State v. Pester , 294 Neb. 995 ( 2016 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. PESTER
Cite as 294 Neb. 995
State of Nebraska, appellee, v.
R ichard Pester, appellant.
___ N.W.2d ___
Filed October 14, 2016. No. S-15-530.
1. Criminal Law: Courts: 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 examination of the
record for error or abuse of discretion.
2. Courts: Judgments: Appeal and Error. 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. But an appel-
late court independently reviews questions of law in appeals from the
county court.
3. Judgments: Pleadings: Appeal and Error. Regarding questions of
law presented by a motion to quash, an appellate court is obligated to
reach a conclusion independent of the determinations reached by the
trial court.
4. 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 pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
5. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
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on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
6. Constitutional Law: Search and Seizure: Warrantless Searches:
Blood, Breath, and Urine Tests: Arrests. A warrantless breath test
administered as a search incident to a lawful arrest for driving under the
influence does not violate the Fourth Amendment’s prohibition against
unreasonable searches and seizures.
7. 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
state.
8. Arrests: Search and Seizure: Probable Cause. An arrest constitutes a
seizure that must be justified by probable cause to believe that a suspect
has committed or is committing a crime.
9. Probable Cause: Words and Phrases. Probable cause is a flexible,
commonsense standard that depends on the totality of the circumstances.
10. Probable Cause: Appeal and Error. An appellate court determines
whether probable cause existed under an objective standard of reason-
ableness, given the known facts and circumstances.
11. Criminal Law: Motor Vehicles: Words and Phrases. Under Neb. Rev.
Stat. § 60-6,196 (Reissue 2010), being in “actual physical control” is
distinct from “operating” a motor vehicle and is interpreted broadly to
address the risk that a person not yet operating a motor vehicle might
begin operating that vehicle with very little effort or delay.
Appeal from the District Court for Scotts Bluff County,
R andall L. Lippstreu, Judge, on appeal thereto from the
County Court for Scotts Bluff County, James M. Worden,
Judge. Judgment of District Court affirmed.
Bell Island, of Island & Huff, P.C. L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Matthew A. Dodd, of Dodd Law Firm, P.C., and Bradley P.
Roth, of McHenry Haszard Law, for amicus curiae National
College of DUI Defense.
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STATE v. PESTER
Cite as 294 Neb. 995
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Richard Pester appeals the decision of the district court for
Scotts Bluff County in which the court affirmed his convic-
tions following a jury trial in Scotts Bluff County Court for
driving under the influence (DUI) and refusal to submit to
a chemical test, both second offenses. The county court had
overruled Pester’s motion to quash the charge of refusal to
submit to a chemical test; Pester had argued that criminalizing
refusal was a violation of the constitutional rights to be free
of unreasonable searches and seizures. The county court had
also overruled Pester’s motion to suppress evidence obtained
as a result of his arrest; Pester had argued that there was not
probable cause to support his arrest. On appeal, Pester assigns
error to the district court’s affirmance of such rulings and to
its conclusion that the evidence was sufficient to support his
convictions. We affirm the district court’s order.
STATEMENT OF FACTS
Shortly after midnight on July 3, 2012, Scotts Bluff County
Deputy Sheriff Kristopher Still found Pester slumped over
the steering wheel of a vehicle parked in the lot of a farm
implement dealership. The dealership was not open for busi-
ness at the time. The lot of the dealership was bordered
by three public highways, and there was no access to the
lot other than by one of the three public highways. There
were no gates or locks on the entrances, and the general
public could drive onto the lot in order to enter the dealer-
ship building.
Still was driving past the back side of the business when
he observed a quick flash of brake lights in the lot. Because
of the time of night and the fact that the business was not
open, Still pulled into the lot to check on the vehicle. Still
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got out of his patrol car and walked up to the vehicle. As he
approached the vehicle, Still observed a man, later identi-
fied as Pester, hunched over the steering wheel. When he got
closer, Still observed a partially filled whiskey bottle and a
partially filled beer can on the front passenger-side floorboard.
He also observed that the keys were in the ignition, although
the engine was not running.
Still knocked on the vehicle’s window several times and
announced his presence before Pester responded. Still asked
him to roll down a window so that they could talk. Still saw
Pester turn the key in the ignition and roll down a power win-
dow. When Pester opened the window, Still smelled a strong
odor of alcohol coming from the vehicle; he also observed
that Pester had bloodshot eyes and a flushed face and that he
slurred his speech. In response to Still’s questioning, Pester
said that he had been drinking. He also said that he was not the
owner of the property on which he was parked but that he was
tired and had stopped there to sleep.
