State v. Rodriguez

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CONCLUSION
From our de novo review of the record, we conclude that
the revocation and cease-and-desist order imposed by the PSC
was excessive. We do not make light of Telrite’s failure to
use the correct form a mere 6 weeks after the PSC ordered it
to do so. Nor do we express an opinion whether lesser sanc-
tions are justified. But, considering the low participation rate
of Nebraska households in the Lifeline program and the pur-
poses of both the Telecommunications Act and the NTUSFA,
revocation and a cease-and-desist order were not warranted
by Telrite’s failure to use the correct form during a 1-day
event. Accordingly, we reverse, and remand to the PSC for
further proceedings.
R eversed and remanded for
further proceedings.
Heavican, C.J., participating on briefs.
State of Nebraska, appellee, v.
Lucio A. Rodriguez III, appellant.
___ N.W.2d ___
Filed August 29, 2014. No. S-13-062.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding 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 inde-
pendently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.
3. Constitutional Law: Investigative Stops: Search and Seizure: Probable
Cause. The Fourth Amendment guarantee of the right to be free of unreasonable
searches and seizures requires that an arrest be based upon probable cause and
limits investigatory stops to those made upon an articulable suspicion of crimi-
nal activity.
4. Police Officers and Sheriffs: Investigative Stops: Probable Cause. In deter-
mining whether there is reasonable suspicion for an officer to make an investiga-
tory stop, the totality of the circumstances must be taken into account.
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5. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
Petition for further review from the Court of Appeals, Inbody,
Chief Judge, and Moore and Riedmann, Judges, on appeal
thereto from the District Court for Scotts Bluff County, Leo
Dobrovolny, Judge. Judgment of Court of Appeals reversed,
and cause remanded with directions.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Lucio A. Rodriguez III appealed his conviction in the dis-
trict court for Scotts Bluff County for driving under the influ-
ence (DUI) with a concentration of more than .15 of 1 gram of
alcohol per 210 liters of breath, third offense, to the Nebraska
Court of Appeals. He claimed that the district court erred when
it (1) overruled his motion to suppress evidence obtained from
a traffic stop that he asserted was based on an anonymous tip
without corroboration and (2) overruled his motion for a mis-
trial based on the State’s failure to dismiss another pending
charge which the State knew prior to trial it could not prove.
The Court of Appeals affirmed Rodriguez’ conviction and sen-
tence. We granted his petition for further review. We reverse
the decision of the Court of Appeals and remand the cause
to the Court of Appeals with directions to reverse Rodriguez’
DUI conviction and remand the cause to the district court for
a new trial.
II. STATEMENT OF FACTS
In its memorandum opinion, the Court of Appeals described
the facts of this case for which we find support in the record
as follows:
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On April 28, 2012, the Scotts Bluff County 911 emer-
gency dispatch center received notification of a possible
disturbance near a rental car business. When the dispatch
center communicated this information to Officer Aaron
Kleensang, the dispatcher noted that the caller stated that
he had been pushed out of a moving vehicle. The dis-
patcher also stated that the caller identified the vehicle as
a green GMC Envoy and stated that this vehicle left the
area heading westbound on Highway 26.
At the time Kleensang received the dispatch, he was
near the vicinity of the reported activity. [He did not see
the caller at the rental car business, however, he soon]
observed a vehicle matching the description he received
from the dispatch center traveling westbound on Highway
26. Kleensang made two turns, followed the vehicle onto
17th Avenue and 20th Street, and observed it stop on
its own. The vehicle moved to the side of the road and
parked before Kleensang activated his patrol car’s emer-
gency lights. Kleensang testified that he activated the
lights to signal the driver that Kleensang wanted to talk
with him.
Kleensang approached the driver and began to question
him about the reported disturbance. Rodriguez was identi-
fied as the driver. Kleensang had other officers in the area
make contact with the caller, and the caller was eventu-
ally brought to a nearby location. No other evidence was
adduced about the caller, and there was apparently no
further action taken in regard to the disturbance. While
discussing the reported disturbance with Rodriguez,
Kleensang made several initial observations. He detected
a strong odor of alcohol and noticed that Rodriguez had a
flushed face, slurred speech, and bloodshot, watery eyes.
After administering three field sobriety tests, Kleensang
believed Rodriguez was heavily intoxicated. Kleensang
arrested Rodriguez following a preliminary breath test and
transported him to the detention center in Scotts[b]luff,
Nebraska. Rodriguez then submitted to a “DataMaster”
test at the detention center, and his breath tested at .226
grams of alcohol per 210 liters of breath.
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During the booking process, Rodriguez’ wallet was
taken from him and inventoried. Kleensang testified this
is standard procedure whenever he takes someone to jail.
