State v. Furman ( 2024 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. FURMAN
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.
TYLER L. FURMAN, APPELLEE.
Filed October 8, 2024. No. A-23-787.
Appeal from the District Court for Lancaster County: RYAN S. POST, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
PIRTLE, Chief Judge.
I. INTRODUCTION
Tyler L. Furman was convicted in the county court for Lancaster County on one count of
DUI–second offense. His conviction was affirmed on appeal to the district court. He now appeals
the district court’s affirmance of the county court’s judgment related to the admission of his
chemical breath test, the denial of his motion to suppress, and the overruling of an objection at
trial. For the reasons that follow, we affirm.
II. BACKGROUND
On July 21, 2021, at around 5:30 a.m., an off-duty University of Nebraska-Lincoln police
officer, John Backer, noticed a vehicle sitting in the grass 10 to 12 feet away from the road as he
was driving by to drop his son off at work. The vehicle was parked in a ditch with its headlights
facing away from the road. On his way back from dropping off his son, the vehicle was still there
so he called 9-1-1 and went to investigate. Upon approaching the vehicle, Backer saw that it was
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still running, and had a single occupant who was sleeping in the driver’s seat. When the occupant
got out of the vehicle, Backer noticed that he appeared disheveled and smelled like alcohol.
Approximately 15 to 20 minutes later, deputies from the Lancaster County sheriff’s office
responded and took over the scene. The occupant, who later identified himself as Furman, told the
deputies that he stopped there the previous night because he was tired and needed to sleep. The
deputies reported that Furman smelled like alcohol and had bloodshot eyes. Furman told the
deputies that he had consumed four alcoholic drinks at approximately 10:30 p.m. the prior night
and had not consumed any since. The deputies proceeded to conduct several field sobriety tests to
determine whether he was impaired. After Furman failed all three tests and a preliminary breath
test indicated the presence of alcohol, the deputies determined that he was impaired and placed
him under arrest for DUI. Furman was taken to the Lancaster County detox center for further
testing where he was administered a formal breath test via a DataMaster machine. The result of
this test showed that he had a blood alcohol content of .125 grams.
On August 19, 2021, Furman was charged in the county court with DUI–second offense.
On March 15, 2022, he filed a motion to suppress all evidence collected as a result of his stop and
arrest alleging that the officers did not have a warrant or probable cause. During the suppression
hearing, Furman claimed that he tried to leave after the initial encounter with Backer but was told
that he was not allowed to. Backer testified that he told Furman he was an off-duty officer, but
denied telling him that he was not allowed to leave.
In the county court’s order, it accepted Backer’s testimony over Furman’s and found that
because the initial encounter was voluntary it did not trigger Fourth Amendment protections. It
also found that the deputies had reasonable suspicion to conduct further tests due to Furman’s
behavior, his bloodshot and watery eyes, and his admission to drinking the night before. It then
found that Furman failing all three field sobriety tests and a preliminary breath test gave the officers
probable cause to arrest him. As a result, the court denied Furman’s motion to suppress.
A jury trial was held from November 14 to November 16, 2022. Prior to the start of the
trial, Furman raised the same objections to the evidence that he made in his motion to suppress.
The court overruled these objections and allowed Furman to enter continuing objections to the
evidence. During the trial, the State called five witnesses: Kayla Puhrmann, Backer, Deputy Brad
Sturdy, Deputy Jason Schnieder, and Officer Kyle Hoggins. Furman called two witnesses: Dr.
Robert John Belloto, Jr., and Anthony Palacios.
Puhrmann is an identification lab specialist for the Lincoln Police Department. In this role,
she is responsible for the maintenance of the DataMaster instruments. In her testimony, she
essentially explained how the DataMaster works, how it is maintained, and who is allowed to
administer tests with it. She also discussed the rules and regulations for testing someone’s alcohol
level and maintaining the DataMaster machines. She testified that these rules and regulations are
created by the Nebraska Department of Health and Humans Services (DHHS) and are called “Title
177.” She also testified that the DataMaster used to test Furman was properly calibrated,
maintained, and tested according to Title 177’s requirements.
During Puhrmann’s testimony, the State offered five exhibits into evidence in a single
offering. One of these exhibits, exhibit 14, was an uncertified copy of Title 177. Furman’s attorney
objected to the admission of these five exhibits based on lack of foundation and hearsay. The court
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overruled the objections as to exhibit 14 and one other exhibit but required further foundation for
the remaining exhibits which were eventually received.