Still asked Pester to get out of the vehicle so that Still
could administer field sobriety tests. After Pester got out of
the vehicle, Still could smell an “[o]verwhelmingly strong”
odor of alcohol on his breath. Pester initially refused to give
a breath sample, but Still eventually was able to get Pester
to perform a preliminary breath test, which showed a result
of .126. After Pester failed field sobriety tests, Still arrested
Pester for DUI.
Still transported Pester to the Scotts Bluff County correc-
tional facility. Still began preparations to administer a post­
arrest chemical test of Pester’s breath, and he read a postarrest
chemical test advisement form to Pester. When Still asked
Pester to sign the form, Pester told Still that he would not sub-
mit to the chemical test of his breath.
The State charged Pester in county court with DUI, in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), and refusal
to submit to a chemical test, in violation of Neb. Rev. Stat.
§ 60-6,197 (Cum. Supp. 2014). Both were charged as second
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offenses. Pester filed a motion to quash the charge of refusal
to submit to a chemical test. Pester also filed a motion to sup-
press evidence obtained as a result of his arrest.
In the motion to quash, Pester asserted that the charge of
refusal to submit to a chemical test pursuant to § 60-6,197 was
“unconstitutional and in violation of the Fourth and Fourteenth
Amendment[s] of the U.S. Constitution and [art. I,] § 7 of
the Nebraska Constitution.” After a hearing in which Pester
argued, inter alia, that § 60-6,197, criminalizing refusal of a
chemical test, violated his constitutional right to refuse con-
sent to a search, the county court overruled Pester’s motion
to quash.
In the motion to suppress, Pester asserted that his arrest and
search were not based on “reasonable and articulable suspi-
cion that a crime had been committed or was about to be com-
mitted.” Still testified at a hearing on the motion to suppress.
At the end of the hearing, Pester’s counsel stated that he did
not take issue with the “stop or the initial contact” and that
Still did not do anything improper by checking out the vehicle
in the lot or the person sleeping inside the vehicle. Pester’s
counsel argued instead that “this rises to the level of an illegal
arrest for DUI, an illegal investigation for DUI, and doesn’t
rise to the level of probable cause.” He generally asserted
that because the area where Pester was parked was “not open
to public access,” Pester could not have committed DUI, and
that therefore it was improper for Still to arrest him for DUI
and to require him to submit to a chemical test. In its order
overruling Pester’s motion to suppress, the county court stated
that the State presented evidence that Pester “was in a parking
lot open to public access . . . , he was in control of a motor
vehicle, the officer noted multiple signs of alcohol consump-
tion, and [Pester] failed field sobriety tests.”
At the jury trial, the State presented evidence, including
Still’s testimony. After the State rested, Pester moved for a
“directed verdict.” He generally argued that the State failed
to prove DUI, because it failed to present evidence that he
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was on private property which was open to public access.
The county court overruled Pester’s motion. Pester presented
evidence in his defense, including his own testimony to the
general effect that he did not begin drinking until after he
had parked his vehicle in the lot and that he did not drive the
vehicle after he began drinking. On cross-examination, Pester
admitted that he was drunk when Still found him, that he was
sitting in the driver’s seat with the keys in the ignition and
was touching the steering wheel, and that he was sure that
Still saw the brake lights on his vehicle illuminate when Still
drove by the lot. After he rested his defense, Pester renewed
his “motion for a directed verdict,” and the court again over-
ruled the motion.
The jury found Pester guilty of DUI and refusal to submit
to a chemical test. After an enhancement hearing, the county
court found that both convictions were second offenses, and it
later sentenced Pester on both convictions.
Pester appealed his convictions and sentences to the dis-
trict court. He assigned as error the county court’s overruling
of his motion to quash and his motion to suppress. He also
asserted that there was insufficient evidence to support his
convictions, that the county court improperly enhanced the
refusal conviction, and that the county court imposed exces-
sive sentences. The district court rejected Pester’s arguments
regarding the motion to quash, the motion to suppress, insuf-
ficiency of the evidence, and enhancement. With regard to
sentencing, the district court concluded that the sentence for
DUI, second offense, was not excessive; however, the dis-
trict court noted that the State conceded that the county court
improperly imposed a sentence for the refusal conviction
as a Class I misdemeanor rather than as a Class W misde-
meanor. The district court therefore affirmed both convic-
tions, the enhancement of both counts, and the sentence for
DUI, but it remanded the cause for resentencing on the
refusal conviction.