When the wallet was opened, two clear plastic baggies
containing apparent controlled substances were discov-
ered at the bottom. Preliminary tests were conducted
on these substances at the jail. Subsequent tests at the
Nebraska State Patrol crime laboratory revealed that one
substance was cocaine and that the other substance was
not a controlled substance.
On May 10, 2012, the State filed an information charg-
ing Rodriguez with DUI with a blood alcohol level greater
than .15, third offense; possession of methamphetamine;
and possession of cocaine. Rodriguez moved to suppress
any evidence gathered from the stop and subsequent
search, contending that the stop was not based on reason-
able and articulable suspicion that a crime had been com-
mitted or was about to be committed.
The district court overruled the motion to suppress. In
its order, the court noted that the stop was justified under
two separate analyses. First, the court concluded that the
stop could be considered to be a “‘first-tier’ contact”
for which no Fourth Amendment protections apply. The
court found Kleensang had not used emergency lights
or a siren to cause Rodriguez to stop. Thus, the court
determined that a reasonable person would not have
believed he was required to stop or that his movement
was impeded in any way before Kleensang activated
his patrol car’s emergency lights. Second, analyzing
the stop as a “‘tier-two’” encounter, the court deter-
mined reasonable suspicion existed for the stop because
Kleensang had corroborated the information from the
dispatch center.
On December 18, 2012, the case proceeded to a jury
trial. Despite having received laboratory reports demon-
strating that Rodriguez did not possess methamphetamine
on the night he was arrested, the State did not dismiss the
charge in advance of trial. Rodriguez’ motions for mistrial
based on this failure to dismiss were denied, but the court
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entered a directed verdict in his favor on the possession
of methamphetamine charge at the close of the State’s
evidence. The jury convicted Rodriguez of DUI, but
acquitted him of the possession of cocaine charge. The
court sentenced Rodriguez to 60 days in jail and a term of
probation, suspended his license for 5 years, and ordered
him to pay court costs.
State v. Rodriguez, No. A-13-062, 2013 WL 6246792, *1-2
(Neb. App. Dec. 3, 2013) (selected for posting to court
Web site).
Rodriguez appealed his DUI conviction to the Court of
Appeals. He claimed that the district court erred when it (1)
analyzed the traffic stop as a first-tier police contact; (2) over-
ruled his motion to suppress, despite a lack of corroboration
of the anonymous tip; and (3) overruled his motion for a mis-
trial based on the State’s failure to dismiss the methamphet-
amine charge.
The Court of Appeals affirmed Rodriguez’ conviction and
sentence. With regard to the assignment of error related to a
first-tier police contact, the Court of Appeals noted that the
State did little to challenge Rodriguez’ argument that he was
seized when Kleensang activated his patrol car’s lights and that
the contact was therefore a second-tier traffic stop requiring
reasonable suspicion. The Court of Appeals determined that
the State had conceded that the contact was a traffic stop and
concluded that because the district court had alternatively con-
cluded that there was reasonable suspicion to support a traffic
stop, it was unnecessary for the Court of Appeals to address the
first assignment of error related to a first-tier stop.
With regard to whether there was reasonable suspicion for
a traffic stop, the Court of Appeals cited Nebraska precedent
and concluded that the content of the dispatch and Kleensang’s
observations consistent with the dispatch gave Kleensang a
reasonable suspicion to justify the traffic stop.
With regard to Rodriguez’ motion for a mistrial, the Court
of Appeals disapproved of the county attorney’s failure to
dismiss the methamphetamine charge prior to trial and stated
that such conduct was “improper in the course of conducting a
fair trial because it may tend to expose a jury to irrelevant and
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prejudicial matters.” State v. Rodriguez, 2013 WL 6246792 at
*5. Although it disapproved of the prosecution’s conduct, the
Court of Appeals determined that such conduct did not reach
a level requiring the declaration of a mistrial. The Court of
Appeals concluded that the district court did not abuse its dis-
cretion when it overruled Rodriguez’ motion for a mistrial. The
Court of Appeals affirmed. Id.
We granted Rodriguez’ petition for further review.
III. ASSIGNMENTS OF ERROR
On further review, Rodriguez claims, restated, that the Court
of Appeals erred when it (1) determined that the district court
did not err when it overruled Rodriguez’ motion to suppress
and (2) determined that the district court did not err when it
overruled his motion for a mistrial based on the State’s pur-
suit of the methamphetamine charge after it knew it could not
prove the charge.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination. State v. Schuller, 287 Neb. 500,
843 N.W.2d 626 (2014).
V. ANALYSIS
1. Court of Appeals Erred When It
Affirmed Overruling of Rodriguez’
Motion to Suppress
Rodriguez first claims that the Court of Appeals erred when
it determined that the traffic stop was justified and that the
motion to suppress was properly overruled. We conclude on the
record of admitted evidence before us that the anonymous tip
in this case did not justify the stop. Therefore, the district court
erred when it overruled Rodriguez’ motion to suppress and the
Court of Appeals erred when it affirmed this ruling.