Backer then testified and stated that he worked for the University of Nebraska-Lincoln
police department and has done so for around 20 years. He then recounted approaching Furman’s
vehicle after seeing it on the side of the road. Prior to contacting the vehicle, he called 9-1-1 and
described the scene. In the 9-1-1 recording, Backer stated the car was running and that there was
a man slumped over in the driver’s seat. He told the 9-1-1 operator that he was going to open the
door to make sure the occupant was okay and stated that he “won’t let him drive off.”
Backer testified that he stayed with Furman for approximately 15 to 20 minutes until the
deputies arrived. He stated that during this time Furman looked slightly disheveled, groggy, and
smelled like alcohol. However, he said that Furman did not have any problem getting out of the
vehicle or maneuvering the uneven ground the car was parked on.
Sturdy, the first responding deputy, also testified. Sturdy has worked for the Lancaster
County sheriff’s office for approximately 14 years and has conducted around 100 DUI
investigations in his career. He first explained his training in identifying whether drivers are
impaired. He stated that signs of alcohol impairment include watery or bloodshot eyes, slurred
speech, lack of balance, lack of fine motor skills, the odor of alcoholic beverages, and “horizontal
gaze nystagmus,” which is the inadvertent bouncing of the eyes when someone takes a depressant,
like alcohol.
Sturdy testified that Furman smelled like alcohol and described the scene. He stated the
vehicle was parked in a ditch with tire tracks in the grass leading in both directions. In front of the
vehicle, there were marks that went up an embankment to some trees. And behind the vehicle there
were tire marks in the grass that crossed the gravel road and went up a small incline on the opposite
side. After asking Furman how the vehicle ended up in the ditch, Furman claimed to be a heavy
sleeper and stated that he pulled over on his way home from work at around 11 p.m. or 12 a.m. the
previous night. Furman then allowed Sturdy to search him for weapons and was placed in a secured
patrol vehicle while Sturdy spoke with Backer about the incident. Upon Schnieder and Hoggins
arriving, Sturdy transferred the investigation to them.
Schnieder then testified. He has worked for the Lancaster County sheriff’s office for
approximately eight years and has conducted over 300 DUI investigations throughout his career.
On the day of the incident, he responded to the scene with a deputy he was training, Hoggins.
Upon arriving at the scene, Schnieder testified that Furman’s eyes were red and bloodshot
and that he smelled like alcohol. He also mentioned that Furman dropped his cellphone and “had
difficulty maintaining his dexterity.” While Furman was still in the police vehicle, he told
Schnieder that he had been at a work event the previous night and had consumed two beers and
two “sake bombs,” which is a mixture of beer and sake, but had not consumed anything since.
Furman also told him that he had been heading home the previous night, but pulled over because
he was getting tired.
Schnieder eventually asked Furman to participate in standardized sobriety tests and he
agreed to participate. As part of his testimony, Schnieder described the field sobriety tests law
enforcement officers are trained to conduct when they believe a driver is impaired. He stated that
there were three main maneuvers: the horizontal gaze nystagmus, the walk and turn, and the one
leg stand. He explained that the horizontal gaze nystagmus tests the “inadvertent bouncing of the
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eyes” that occurs when someone drinks alcohol or another depressant. When conducting this test,
he stated that he is looking for “lack of smooth pursuit, distinct sustained nystagmus at maximum
deviation, and onset of nystagmus prior to 45 degrees in each eye.” Essentially, for this test, law
enforcement is looking at whether the suspect’s eyes are bouncing and ticking when moving back
and forth, when looking at the furthest points of their vision, and prior to their eyes reaching a
45-degree angle.
Schnieder also explained the walk and turn maneuver and how it tests whether someone
can maintain their attention while being given instructions. The test involves the suspect walking
heel-to-toe on an imaginary line for nine steps, turning around, and repeating the maneuver while
walking back to the starting position. While doing this, the person is instructed to look at their feet,
keep their hands at their sides, and count each step. Schnieder then described the one leg stand test.
The suspect is first instructed to stand with their feet together and hands at their side. They are then
told to lift one of their feet 6 inches off the ground while counting by thousands until they are told
to stop.