Pester appeals the district court’s order.
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STATE v. PESTER
Cite as 294 Neb. 995
ASSIGNMENTS OF ERROR
Pester claims, restated, that the district court erred when
it (1) affirmed the order overruling his motion to quash the
charge of refusal to submit to a chemical test, (2) affirmed the
order overruling his motion to suppress, and (3) concluded
that there was sufficient evidence to support his convictions.
Pester does not assign error to the district court’s conclusions
regarding enhancement and sentencing.
STANDARDS OF REVIEW
[1,2] 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. Kleckner, 291 Neb. 539,
867 N.W.2d 273 (2015). Both the district court and a higher
appellate 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 arbi-
trary, capricious, nor unreasonable. Id. But we independently
review questions of law in appeals from the county court.
See id.
[3] Regarding questions of law presented by a motion to
quash, an appellate court is obligated to reach a conclusion
independent of the determinations reached by the trial court.
State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
[4] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. Milos, ante p. 375, 882 N.W.2d
696 (2016).
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STATE v. PESTER
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[5] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Gonzales, ante p. 627, 884
N.W.2d 102 (2016).
ANALYSIS
The District Court Did Not Err When It
Affirmed the Order of the County Court
Overruling Pester’s Motion to Quash
Charge of Refusing to Submit to a
Chemical Test of His Breath.
Pester first claims that the district court erred when it
affirmed the county court’s order overruling his motion to
quash the charge of refusal to submit to a chemical test. Pester
had argued that the charge of refusal to submit to a chemi-
cal test pursuant to § 60-6,197 was unconstitutional and in
violation of his federal and state constitutional rights to be
free of unreasonable searches and seizures. Because Pester
was asked to give a breath sample, we conclude, based on the
U.S. Supreme Court’s recent decision regarding warrantless
breath tests, that the county court did not err when it overruled
Pester’s motion to quash and that the district court did not err
when it affirmed that order.
[6] As we noted in State v. Cornwell, ante p. 799, 884
N.W.2d 722 (2016), the U.S. Supreme Court recently held in
Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160,
195 L. Ed. 2d 560 (2016), that a warrantless breath test
administered as a search incident to a lawful arrest for DUI
does not violate the Fourth Amendment’s prohibition against
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unreasonable searches and seizures. The Court in Birchfield
made a distinction between breath tests and blood tests and
determined that breath tests do not implicate significant pri-
vacy concerns. The Court stated that because “the physical
intrusion is negligible,” “breath tests are capable of revealing
only one bit of information, the amount of alcohol in the sub-
ject’s breath,” and that the giving of a breath sample is “not
an experience that is likely to cause any great enhancement in
the embarrassment that is inherent in any arrest.” 136 S. Ct.
at 2176-77. In the Birchfield opinion, the Court decided three
cases, one of which involved a defendant who was criminally
prosecuted pursuant to a statute similar to § 60-6,197 for refus-
ing a warrantless breath test: State v. Bernard, 859 N.W.2d
762 (Minn. 2015). With respect to the breath test case, the
Court in Birchfield concluded that because the breath test was
a permissible search incident to a lawful arrest for DUI, “the
Fourth Amendment did not require officers to obtain a warrant
prior to demanding the test, and [the defendant] had no right to
refuse it.” 136 S. Ct. at 2186.
In Cornwell, we rejected the defendant’s facial challenge to
§ 60-6,197. Based on Birchfield, we determined that warrant-
less breath tests do not run afoul of the Fourth Amendment,
and we further determined that warrantless breath tests do not
run counter to Neb. Const. art. I, § 7, which we interpreted
to offer no more protection than that offered by the U.S.
Constitution. The defendant in Cornwell had been directed
to take a breath test; accordingly, we in effect concluded that
there was a set of circumstances as to which § 60-6,197 was
not unconstitutional and that therefore the defendant’s facial
challenge failed.
Pester also made a challenge to the charge of refusal of a
chemical test directed at § 60-6,197. Based on our holding in
Cornwell, we conclude that Pester’s challenge similarly fails.