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[2-4] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures. State v. Dalland, 287 Neb.
231, 842 N.W.2d 92 (2014). The Fourth Amendment guarantee
of the right to be free of unreasonable searches and seizures
requires that an arrest be based upon probable cause and limits
investigatory stops to those made upon an articulable suspi-
cion of criminal activity. State v. Wollam, 280 Neb. 43, 783
N.W.2d 612 (2010). In determining whether there is reason-
able suspicion for an officer to make an investigatory stop,
the totality of the circumstances must be taken into account.
See id.
In the present case, the Court of Appeals first addressed
Rodriguez’ claim that the district court erred when it deter-
mined that the contact between Kleensang and Rodriguez was
a “first-tier” contact that did not trigger Fourth Amendment
protections. Because the State conceded on appeal that the
contact was a “second-tier” traffic stop, the Court of Appeals
reviewed the district court’s alternative determination that there
was reasonable suspicion to support a traffic stop. Because nei-
ther party complains of this determination on further review,
we accept that the contact was a traffic stop. Thus, we review
the lower courts’ determinations that the content of the dispatch
plus Kleensang’s observation of Rodriguez’ vehicle in the loca-
tion indicated in the dispatch provided reasonable suspicion to
justify the traffic stop.
Because the stop was based on information supplied by a
caller, the reliability of such information is key to determining
whether there was reasonable suspicion. As discussed below,
Fourth Amendment case law indicates that an important factor
in assessing the reliability of such information is the distinc-
tion between whether the person supplying the information is
known to law enforcement or the information comes from an
anonymous source.
Both the district court and the Court of Appeals treated the
call in this case as an anonymous tip. Upon our review of the
record, we note that there was no evidence received in the
district court that indicates the name of the caller was known
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to law enforcement at the time Kleensang initiated the traffic
stop. The State acknowledges in its appellate briefs that no evi-
dence was received by the district court establishing the iden-
tity of the caller prior to the stop, and the State suggests that
the call be treated as an anonymous tip for purposes of Fourth
Amendment analysis. We agree.
Although the district court and the Court of Appeals both
treated the caller as anonymous, neither court relied on certain
relevant precedent from the U.S. Supreme Court regarding
anonymous tips in the context of Fourth Amendment analysis.
Both relied on this court’s opinion in State v. Bowley, 232
Neb. 771, 442 N.W.2d 215 (1989). In Bowley, we noted that
the factual basis for a traffic stop need not arise from the offi-
cer’s personal observation, but may be supplied by informa-
tion acquired from another person. We further noted that when
the factual basis is supplied by another, the information must
contain sufficient indicia of reliability, and we stated that a
citizen informant who has personally observed the commission
of a crime is presumptively reliable. We concluded that the
investigatory stop in Bowley was reasonable, and in making
this determination, we noted that “[w]hile the informants were
unidentified until after [the defendant] was stopped, they did
remain and identify themselves to police.” 232 Neb. at 773,
442 N.W.2d at 217.
Based on its reading of Bowley, the Court of Appeals
rejected Rodriguez’ argument to the effect that, in the
absence of identification of the caller, there was not suf-
ficient indicia of the caller’s reliability to support the stop.
The Court of Appeals recited that the caller reported having
been pushed from a moving vehicle, and it therefore rea-
soned that the caller should be treated as a citizen informant
whose personal observation of the commission of a crime
was presumptively reliable under Bowley. The Court of
Appeals appeared to determine that the caller’s reliability
was enhanced through corroboration when “Kleensang per-
sonally observed a vehicle which matched the description
in the dispatch and was heading in the direction indicated
by the caller to dispatch.” State v. Rodriguez, No. A-13-062,
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2013 WL 6246792, *4 (Neb. App. Dec. 3, 2013) (selected for
posting to court Web site).
Since our decision in Bowley in 1989, the U.S. Supreme
Court has decided key Fourth Amendment cases involving
anonymous tips but we have not had occasion to discuss these
cases. We therefore review the development of relevant Fourth
Amendment law regarding anonymous tips since we decided
Bowley before applying such law to this case.