Once Furman agreed to participate in the field sobriety tests, Schnieder administered the
three assessments. For the horizontal gaze nystagmus maneuver, Schnieder testified that Furman
displayed six out of six indicators of impairment. He stated that Furman had a “lack of smooth
pursuit” in both eyes, “distinct and sustained nystagmus at maximum deviation” in both eyes, and
the onset of nystagmus prior to his eyes reaching 45 degrees. For the walk and turn maneuver,
Furman demonstrated four out of eight indicators of impairment. He was unable to maintain the
start position, stepped off the line, used his arms for balance, and missed two heel-to-toe steps. For
the one leg stand test, Schnieder stated that Furman’s results displayed one of four indicators of
impairment but highlighted that he did not complete the test. He stated that Furman only lifted his
foot 2 to 3 inches off the ground, did not look at his foot, used his arms for balance, stopped
counting by thousands, and did not complete the maneuver.
Schnieder then testified that based on his training and experience, in conducting more than
500 field sobriety tests, that Furman’s test results indicated that he was impaired. Because of this,
Furman was placed under arrest to undergo further testing.
Hoggins also testified at trial. At the time of the incident, he was a deputy for the Lancaster
County sheriff’s office and is currently a police officer for the Wayne Police Department. When
the incident occurred, he was still in training and Schnieder was his field training officer. Hoggins
testified that after Furman was placed under arrest, he administered a formal breath test using a
DataMaster. Prior to this, Hoggins had never used the machine, but had previously been trained in
how to use it. He testified that he took all the necessary steps prior to conducting the test, that he
made no mistakes in administering the test, and that Furman’s result displayed that he had a blood
alcohol content of .125 grams of alcohol per 210 liters of breath.
Furman then called his two witnesses to testify. Belloto generally explained problems
associated with relying on DataMaster machines to test for alcohol impairment. He also discussed
potential issues with Furman’s test result. However, because Furman does not assign an error
related to the reliability of the DataMaster test result, we will not include further details of this
testimony.
Palacios then testified. He is a law enforcement consultant who specializes in the National
Highway Traffic Safety Administration’s impaired driving training curriculum that many law
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enforcement officers must complete to administer field sobriety tests. His testimony generally
consisted of instances from the recordings where he believed that Furman did not demonstrate
impairment. He first noted that prior to the field sobriety tests Furman did not have any trouble
walking around the scene. He also stated that in his opinion Furman did not display any slurred
speech or difficulties in controlling his mental or physical faculties. He mentioned that Furman
was able to quickly follow the deputies’ instructions to get out of the patrol car without losing
balance, retrieve his license from his wallet without difficulty, and walk on the grassy incline
without stumbling.
Palacios also testified that Schnieder did not administer the horizontal gaze nystagmus test
correctly. He stated that in relation to the appropriate time rate for the test, “every step [Schnieder]
made was incorrect.” For the equal tracking assessment, he said that because Schnieder conducted
four passes, the test should have taken 16 seconds or 4 seconds for each pass. However, that portion
of the test only took 8 seconds. Similarly, the smooth pursuit test should have also taken 16
seconds, but it was completed in 9 seconds. He also stated that for the sustained nystagmus at
maximum deviation test, the maximum deviation position needs to be held for 4 seconds each
time, but Schnieder only held it for 4 seconds on one of his four passes. Palacios said the other
three passes were only held for 3 seconds. He also stated that the 45-degree angle test was done
incorrectly. He explained that the training curriculum instructs officers to only move the stimulus
back inside upon reaching 45 degrees when they have not seen onset nystagmus. But Schnieder
moved the stimulus back inside each time while also claiming he saw onset nystagmus.
Palacios also questioned Schnieder’s interpretation of Furman’s one leg stand maneuver.
He explained that the four criteria of impairment for this test are whether the suspect puts their
foot down, uses their arms for balance, or sways or hops. After reviewing the recording, Palacios
stated that he did not see any of these indicators present during Furman’s test. He continued to
state that while Furman displayed some indicators of impairment on the walk and turn test, the one
leg stand assessment has been determined to be more reliable.
The matter was then sent to the jury and after deliberation, the jury returned a guilty verdict.
The county court accepted the jury’s verdict, fined him $500, sentenced him to 60 days’
incarceration, and revoked his license for 18 months.