Because Pester had no constitutional right to refuse the breath
test, § 60-6,197 is not unconstitutional as to breath tests and it
was not improper for the State to prosecute him for refusing
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the breath test pursuant to § 60-6,197. For completeness, we
note that both this case and Cornwell involved refusal of
breath tests, and therefore we are not required to consider
the validity of § 60-6,197 as it pertains to refusal of a blood
test. Because Pester’s constitutional challenge to § 60-6,197
and the corresponding charge of refusal of a chemical test of
his breath is without merit, we conclude that the county court
did not err when it overruled Pester’s motion to quash and
that the district court did not err when it affirmed the county
court’s order.
The District Court Did Not Err When It
Affirmed the Order of the County Court
Overruling Pester’s Motion to
Suppress Evidence Obtained
as Result of Arrest.
Following the Court’s filing of Birchfield, we ordered addi-
tional briefing regarding the application of Birchfield to the
present case. In Birchfield, the Court specified that a warrant-
less breath test may be administered as a search incident to a
lawful arrest for DUI. In his supplemental brief, Pester gener-
ally argues that it was improper to criminalize his refusal of the
breath test, because he was not driving on a public highway,
his arrest was not lawful, and therefore he was not required to
submit to the test. Pester’s new arguments, although ostensibly
directed to the motion to quash, are aimed at whether his arrest
was lawful and are better considered with respect to Pester’s
claim regarding the motion to suppress.
Pester claims that the district court erred when it affirmed
the county court’s order overruling his motion to suppress evi-
dence obtained as a result of his arrest for DUI. In the lower
courts, Pester had argued that Still lacked probable cause to
arrest him for DUI and to require him to give a breath sample
in connection with that arrest. As explained below, because
there was probable cause for Pester’s arrest for DUI, we
conclude that the county court did not err when it overruled
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Pester’s motion to suppress and that the district court did not
err when it affirmed that order.
[7-10] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individ­
uals against unreasonable searches and seizures by the state.
State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014). An
arrest constitutes a seizure that must be justified by probable
cause to believe that a suspect has committed or is commit-
ting a crime. Id. Probable cause is a flexible, commonsense
standard that depends on the totality of the circumstances. Id.
We determine whether probable cause existed under an objec-
tive standard of reasonableness, given the known facts and
circumstances. Id.
Pursuant to § 60-6,196(1)(a), it is unlawful “to operate or
be in the actual physical control of any motor vehicle . . .
[w]hile under the influence of alcoholic liquor or of any drug.”
In addition, Neb. Rev. Stat. § 60-6,108(1) (Reissue 2010)
provides that § 60-6,196 “shall apply upon highways and any-
where throughout the state except private property which is
not open to public access.” Although Pester does not dispute
that Still had probable cause to think that he was “under the
influence of alcoholic liquor,” as we understand it, he con-
tends that he was not operating a motor vehicle and that, in
any event, he was on private property, and therefore abiding
by the law.
[11] To the extent that Pester contends that he was not
“operating or in actual physical control of a motor vehicle,”
we note that being in “actual physical control” is distinct from
“operating” a motor vehicle and is interpreted broadly “to
address the risk that a person not yet operating a motor vehicle
might begin operating that vehicle with very little effort or
delay.” State v. Rask, ante p. 612, 623, 883 N.W.2d 688, 697
(2016). In the present case, Still testified that he saw the brake
lights of Pester’s vehicle flash and that when he approached
the vehicle, he saw Pester in the driver’s seat with the keys in
the ignition. Still further testified that when he asked Pester
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to roll down the window, Pester turned the key in the ignition
and rolled down a power window. These observations gave
Still probable cause to think that Pester could begin operating
the vehicle with very little effort or delay and that therefore he
was in actual physical control of the vehicle.
Pester’s main argument is that he was on “private property
which is not open to public access” and that therefore Still did
not have probable cause to think that § 60-6,196 applied. He
asserts that the portion of the parking lot upon which he was
parked was the private property of the farm implement dealer-
ship, and he claims that it was not open to public access. He
further indicates that he was parked where customers of the
dealership would not normally park and that the dealership
was not open for business at the time Still found him. Pester
directs our attention to the record wherein Still stated that part
of the reason he investigated the presence of the vehicle in
the lot at that time of night was to determine whether some-
one was trespassing. Pester argues that because he could not
have been trespassing unless he was on private property, it is
inconsistent to conclude both that a trespass may have occurred
while also maintaining that Still had probable cause to think
Pester was in a place with public access. We do not agree with
Pester’s contention.