(a) U.S. Supreme Court Precedent
Regarding Anonymous Tips in
Fourth Amendment Cases
Although the caller in the instant case did not supply pre-
dictive behavior of the defendant, the district court cited the
case of Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110
L. Ed. 2d 301 (1990), as support of its conclusion that “the
anonymous tip was sufficiently corroborated to furnish reason-
able suspicion.” In White, the U.S. Supreme Court determined
that an anonymous tip from a telephone caller provided jus-
tification for a traffic stop when certain details provided by
the caller were corroborated by police observation. The caller
stated that the defendant would leave a particular location at
a particular time in a particular vehicle, that she would go to
another particular location, and that she would be in possession
of cocaine. Officers’ personal observations corroborated that
the defendant left the general location during the general time-
frame indicated by the caller, that she got into the particular
vehicle identified by the caller, and that she proceeded on the
most direct route toward the location indicated by the caller.
The officers stopped the defendant’s vehicle prior to reaching
that location.
In considering whether the stop in White was justified, the
U.S. Supreme Court noted that the caller’s ability to predict
the defendant’s future behavior demonstrated inside infor-
mation and a special familiarity with her affairs which, the
Court determined, gave the police reason to believe that the
caller was also likely to have access to information about her
illegal activity. The Court described the decision in White as
“a close case” but concluded that “under the totality of the
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circumstances the anonymous tip, as corroborated, exhibited
sufficient indicia of reliability to justify the investigatory stop.”
496 U.S. at 332.
Neither the district court nor the Court of Appeals in this
case cited Florida v. J. L., 529 U.S. 266, 120 S. Ct. 1375, 146
L. Ed. 2d 254 (2000), in which the Court held that an anony-
mous tip lacked sufficient indicia of reliability to establish
reasonable suspicion for an investigatory stop. The anonymous
caller in J. L. reported that “a young black male standing at
a particular bus stop and wearing a plaid shirt was carrying a
gun.” 529 U.S. at 268. Officers were instructed to respond to
the tip, and when they arrived at the indicated location, they
saw three black males, one of whom was wearing a plaid shirt.
They made no other observation that would indicate illegal
activity; nevertheless, one of the officers approached the man,
told him to put his hands up on the bus stop, frisked him, and
seized a gun from his pocket.
The Court in J. L. compared the facts of the case to those
in White and determined that “[t]he tip in [J. L.] lacked the
moderate indicia of reliability present in White and essential to
the Court’s decision in that case.” 529 U.S. at 271. The Court
noted that the call in J. L. “provided no predictive information”
as was present in White. 529 U.S. at 271. The Court in J. L.
rejected Florida’s argument that the tip was reliable because
the defendant met the anonymous informant’s description of a
particular person at a particular location; the Court stated that
“[s]uch a tip . . . does not show that the tipster has knowledge
of concealed criminal activity” and that “reasonable suspicion
. . . requires that a tip be reliable in its assertion of illegality,
not just in its tendency to identify a determinate person.” 529
U.S. at 272. The Court in J. L. described its decision in White
as “borderline” and stated that “[i]f White was a close case on
the reliability of anonymous tips, this one surely falls on the
other side of the line.” 529 U.S. at 271.
After the Court of Appeals’ decision in this case, and after
oral argument on further review to this court, the U.S. Supreme
Court filed another opinion involving the Fourth Amendment
and anonymous tips, Navarette v. California, ___ U.S. ___,
134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). At this court’s
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direction, the parties filed supplemental briefs. In Navarette,
the U.S. Supreme Court concluded that under the totality of
the circumstances in that case, an anonymous tip regarding
reckless driving gave police reasonable suspicion that justified
a traffic stop. In Navarette, an unidentified 911 emergency dis-
patch caller reported that another vehicle had run her vehicle
off the road. The caller gave her location and a description
of the other vehicle, including the license plate number. A
police officer in the reported area saw a vehicle meeting the
description and, without personally observing reckless driving
or other violation of law, pulled the defendant’s vehicle over.
A second officer, who had separately responded to the report,
also arrived on the scene. As a result of the stop, the officers
found 30 pounds of marijuana in the vehicle, which evidence
the defendant sought to suppress on the basis that it had been
obtained as the result of a traffic stop that was not supported
by reasonable suspicion.
Referring to its decisions in Alabama v. White, 496 U.S.
325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), and Florida
v. J. L., supra, the U.S. Supreme Court stated that the initial
question in its Fourth Amendment analysis was whether the
anonymous tip was reliable. Under the facts in Navarette, the
immediate focus was whether the call was sufficiently reliable
to credit the allegation that the defendant’s vehicle had run
the caller off the road. The majority in Navarette determined
that due to certain factors, the call did bear adequate indicia
of reliability. The factors on which the majority in Navarette
relied were: (1) eyewitness knowledge, i.e., the caller necessar-
ily claimed to have personally observed the alleged dangerous
driving; (2) contemporaneous reporting, i.e., the caller reported
the incident soon after it occurred; and (3) the caller’s use of
the 911 emergency dispatch system, which system allows for
identifying and tracing callers, thus providing some safeguard
against false reports.