Furman perfected a timely appeal with the district court and raised five errors on appeal.
Restated, he assigned the county court erred by (1) admitting his chemical test result because (a)
the uncertified copy of Title 177 was hearsay and lacked sufficient foundation and (b) the State
failed to prove the chemical test result was obtained in accordance with the methods approved by
DHHS; (2) overruling his motion to suppress because (a) Furman was seized by an officer outside
his primary jurisdiction, (b) there was not reasonable suspicion for Furman’s seizure, (c) there was
not reasonable suspicion to conduct field sobriety tests, and (d) there was no probable cause to
arrest him; and (3) allowing Schnieder to give opinion testimony that a person who is not impaired
will not have horizontal gaze nystagmus.
On August 8, 2023, the district court issued an order affirming the county court’s judgment
and sentence. The court found that Furman’s objections to the copy of Title 177 were not preserved
because the objections were made simultaneously to five different exhibits and did not specify the
certification issues raised on appeal. However, the court also found that even if the objections were
specific enough, the copy was self-authenticating under Neb. Rev. Stat. § 27-902(5) (Reissue
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2016), as a publication issued by a public authority. The court also found the State showed the
DataMaster result was obtained in compliance with the methods required by DHHS because
Puhrmann testified that the copy of Title 177 was a fair and accurate copy of the DHHS rules that
were then in effect for the operation of the DataMaster machines.
The court then held the motion to suppress was properly denied because Furman’s initial
interaction with Backer did not amount to a seizure and Schnieder had reasonable suspicion to
conduct the field sobriety tests, the results of which gave him probable cause to arrest Furman.
Lastly, the district court determined Schnieder’s testimony about horizontal gaze nystagmus was
properly admitted because he did not opine that the presence of nystagmus equated to impairment.
But even if he did, the court found that the testimony did not exceed the limited purpose of
establishing that Furman had an impairment that may have been caused by alcohol.
Furman now appeals the district court’s affirmance of the county court’s decision.
III. ASSIGNMENTS OF ERROR
Restated and consolidated, Furman assigns the district court erred in affirming the county
court’s decisions (1) to admit his breath test results because the State did not produce a certified
copy of Title 177; (2) to deny his motion to suppress because (a) Backer was operating outside of
his primary jurisdiction, (b) the deputies lacked reasonable suspicion to place Furman in the patrol
car, and (c) the deputies lacked reasonable suspicion to conduct field sobriety tests; and (3) to
overrule the objection to Schnieder’s testimony equating horizontal gaze nystagmus to driving
while impaired.
IV. STANDARD OF REVIEW
When deciding appeals from criminal convictions in county court, we apply the same
standards of review that we apply to decide appeals from criminal convictions in district court.
State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Anthony, 316 Neb. 308, 4 N.W.3d
393 (2024). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. State v. Anthony, supra.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. State v. Briggs,
308 Neb. 84, 953 N.W.2d 41 (2021). Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s
determination. State v. Briggs, supra. When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers all the evidence, both from trial and
from the hearings on the motion to suppress. State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).
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V. ANALYSIS
1. RECEIPT OF CHEMICAL BREATH TEST
Furman first assigns the district court erred by affirming the county court’s admittance of
his chemical breath test at trial. Furman argues that his chemical breath test should have been
excluded because the State did not introduce a certified current copy of Title 177. Because he
asserts a certified copy of Title 177 is a foundational requirement for the admission of a breath
test, he contends the county court should not have received the results of his breath test into
evidence.
The State makes several arguments in opposition to Furman’s assignment. First, the State
agrees with the ruling of the district court that Furman’s foundation and hearsay objections were
inadequately specific because they were made in relation to the offering of five exhibits and did
not specifically raise the issue of certification before the county court. Second, the State argues
that even if Furman’s objections were properly preserved, the copy of Title 177 was properly
received into evidence because it bore official government stamps and signatures and was claimed
to be a fair and accurate copy of the rules provided in Title 177. Lastly, the State asserts that a
copy of Title 177 is not a necessary foundational requirement for the admittance of a breath test in
DUI cases because, as a public regulation, it is subject to judicial notice.
We agree with the State and district court that Furman failed to preserve his objections on
appeal. Objections assist the court to make correct and fair decisions on evidentiary matters by
alerting the court to the proper course of action on evidentiary matters and directing the court’s
attention to questioned admissibility of particular evidence so that the court may intelligently,
quickly, and correctly rule on the reception or exclusion of evidence. State v. Huston, 285 Neb.
