle
under the influence of alcohol or drugs, whether within or
beyond an officer’s primary jurisdiction, a law enforcement
officer has the power and authority to transport the person
to a facility outside the officer’s primary jurisdiction for
chemical testing, see § 29-215(3)(a); to administer, outside
the officer’s primary jurisdiction, any post-arrest test advise-
ment to the person, see § 29-215(3)(b); and then the catch-all
provision, to “perform other procedures or functions outside
of the law enforcement officer’s primary jurisdiction which
are directly and solely related to enforcing the laws that
concern a person operating or being in the actual physical
control of any motor vehicle . . . while under the influence”
of alcohol or drugs, § 29-215(3)(c). I find this reading of the
law gives effect to every provision of the statute, including
consideration of the differences in the introductory language
of subsections (1) through (3). Those differences separate the
authority granted “within” an officer’s primary jurisdiction,
the authority granted “beyond” an officer’s primary jurisdic-
tion, and the authority granted without regard for whether the
officer is within or beyond the officer’s primary jurisdiction
when probable cause exists that a person is driving under the
influence of alcohol or drugs.
Accordingly, I agree with the district court’s interpreta-
tion of § 29-215(3) and would have affirmed on that basis.
Further, to the extent the majority has properly construed the
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Cite as 32 Neb. App. 446statute and Officer Rockwell’s actions were in violation of
§ 29-215, I disagree with the majority’s determination that
this statutory violation implicated the Fourth Amendment. See,
Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 170 L.
Ed. 2d 559 (2008) (arrest prohibited by state law but based
on probable cause did not violate Fourth Amendment; “war-
rantless arrests for crimes committed in the presence of an
arresting officer are reasonable under the Constitution, and
. . . while States are free to regulate such arrests however they
desire, state restrictions do not alter the Fourth Amendment’s
protections”); Marksmeier v. Davie, 622 F.3d 896 (8th Cir.
2010) (court need not decide whether officer was acting out-
side primary jurisdiction under § 29-215 because even if arrest
violated Nebraska law, it did not violate Fourth Amendment);
Rose v. City of Mulberry, Arkansas, 533 F.3d 678 (8th Cir.
2008) (no violation of Fourth Amendment when arrest outside
of officer’s jurisdiction was based on probable cause). See,
also, State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014)
(absent constitutional violation, court will normally suppress
evidence obtained in violation of rule or statute only if gov-
erning law provides that remedy). Section 29-215 provides no
such remedy, nor has Hoehn informed this court of any other
governing law providing such a remedy.
Regardless, although our reasoning differs, I concur with the
majority’s ultimate conclusion to affirm Hoehn’s conviction
and sentence.