After determining that the anonymous tip was a reliable
report of having been run off the road, the majority in
Navarette stated that “[e]ven a reliable tip will justify an
investigative stop only if it creates reasonable suspicion that
‘criminal activity may be afoot.’” 134 S. Ct. at 1690. The
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majority therefore found it necessary to determine whether
the anonymous caller’s tip created a “reasonable suspicion
of an ongoing crime such as drunk driving as opposed to
an isolated episode of past recklessness.” Id. The majority
concluded that the reported behavior of the defendant driver,
viewed from an objective standpoint, amounted to a reason-
able suspicion of drunk driving. The majority in Navarette
stated that rather than a conclusory allegation of drunk or
reckless driving, the caller alleged a specific and dangerous
result of the driver’s conduct which resembled “paradigmatic
manifestations of drunk driving.” 134 S. Ct. at 1691. In con-
cluding that there was reasonable suspicion to justify the traf-
fic stop in Navarette, the majority acknowledged that, like the
decision in White, the decision was a “‘close case.’” 134 S.
Ct. at 1692.
Justice Scalia, joined by three other justices, dissented in
Navarette. The dissent found fault with the factors relied on by
the majority as indicia of reliability. With regard to the caller’s
report that the defendant’s vehicle had run her vehicle off the
road, the dissent stated that “the police had no reason to credit
that charge and many reasons to doubt it, beginning with the
peculiar fact that the accusation was anonymous.” Navarette v.
California, ___ U.S. ___, 134 S. Ct. 1683, 1692, 188 L. Ed. 2d
680 (2014) (Scalia, J., dissenting; Ginsburg, Sotomayor, and
Kagan, JJ., join).
The dissent in Navarette did agree with the majority that
the traffic stop “required suspicion of an ongoing crime, not
merely suspicion of having run someone off the road earlier.”
134 S. Ct. at 1695. However, the dissent maintained that the
caller’s report, at best, indicated careless or reckless driving
rather than drunk driving and that “driving while being a care-
less or reckless person, unlike driving while being a drunk
person, is not an ongoing crime.” Id.
(b) Application of U.S. Supreme Court
Precedent to This Case
We apply the above-discussed U.S. Supreme Court prec-
edent to the facts of this case. We note first that the district
court relied on White to conclude that the anonymous tip in
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this case was sufficiently corroborated to supply reasonable
suspicion for the traffic stop. This reliance was misplaced. The
information supplied by the caller in this case is more similar
to the corroborated information that the Court concluded in
Florida v. J. L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d
254 (2000), did not supply reasonable suspicion. The informa-
tion provided by the caller and corroborated by Kleensang
in this case was merely a description of the vehicle and its
general location. There was no prediction of future behavior
as was present in Alabama v. White, 496 U.S. 325, 110 S.
Ct. 2412, 110 L. Ed. 2d 301 (1990). Under J. L., corrobora-
tion of a description of the defendant and the defendant’s
general location did not supply reasonable suspicion; instead,
the Court stated that the caller’s information regarding illegal
activity needed to be reliable.
In Navarette and White, the investigatory stops were
approved, but both were seen as “close cases” by the U.S.
Supreme Court. Because there are important differences in
the totality of the circumstances between the present case and
relevant precedent, we reach a different outcome. In particular,
although the indicia of reliability in this case bear a similarity
to those noted in Navarette, we believe there are two impor-
tant factors explored below that lead to a different result: (1)
Kleensang had reason to doubt the reliability of the anonymous
caller’s report of illegal activity and (2) the anonymous caller
in this case did not report an ongoing crime.
(i) Reliability of Caller
The majority in Navarette noted the following as indicia
of reliability: (1) eyewitness knowledge, (2) contemporane-
ous reporting, and (3) the caller’s use of the 911 emergency
dispatch system. In the present case, the caller claimed eye-
witness knowledge of the event and made the call soon after
it occurred. The record also indicates that the call was made
to law enforcement through 911 or a similar emergency dis-
patch system.
Unlike the facts of Navarette, the officer in the present case
made observations that raised doubts regarding the reliability
of the caller’s report. Kleensang testified at the suppression
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hearing that before he saw Rodriguez’ vehicle, he drove past
the location where the person reported having been pushed out
of the vehicle. Upon inspection, Kleensang did not see anyone
at that location. The fact that Kleensang did not see anyone
at the location claimed by the caller was a contraindication
of reliability and weakened the value of the anonymous tip in
establishing reasonable suspicion to stop Rodriguez’ vehicle.
The anonymous tip in this case bore weaker indicia of reliabil-
ity than the tip in Navarette.
(ii) Ongoing Crime
As we have explained above, the fact that the reported crime
was seen as ongoing was critical to the outcome in Navarette v.