11, 824 N.W.2d 724 (2013). Unless an objection to offered evidence is sufficiently specific to
enlighten the trial court and enable it to pass upon the sufficiency of such objections and to observe
the alleged harmful bearing of the evidence from the standpoint of the objector, no question can
be presented therefrom on appeal. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016). In
seeking to exclude evidence, counsel must adhere to a basic and straightforward approach: Tell
the court the reason why the evidence is inadmissible! State v. Coleman, 239 Neb. 800, 478
N.W.2d 349 (1992). As expressed by the Nebraska Supreme Court, “A true objection does not
wander among the Nebraska Evidence Rules in the hope of eventually ending its odyssey at the
doorstep of a particular rule of evidence.” State v. Coleman, 239 Neb. at 812, 478 N.W.2d at 357.
When the State offered the copy of Title 177 into evidence, it also offered four other
exhibits. When this group of exhibits was offered, Furman’s counsel stated, “Objection:
foundation, hearsay.” We do not believe that broadly objecting to five exhibits on foundational
and hearsay grounds is sufficiently specific to preserve Furman’s claim that the copy of Title 177
lacked proper certification.
A foundation objection is a general objection, which requires the court to engage in
interpretation on appeal, rather than be apprised of the real basis for the objection. State v. Smith,
292 Neb. 434, 873 N.W.2d 169 (2016). Thus, a party may not normally complain on appeal for an
overruled foundation objection unless the grounds for the exclusion are obvious without stating it.
Id. For hearsay objections, it is generally sufficient to make a general hearsay objection to a
specific statement, but a general hearsay objection to the entirety of a witness’ testimony or to
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multiple statements in an exhibit, each admissible or objectionable under differing theories, is not
usually sufficient to preserve the hearsay objection. See State v. Henry, supra. Rather, the opponent
to the evidence must identify which statements are objectionable as inadmissible hearsay. Id.Because Furman’s objections occurred in relation to the offering of five exhibits and did
not specifically raise the issue of certification, we do not believe it was obvious that Furman was
objecting to the copy of Title 177 because it was uncertified. As noted by the district court, Furman
“did not even alert the county court to the certification issue he raises on appeal.” Therefore, we
determine Furman’s objections were not sufficiently specific nor obvious enough to preserve his
claim on appeal. With this finding, we do not address the parties’ other arguments. See Jamie N.
v. Kenneth M., 23 Neb. App. 1, 867 N.W.2d 290 (2015) (an appellate court is not obligated to
engage in analysis which is not needed to adjudicate controversy before it).
2. MOTION TO SUPPRESS
Furman next assigns the district court erred in affirming the county court’s denial of his
motion to suppress. He makes three arguments in connection to this assignment: (1) Backer was
operating outside of his primary jurisdiction when he unlawfully seized him; (2) Sturdy lacked
reasonable suspicion to detain him in his patrol car; and (3) Schnieder and Hoggins lacked
reasonable suspicion to have him conduct field sobriety tests.
To determine whether an encounter between an officer and a citizen reaches the level of a
seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the
analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993), which describes
the three levels, or tiers, of police-citizen encounters. State v. Shiffermiller, 302 Neb. 245, 922
N.W.2d 763 (2019). The first tier of police-citizen encounters involves no restraint of the liberty
of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through
noncoercive questioning. Id. This type of contact does not rise to the level of a seizure and therefore
is outside the realm of Fourth Amendment protection. State v. Shiffermiller, supra. The second
category, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S.
1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention during a frisk
for weapons or preliminary questioning. State v. Shiffermiller, supra. This type of encounter is
considered a “seizure” sufficient to invoke Fourth Amendment safeguards, but because of its less
intrusive character requires only that the stopping officer have specific and articulable facts
sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.
State v. Shiffermiller, supra. The third type of police-citizen encounters, arrests, is characterized
by highly intrusive or lengthy search or detention. Id. The Fourth Amendment requires that an
arrest be justified by probable cause to believe that a person has committed or is committing a
crime. State v. Shiffermiller, supra. As noted, only the second and third tiers of police-citizen
encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S.