With regard to whether private property is open to public
access, in State v. Prater, 268 Neb. 655, 658, 686 N.W.2d 896,
898 (2004), when applying a city ordinance with language sim-
ilar to § 60-6,108, we stated that “the phrase ‘open to public
access’ means that the public has permission or the ability to
enter.” In Prater, we determined that an apartment complex’s
parking lot was open to public access because, even though a
sign indicated that the lot was private, the lot was also used
by maintenance workers and guests of residents. Similarly, in
State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014), we found
probable cause for an arrest when the defendant’s vehicle was
found parked on a paved area between the sidewalk and the
street in front of an apartment complex, in part because the
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arresting officer testified to his knowledge that both residents
and nonresidents of the apartment complex used the area
for parking.
In contrast to the foregoing cases, in State v. McCave, 282
Neb. 500, 516, 805 N.W.2d 290, 307 (2011), we determined
that a residential driveway was not open to public access,
because it was open only to those who had express or implied
permission of the owner, members of the general public had
no right or implied permission to use the driveway, and mem-
bers of the general public did not have “the ‘ability to enter’
the driveway in the same sense that a member of the public
might drive through or use a private parking lot by custom.”
We noted in McCave that the intent behind § 60-6,196 was “to
prohibit intoxicated persons from operating or being in control
of a vehicle even on private property if other motorists might
access that property and be endangered by their conduct.” 282
Neb. at 515, 805 N.W.2d at 307.
In the present case, Still testified that the lot where Pester
parked was bordered by three public highways, that access to
the lot was solely by one of three public highways, that there
were no gates or locks on the entrances, and that the general
public could drive onto the lot in order to enter the dealership.
Despite Pester’s argument that customers would not normally
park in this location, Still’s testimony shows that the general
public was able to access the area; therefore, the area was
“private property” “open to public access,” § 60-6,108(1), and
the concerns of § 60-6,196 were implicated.
With respect to the private character of the location where
Still encountered Pester, as the foregoing analysis illustrates,
the location can be both private property giving rise to trespass
concerns and “private property . . . open to public access,”
§ 60-6,108(1), giving rise to concerns about “preserving the
safety of . . . public highways.” Mackey v. Montrym, 443 U.S.
1, 17, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979). We find no
inconsistency amongst Still’s initial concern for the protec-
tion of private property against trespass, his welfare check of
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Pester’s vehicle curiously parked with a flash of brake lights
in the middle of the night at a closed place of business, and
his concern for the safety of other motorists. Therefore, a find-
ing that Pester’s vehicle was on private property with public
access is not inconsistent with Still’s justification for the ini-
tial investigation of Pester’s vehicle.
We conclude that the county court did not err when it deter-
mined Still had probable cause to arrest Pester for DUI and
when it therefore overruled Pester’s motion to suppress and
that the district court did not err when it affirmed the county
court’s order.
The District Court Did Not Err When
It Determined That the Evidence
Was Sufficient to Support
Pester’s Convictions.
Finally, Pester claims that the district court erred when it
concluded that there was sufficient evidence to support his
convictions. We conclude that the district court did not err in
this regard.
Pester’s argument that the evidence was not sufficient to
support his convictions mirrors his argument with regard to the
motion to suppress—that is, that the evidence did not support
a finding that he was on private property with public access.
As discussed above, Still’s observations regarding the parking
lot on which Pester was found support a finding that Pester
was on private property with public access. Still’s testimony
regarding his observations also provided sufficient evidence
for the jury to find that Pester was on private property with
public access, that Pester operated or was in actual physi-
cal control of his vehicle, and that he was guilty of DUI and
refusal to submit to a chemical test. Viewing the evidence in
the light most favorable to the prosecution, a rational jury
could have found the essential elements of the crimes beyond
a reasonable doubt. See State v. Gonzales, ante p. 627, 884
N.W.2d 102 (2016). We conclude therefore that the district
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court did not err when it determined that there was sufficient
evidence to support Pester’s convictions.
CONCLUSION
We conclude that the county court did not err when it over-
ruled Pester’s motion to quash and his motion to suppress and
that therefore the district court did not err when it affirmed
such rulings. We further conclude that the district court did not
err when it determined that there was sufficient evidence to
support Pester’s convictions. We therefore affirm the district
court’s order in its entirety.
A ffirmed.