California, ___ U.S. ___, 134 S. Ct. 1683, 188 L. Ed. 2d 680
(2014). Even though the majority and the dissent disagreed
on whether the report of driving another vehicle off the road
indicated ongoing drunk driving, the majority and the dis-
sent agreed that the officer needed reasonable suspicion of an
ongoing crime to justify an investigatory stop. In this regard,
it has been stated that “an anonymous 911 call reporting an
ongoing emergency is entitled to a higher degree of reliability
and requires a lesser showing of corroboration than a tip that
alleges general criminality.” U.S. v. Simmons, 560 F.3d 98, 105
(2d Cir. 2009).
In the present case, the caller indicated only that he had
been pushed from the described vehicle. There was nothing in
the content of the call that indicated that the driver was driv-
ing drunk or that the driver posed a threat of public harm by
driving recklessly. The caller did not report an ongoing crime
and instead indicated an isolated past episode. The majority in
Navarette found that the anonymous caller reported an ongoing
crime, which finding was key to its decision. Such factor is not
present in this case.
(iii) Resolution
Keeping in mind that the decision in Navarette that the stop
was justified was, in the words of the Court, a “close case,”
we determine that the important differences present in the
instant case as compared to Navarette are sufficient to tip the
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reasonable suspicion analysis in the other direction. The fact
that Kleensang saw no one at the location where the caller
reported having been thrown from a vehicle created doubt as to
the anonymous caller’s reliability. Furthermore, the caller did
not report an ongoing crime, which under Navarette and other
case law is necessary to support the finding of reasonable sus-
picion justifying a traffic stop.
We conclude that on the record presented to the district
court in this case, the court erred when it determined that
there was reasonable suspicion to justify the traffic stop and
overruled Rodriguez’ motion to suppress. Therefore, the Court
of Appeals committed reversible error when it affirmed the
overruling of the motion to suppress and affirmed Rodriguez’
conviction of DUI.
(iv) Double Jeopardy Analysis
[5] Having concluded that the denial of the motion to sup-
press was reversible error, we must determine whether the
totality of the evidence admitted by the district court was suf-
ficient to sustain Rodriguez’ conviction for DUI. If it was not,
then double jeopardy forbids a remand for a new trial. State v.
Ash, 286 Neb. 681, 838 N.W.2d 273 (2013). But the Double
Jeopardy Clause does not forbid a retrial so long as the sum
of all the evidence admitted by a trial court, whether errone-
ously or not, would have been sufficient to sustain a guilty
verdict. Id.
After reviewing the record, we conclude that the evidence
presented at trial, including the evidence that should have been
suppressed, was sufficient to support the DUI conviction. As
such, we conclude that double jeopardy does not preclude a
remand for a new trial of the DUI charge. We note that there
will not be a new trial on either the possession of methamphet-
amine charge or the possession of cocaine charge, because the
methamphetamine charge was dismissed and the jury acquitted
Rodriguez of the cocaine charge.
We conclude that the Court of Appeals’ decision must be
reversed and the cause remanded to the Court of Appeals with
directions to reverse the DUI conviction and remand the cause
to the district court for a new trial.
Nebraska Advance Sheets
STATE v. RODRIGUEZ 893
Cite as 288 Neb. 878
2. Court of Appeals P roperly Disapproved of State’s
Failure to Dismiss Methamphetamine Charge P rior
to Trial But We Need Not Determine Whether
State’s Misconduct Warranted Mistrial
For his second assignment of error, Rodriguez claims the
district court erred when it overruled his motions for mistrial
based on the State’s having failed to dismiss the metham-
phetamine charge prior to trial knowing it lacked evidence
and nevertheless proceeded to comment on the charge to the
jury. We agree with the Court of Appeals’ disapproval of the
State’s conduct. However, because we have concluded above
that Rodriguez’ DUI conviction should be reversed based on
the suppression issue, we need not decide whether the State’s
misconduct warranted declaration of a mistrial.
During voir dire, it was made clear to the jury that three
counts were involved in the case and that one count of pos-
session of methamphetamine would be at issue. One juror vol-
unteered that he had “a family member that’s on meth and it’s
destroyed his life totally.” After further inquiry by the district
court, the juror was excused.
Notwithstanding the methamphetamine-related colloquy
during the voir dire of the jury, in his opening statement, the
prosecutor admitted that the State would not be able to prove
the charge of possession of methamphetamine. Rodriguez
moved for a mistrial at the end of the State’s opening state-
ment. In a conference outside the jury’s presence, the county
attorney stated that months prior to trial, he had received the
report showing that neither substance was methamphetamine.
He indicated that he had shared the report with defense coun-
sel. The county attorney stated that his failure to dismiss the
charge was “an oversight,” but he did not adequately explain
why he nevertheless commented on the methamphetamine
charge to the jury.