Constitution. State v. Shiffermiller, supra.(a) Initial Contact
Furman first asserts his Fourth Amendment rights against unreasonable search and seizure
were violated when Backer unlawfully seized him outside of his primary jurisdiction. Because the
Supreme Court has recently held that a law enforcement officer acting outside their primary
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jurisdiction, by itself, does not implicate Fourth Amendment protections, this assignment of error
fails.
Furman’s argument asserts that Backer violated his Fourth Amendment rights because he
acted outside of his primary jurisdiction in violation of Neb. Rev. Stat. § 29-215 (Reissue 2016).
Section 29-215 generally provides that an officer has “the power and authority to enforce the laws
of this state . . . anywhere within his or her primary jurisdiction” and identifies circumstances when
an officer who is “beyond his or her primary jurisdiction” has “the power and authority to enforce
the laws of this state.”
After the parties had already submitted their briefs, the Supreme Court decided State v.
Hoehn, 316 Neb. 634, 6 N.W.3d 487 (2024). In that case, an officer working for the Minatare
Police Department left his primary jurisdiction to investigate a possible drunk driver. After finding
a vehicle matching the description straddling the centerline, the officer conducted a traffic stop.
Because the officer observed that the driver had slurred speech, bloodshot and watery eyes, and
smelled like alcohol, he conducted a preliminary breath test and arrested the driver. At a
suppression hearing, the defendant argued that he was unlawfully seized without probable cause
in violation of his rights under the “Fourth and Fourteenth Amendment of the U.S. Constitution
and also Art. I § 7 of the Nebraska Constitution, and all applicable statutes.” State v. Hoehn, 316
Neb. at 638, 6 N.W.3d at 490. The county court denied the motion to suppress finding that the
officer had probable cause to administer the arrest. Id. Following a bench trial, where Hoehn
renewed his objections based on the Fourth and Fourteenth Amendments, Hoehn was found guilty
and convicted of DUI with a blood alcohol content of .08 or more, a Class W misdemeanor.
Hoehn then timely appealed the denial of his motion to suppress with the district court,
which affirmed the county court’s decision. He then appealed to this court, which affirmed the
district court, albeit on different grounds. In this decision we determined that the officer acted
outside his primary jurisdiction pursuant to § 29-215 and that this violated his Fourth Amendment
rights. State v. Hoehn, supra. However, we concluded that because the officer could have
reasonably believed that he had jurisdictional authority to stop and arrest Hoehn, the good faith
exception to the exclusionary rule applied. Id. Thus, we declined to apply the exclusionary rule
and affirmed Hoehn’s conviction and sentence. Id.Hoehn then appealed to the Supreme Court, which affirmed our holding, but on different
grounds. By the time the appeal reached the Supreme Court, Hoehn’s sole argument was that “the
Court of Appeals erred in determining it was reasonable for an officer . . . to mistakenly believe
he had the statutory power and authority to make the stop and that therefore, it serves no deterrent
purpose to apply the exclusionary rule.” Id. at 648, 6 N.W.3d at 496. The court disagreed with our
reasoning and decided that violations of § 29-215 do not implicate the Fourth Amendment
protections nor the exclusionary rule. State v. Hoehn, supra. The court held that in the absence of
an argument asserting the officer lacked reasonable suspicion to conduct the stop or probable cause
to administer the arrest, it does not matter for Fourth Amendment purposes whether the officer
exceeded his authority under § 29-215. State v. Hoehn, supra. Specifically, the court stated, “A
law enforcement officer’s jurisdictional power and authority to make a stop or arrest is irrelevant
to the admissibility, under the Fourth Amendment and article I, § 7, of the Nebraska Constitution,
of the evidence obtained from the stop or arrest.” State v. Hoehn, 316 Neb. 634, 656, 6 N.W.3d
487, 501 (2024).
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We tend to agree with the State and the lower courts that Backer did not detain Furman.
However, even if we were to find that Backer unlawfully seized Furman in violation of § 29-215,
this seizure would not constitute a Fourth Amendment violation. Thus, the exclusionary rule would
not apply. Accordingly, because Furman does not assign that Backer lacked reasonable suspicion
to detain him and Hoehn clearly found that a violation of § 29-215, alone, is irrelevant to the
admissibility of evidence under the Fourth Amendment, we determine that this assignment of error
fails.