The district court overruled Rodriguez’ motion for a mis-
trial. The charge remained in the case during the receipt of
the State’s evidence. Thereafter, the court granted Rodriguez’
“motion for a directed verdict” on the charge of possession
of methamphetamine at the close of the State’s evidence and
Nebraska Advance Sheets
894 288 NEBRASKA REPORTS
dismissed the count. We agree with the Court of Appeals that
the State’s inaction prior to trial and its action during the pre-
liminary stages of the trial were improper because they exposed
the jury to irrelevant and prejudicial matters. The State should
have dismissed the charge promptly after it knew it could not
prove the charge, and the State had ample opportunity prior to
and on the eve of trial to do so.
In the Court of Appeals’ opinion, it concluded that the district
court did not abuse its discretion when it overruled Rodriguez’
motions for a mistrial based on the State’s improper conduct.
Because we have determined that Rodriguez’ DUI conviction
should be reversed on other grounds and because there is no
reason for the State to engage in the same conduct on remand,
it is not necessary to our disposition of this appeal to decide
whether the district court abused its discretion and should have
declared a mistrial at the first opportunity on the basis of the
State’s conduct in this trial. Notwithstanding our disapproval
of the State’s conduct on this issue, we are not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before us. See State v. Pangborn, 286
Neb. 363, 836 N.W.2d 790 (2013).
VI. CONCLUSION
We conclude that the district court erred when it overruled
Rodriguez’ motion to suppress evidence obtained as a result
of the traffic stop and that the Court of Appeals erred when
it affirmed this ruling and Rodriguez’ DUI conviction. We
reverse the decision of the Court of Appeals and remand the
cause to the Court of Appeals with directions to reverse the
DUI conviction and remand the cause to the district court for a
new trial. With regard to the State’s failure to dismiss the pos-
session of methamphetamine count prior to the trial, we share
the Court of Appeals’ disapproval of the State’s conduct. We
conclude, however, that it is not necessary for us to decide the
correctness of the lower courts’ decisions to the effect that a
mistrial was not warranted for the misconduct, because it will
not be repeated upon remand for a new trial.
R eversed and remanded with directions.
Nebraska Advance Sheets
STATE v. RODRIGUEZ 895
Cite as 288 Neb. 878
Heavican, C.J., dissenting.
I respectfully dissent from the majority’s determination that
the district court erred in overruling Rodriguez’ motion to sup-
press. I would conclude that the stop of Rodriguez’ vehicle was
supported by reasonable suspicion.
The principles of law are well established. As the U.S.
Supreme Court noted in Navarette v. California1:
The Fourth Amendment permits brief investigative
stops—such as the traffic stop in this case—when a law
enforcement officer has “a particularized and objective
basis for suspecting the particular person stopped of crim-
inal activity.” . . . The “reasonable suspicion” necessary
to justify such a stop “is dependent upon both the content
of information possessed by police and its degree of reli-
ability.” . . . The standard takes into account “the totality
of the circumstances—the whole picture.” . . . Although a
mere “‘hunch’” does not create reasonable suspicion . . . ,
the level of suspicion the standard requires is “consider-
ably less than proof of wrongdoing by a preponderance of
the evidence,” and “obviously less” than is necessary for
probable cause.
And these principles “apply with full force to investigative
stops based on information from anonymous tips.”2 While an
anonymous tip, standing alone, “‘seldom demonstrates the
informant’s basis of knowledge or veracity,’” in the right cir-
cumstances, “an anonymous tip can demonstrate ‘sufficient
indicia of reliability to provide reasonable suspicion to make
[an] investigatory stop.’”3
In my view, and considered in light of Navarette, the anony-
mous tip received by law enforcement was sufficiently reli-
able to provide law enforcement with reasonable suspicion to
stop Rodriguez.
1
Navarette v. California, ___ U.S. ___, 134 S. Ct. 1683, 1687, 188 L. Ed.
2d 680 (2014) (citations omitted).
2
Id., 134 S. Ct. at 1688.
3
Id. (citations omitted).
 Nebraska Advance Sheets
896 288 NEBRASKA REPORTS
First, the caller in this case reported that he had been pushed
out of a moving vehicle. The Court in Navaratte noted that the
caller in that case, who had reported her vehicle’s being run off
the road by a particular vehicle, “claimed eyewitness knowl-
edge” of the incident and that such lends “significant support
to the tip’s reliability.”4
In addition, the caller was able to describe the vehicle in
which he had been riding as a dark-colored GMC Envoy, and
to further report that the vehicle was heading westbound on
Highway 26. Kleensang testified that he was about 1 to 11⁄2
miles away from the location of the incident at the time of
the dispatch and that he proceeded directly to Highway 26.
Kleensang testified that about a quarter of a mile away from
the site of the incident, he observed a green GMC Envoy west-
bound on Highway 26 getting ready to exit the highway. Thus,
the distances and time involved suggest that the caller’s report
of the incident was relatively contemporaneous with the inci-
dent. The Court in Navarette noted that such a report “has long
been treated as especially reliable.”5
Furthermore, the caller here, like the caller in Navarette,
used the 911 system, or a similar dispatch system. Such lends
further reliability to the caller’s tip, because the safeguards and
identification features of the system are such that “a reasonable
officer could conclude that a false tipster would think twice
before using” it.6
I am not concerned, as the majority is, that no one was at
the place of the incident when Kleensang originally drove past
it. In my view, in this circumstance, the fact that a person who
had just been pushed out of a moving vehicle did not stay at
the scene of the incident does not affect the reliability of that
person’s report.
Nor am I concerned about any lack of additional suspicious
conduct by Rodriguez following this anonymous report. The
Court in Navarette noted that
4
Id., 134 S. Ct. at 1689.
5
Id.
6
Id., 134 S. Ct. at 1690.
Nebraska Advance Sheets
STATE v. RODRIGUEZ 897
Cite as 288 Neb. 878
the absence of additional suspicious conduct [did not]
dispel the reasonable suspicion of drunk driving. . . .
Once reasonable suspicion of drunk driving arises, “[t]he
reasonableness of the officer’s decision to stop a suspect
does not turn on the availability of less intrusive investi-
gatory techniques.” . . . This would be a particularly inap-
propriate context to depart from that settled rule, because
allowing a drunk driver a second chance for dangerous
conduct could have disastrous consequences.7
In the same way, once Kleensang had a report that an indi-
vidual had been pushed out of a moving vehicle, the failure to
follow up on that report, especially when faced with a vehicle
that matched the report’s description, defies reason and “could
have disastrous consequences.”8
I do acknowledge, of course, that this case is slightly dif-
ferent from Navarette. There, the Court noted that the caller’s
“claim that another vehicle ran her off the road . . . necessar-
ily implies that the informant knows the other car was driven
dangerously,”9 while in this case, whatever crime that occurred
as of the time Rodriguez allegedly pushed the caller out of the
vehicle was arguably over. And I would agree that the act here
is perhaps less predictive of drunk driving than the reckless
driving in Navarette.
Still, on these facts, I ultimately see no reasonable distinc-
tion between hitting another vehicle or object and pushing an
individual out of a moving vehicle. In my view, using the com-
mon sense we all hope law enforcement uses, it was reasonable
for Kleensang to conclude that a driver who had been accused
of pushing a passenger out of a moving vehicle might pose
other threats while driving.
In sum, the caller in this case used the 911 emergency dis-
patch system to report that he had been pushed out of a moving
vehicle. He described that vehicle and indicated the direction
that vehicle had been traveling. Law enforcement found a
7
Id., 134 S. Ct. at 1691 (citations omitted).
8
Id.
9
Id., 134 S. Ct. at 1689.
Nebraska Advance Sheets
898 288 NEBRASKA REPORTS
vehicle matching that description in the area where the caller
said the vehicle was headed. Taken together, this is sufficient
to create a reasonable suspicion to support Kleensang’s stop of
Rodriguez’ vehicle. I would affirm.
Cassel, J., joins in this dissent.
Michael E. K elliher, appellant, v.
Travis Soundy et al., appellees.
___ N.W.2d ___
Filed August 29, 2014. No. S-13-538.
1. Judgments: Jurisdiction. When a jurisdictional question does not involve a
factual dispute, the issue is a matter of law.
2. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law that
an appellate court resolves independently of the trial court.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, an appellate court must determine whether it has jurisdiction over the
matter before it.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to
acquire jurisdiction of an appeal, there must be a final order entered by the court
from which the appeal is taken; conversely, an appellate court is without juris-
diction to entertain appeals from nonfinal orders.
6. Final Orders: Appeal and Error. To fall within the collateral order doctrine,
an order must (1) conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the action, and (3) be
effectively unreviewable on appeal from a final judgment.
7. ____: ____. The requirement that a court order must resolve an important issue
completely separate from the merits of the action prevents piecemeal review.
8. ____: ____. Court orders which involve considerations that are enmeshed
in the factual and legal issues of the cause of action are not immediately
reviewable.
9. Property: Sales: Intent. The scope of the lis pendens statute is determined by
its end and purpose. The purpose of the lis pendens statute is to prevent third
persons, during the pendency of the litigation, from acquiring interests in the land
which would preclude the court from granting the relief sought.
10. Actions: Property: Notice. Cancellation of a notice of lis pendens is completely
separate from the merits of the underlying action.