(b) Subsequent Seizure
Furman next asserts that Sturdy did not have reasonable suspicion to detain him by placing
him in the backseat of his secured patrol car.
In order to seize or detain a person, an officer must have specific and articulable facts
sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.
See State v. Samuels, 31 Neb. App. 918, 991 N.W.2d 900 (2023). Reasonable suspicion entails
some minimal level of objective justification for detention, something more than an inchoate and
unparticularized hunch, but less than the level of suspicion required for probable cause. Id.Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends
on the totality of the circumstances. Id. Reasonable suspicion must be determined on a
case-by-case basis. Id. In determining whether a police officer acted reasonably, it is not the
officer’s unparticularized suspicion that will be given due weight, but the specific reasonable
inferences which the officer is entitled to draw from the facts in light of the officer’s experience.
State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).
We determine that Sturdy had reasonable suspicion to detain Furman on the suspicion of
driving under the influence. When Sturdy arrived at approximately 5:30 in the morning, the vehicle
was parked perpendicularly 10 to 12 feet away from the road in a ditch. After asking Furman what
happened, he said that he had been headed home at around 11 p.m. or 12 a.m. the previous night
and pulled over to get some rest. At this point, he noted that Furman smelled like alcohol. We
believe that the totality of these circumstances gave rise to reasonable suspicion that Furman had
been driving under the influence. While Furman argues that the smell of alcohol alone does not
amount to reasonable suspicion, that is not what occurred here. Furman’s car was found in a ditch
in the early hours of the morning, there were tire marks indicating that the car took an unusual path
from one shoulder of the road to the other, Furman admitted to having slept in the car the prior
night because he was too tired to drive home, and he smelled like alcohol. Based on these facts
and the reasonable inferences Sturdy was entitled to draw from them, we conclude that he had
reasonable suspicion to detain Furman under suspicion of driving under the influence.
(c) Field Sobriety Tests
Furman next asserts that Schnieder and Hoggins lacked reasonable suspicion to administer
field sobriety tests on him. An officer is required to have only a reasonable, articulable suspicion
that a motorist was driving under the influence in order to expand the scope of the initial stop and
detain him or her for field sobriety tests. State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010),
disapproved on other grounds by State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021).
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For similar reasons that Sturdy had reasonable suspicion to detain Furman, Schnieder and
Hoggins had reasonable suspicion to administer field sobriety tests. Once Schnieder began
speaking with Furman, Furman told him that he had been at a work event the previous night and
had consumed two beers and two sake bombs. Furman also told him that his car was in the grass
because he pulled over on the way home to rest. Schnieder also testified that Furman’s eyes were
red and bloodshot, that he smelled like alcohol, and that he was having difficulty maintaining his
dexterity. Based on the totality of the circumstances of Furman’s vehicle being found in a ditch in
the early hours of the morning, him telling law enforcement that he had slept there the prior night
because he was too tired to drive home, him smelling like alcohol and having bloodshot eyes, and
him stating that he had consumed four alcoholic beverages the previous night, we determine that
Schnieder had reasonable suspicion to conduct field sobriety tests.
We therefore conclude that the district court did not err in affirming the county court’s
denial of Furman’s motion to suppress.
3. TESTIMONY ON HORIZONTAL GAZE NYSTAGMUS
Furman next assigns the district court erred in affirming the county court’s overruling of
his objection to Schnieder’s testimony that the presence of horizontal gaze nystagmus (HGN)
equates to impairment. While Schnieder explained that horizontal gaze nystagmus is the
inadvertent bouncing of someone’s eyes under the influence of a depressant, like alcohol, the
following colloquy occurred:
Q. Based on your training, if someone is not under the influence of alcohol, what
should their eyes do?
[Furman’s attorney]: Your Honor, I’m going to object. That’s an improper opinion.
State versus Baue.
....
THE COURT: He can answer the question.
....
THE WITNESS: Their eyes will be very smooth. They’ll track equally and they’ll
be very smooth. They won’t tick or bounce.
Furman contends that this testimony was improper under State v. Baue, 258 Neb. 968, 607
N.W.2d 191 (2000). In that case, the Supreme Court overruled a prior precedent that barred the
admission of horizontal gaze nystagmus test results at trial. In finding that the test is now generally
accepted in the relevant scientific community, the court stated that “when the test is given in
conjunction with other field sobriety tests, the results are admissible for the limited purpose of
establishing that a person has an impairment which may be caused by alcohol.” Id. at 985, 607
N.W.2d at 204. The court stated in its conclusion that it agreed with an Alaskan appellate court,
which held:
While HGN testing may not, of itself, be sufficient to establish intoxication, HGN test
results are admissible as a factor to be considered by the fact-finder when determining
intoxication. Testimony concerning a defendant’s performance on a properly administered
HGN test is admissible on the issue of impairment, provided that the prosecution claims
no greater reliability or weight for the HGN evidence than it does for evidence of the
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defendant’s performance on any of the other standard field sobriety tests, and provided
further that the prosecution makes no attempt to correlate the HGN test result with any
particular blood-alcohol level, range of blood-alcohol levels, or level of impairment.
Id. at 985, 607 N.W.2d at 204 (citing Ballard v. State, 955 P.2d 931 (Alaska App. 1998). Thus, the
court concluded “that while [a horizontal gaze nystagmus] test result is relevant to show that an
individual is impaired, such a result, standing alone, is insufficient to prove the offense of DUI.”
State v. Baue, 258 Neb. at 985, 607 N.W.2d at 204.
Furman contends that the Baue ruling held that “any opinion that states the presence of
[horizontal gaze nystagmus] establishes impairment is improper.” Brief for appellant at 28.
Therefore, he asserts that because Schnieder’s testimony conflated nystagmus with impairment,
his objection should have been sustained and the only available remedy is to grant him a new trial.
First, we determine that Furman’s objection to the State’s question was properly overruled.
The objection made by Furman was to the prosecutor’s question, not Schnieder’s answer. The
question posed to Schnieder asked him, based on his training in conducting DUI investigations,
what a person’s eye should do on the horizontal gaze nystagmus test if they were not under the
influence of alcohol. While his response arguably was more expansive than the question asked,
Furman did not object to the answer or seek to have it stricken. Therefore, it is questionable
whether the issue raised by Furman on appeal has been properly preserved.
But, even if Furman’s objection can be construed to be broad enough to encompass
Schnieder’s answer, we nonetheless find that his testimony did not violate the principles
enunciated in Baue. When the testimony regarding the administration of the horizontal gaze
nystagmus test to Furman is considered in the context of all the testimony about indicators of
impairment, there is no indication that the HGN results were portrayed as more reliable or should
be given greater weight than any of the other field sobriety tests. Likewise, we do not believe this
testimony attempted to correlate the test result with a particular blood alcohol level, range of
blood-alcohol level, or level of impairment.
The totality of the evidence includes Furman being found asleep at 5:30 in the morning
while sitting in the driver’s seat of a running vehicle that was parked in a ditch on the side of the
road, tire tracks that indicated the car had traveled across the road and up an embankment,
Furman’s statements that he had been drinking the previous night and had been too tired to drive
all the way home, the results of his other field sobriety tests, Backer’s observations that he was
disheveled and smelled like alcohol when he first approached him, the deputies’ observations that
he was slurring his speech, disheveled, had bloodshot eyes, and smelled of alcohol, and the results
of his chemical breath test showing an alcohol level above the legal limits. With all this evidence
introduced at trial, it is clear that Schnieder’s testimony concerning the horizontal gaze nystagmus
test was not proffered as the sole basis for the jury to believe that Furman was intoxicated. Rather,
it was simply one of many pieces of evidence adduced regarding impairment. We fail to see how
this testimony in any way violated the principles enunciated in State v. Baue, supra. Accordingly,
we conclude that this assignment of error fails.
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VI. CONCLUSION
We determine the district court did not err in affirming the county court’s admittance of
exhibit 14 because Furman’s foundation and hearsay objections were not sufficiently specific or
obvious to preserve his claim that the exhibit was uncertified. Likewise, we affirm the denial of
Furman’s motion to suppress because an officer exceeding their primary jurisdiction does not
implicate the Fourth Amendment and Schnieder and Hoggins had reasonable suspicion to detain
Furman and conduct field sobriety tests. Lastly, we conclude that it was not an error to overrule
Furman’s objection to Schnieder’s testimony because the testimony did not run afoul of the
Supreme Court’s holding in State v. Baue, supra. Accordingly, we affirm the district court’s order.
AFFIRMED.
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