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04/08/2016 09:05 AM CDT




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                                           Nebraska A dvance Sheets
                                            293 Nebraska R eports
                                                  STATE v. WOLDT
                                                 Cite as 293 Neb. 265




                                        State of Nebraska, appellee, v.
                                          A dam T. Woldt, appellant.
                                                    ___ N.W.2d ___

                                          Filed April 8, 2016.     No. S-14-573.

                1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
                    Appeal and Error. In reviewing a trial court’s ruling on a motion to
                    suppress based on a claimed violation of the Fourth Amendment, an
                    appellate court applies a two-part standard of review. Regarding histori-
                    cal facts, an appellate court reviews the trial court’s findings for clear
                    error, but whether those facts trigger or violate Fourth Amendment pro-
                    tection is a question of law that an appellate court reviews independently
                    of the trial court’s determination.
                2.	 Trial: Investigative Stops: Warrantless Searches: Appeal and Error.
                    The ultimate determinations of reasonable suspicion to conduct an
                    investigatory stop and probable cause to perform a warrantless search
                    are reviewed de novo, and findings of fact are reviewed for clear error,
                    giving due weight to the inferences drawn from those facts by the
                    trial judge.
                3.	 Constitutional Law: Search and Seizure: Arrests: Police Officers
                    and Sheriffs. Whether a seizure that is less intrusive than a traditional
                    arrest is otherwise reasonable depends on a balance between the public
                    interest and the individual’s right to personal security free from arbitrary
                    interference by law officers. Consideration of the constitutionality of
                    such seizure involves a weighing of the gravity of the public concerns
                    served by the seizure, the degree to which the seizure advances the pub-
                    lic interest, and the severity of the interference with individual liberty.
                4.	 Constitutional Law: Search and Seizure. A seizure in the Fourth
                    Amendment context occurs only if, in view of all the circumstances sur-
                    rounding the incident, a reasonable person would have believed that he
                    or she was not free to leave.

                Petition for further review from the Court of Appeals,
               Moore, Chief Judge, and Irwin and R iedmann, Judges, on
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

appeal thereto from the District Court for Cuming County,
James G. Kube, Judge, on appeal thereto from the County
Court for Cuming County, Michael L. Long, Judge. Judgment
of Court of Appeals reversed, and cause remanded with
directions.
      Thomas B. Donner for appellant.
  Douglas J. Peterson and Jon Bruning, Attorneys General,
and Austin N. Relph for appellee.
  Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
      Heavican, C.J.
                       I. INTRODUCTION
  Adam T. Woldt was convicted in the county court for Cuming
County of driving under the influence and was sentenced to 6
months’ probation. His conviction and sentence were affirmed
by the district court. On appeal, the Nebraska Court of Appeals
found that police did not act reasonably in stopping Woldt.
Accordingly, the Court of Appeals reversed Woldt’s conviction
and remanded the cause with directions.1 Upon further review,
we reverse the decision of the Court of Appeals.
                II. FACTUAL BACKGROUND
   The facts leading up to Woldt’s stop are as follows: Officer
Randy Davie of the Wisner, Nebraska, police department
received a report from dispatch of multiple traffic cones hav-
ing been knocked down on Highway 275, the main street in
Wisner. Dispatch indicated that the party responsible was driv-
ing a white Chevrolet pickup.
   Davie stopped to pick up the cones. While doing so, he
heard squealing tires nearby. Davie finished picking up the
cones, returned to his cruiser, and began looking for the

 1	
      See State v. Woldt, 23 Neb. App. 42, 867 N.W.2d 637 (2015).
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                   Nebraska A dvance Sheets
                    293 Nebraska R eports
                         STATE v. WOLDT
                        Cite as 293 Neb. 265

pickup. He found the pickup nearby and, recognizing the
driver as Jacob Biggerstaff, made eye contact and motioned
with his arm for Biggerstaff to pull over. Biggerstaff pulled
up about four or five car lengths farther and parked along the
opposite curb from Davie’s location. Following Biggerstaff by
one car length or less was another pickup, driven by Woldt.
When Biggerstaff pulled his pickup over, Woldt also pulled his
pickup over.
    Davie approached Biggerstaff’s vehicle, smelled the odor
of alcohol, and saw signs that Biggerstaff might have been
impaired. Davie brought Biggerstaff back to his patrol car.
    At that time, the pickup driven by Woldt reversed into the
intersection as if to drive away. Davie testified that he recog-
nized Woldt “[b]y sight” as an employee of the city of Wisner.
Davie motioned for Woldt to stop and to come over to Davie.
Davie testified that he did not recall whether he verbally
requested that Woldt stop, but both Woldt and Biggerstaff tes-
tified that he did so. Davie testified that he wanted to talk to
Woldt because he thought that Woldt might have information
about Biggerstaff’s activities.
    Davie approached Woldt’s vehicle and smelled the odor
of alcohol. Davie asked Woldt if he had been drinking, and
Woldt put his head down. Davie asked Woldt if he was drunk,
and Woldt turned off his vehicle and handed Davie his keys.
Woldt was arrested for driving under the influence. Woldt
stipulated that chemical test results of his breath registered an
alcohol content of .148.

            III. PROCEDURAL BACKGROUND
   On September 26, 2013, Woldt was charged in the county
court for Cuming County with misdemeanor driving under
the influence. He pled not guilty. Woldt then filed a motion
to suppress his stop, detention, arrest, and any statements he
had made. The motion to suppress was denied on December
3. Woldt was found guilty following a trial on stipulated facts
and was sentenced to 6 months’ probation.
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                          Nebraska A dvance Sheets
                           293 Nebraska R eports
                                 STATE v. WOLDT
                                Cite as 293 Neb. 265

   Woldt appealed to the district court, sitting as an intermedi-
ate court of appeal. The district court affirmed.
   Woldt then appealed to the Court of Appeals, which reversed
his conviction and remanded the cause with directions. The
Court of Appeals concluded that law enforcement’s stop was
not reasonable under Brown v. Texas2 and Illinois v. Lidster.3
Specifically, the Court of Appeals focused on the balancing
test set forth in Brown, which requires a “weighing of the
gravity of the public concerns served by the seizure, the degree
to which the seizure advances the public interest, and the
severity of the interference with individual liberty.”4
   The Court of Appeals agreed that it was “reasonable for
Davie to believe that Woldt was a potential witness to any
crimes by Biggerstaff and might have information for Davie
that would advance his investigation of those crimes,” but also
stated that because Davie recognized Woldt as a city employee,
he could have contacted Woldt at a later date if necessary.5 The
Court of Appeals further noted that “the degree of intrusion
on Woldt’s liberty interest was not great.”6 But the Court of
Appeals found that the “matters under investigation under the
circumstances of this case were not of grave public concern”7
and concluded that the intrusion still was not “outweighed
by the degree of public concern and the extent to which
questioning Woldt at that time advanced any investigation
of Biggerstaff.”8
   We granted the State’s petition for further review.

 2	
      Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
 3	
      Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004).
 4	
      Brown v. Texas, supra note 2, 443 U.S. at 51.
 5	
      State v. Woldt, supra note 1, 23 Neb. App. at 60, 867 N.W.2d at 650.
 6	
      Id. at 61, 867 N.W.2d at 650.
 7	
      Id. at 60, 867 N.W.2d at 649.
 8	
      Id. at 61, 867 N.W.2d at 650.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

               IV. ASSIGNMENTS OF ERROR
   On further review, the State assigns that the Court of Appeals
erred in (1) concluding that the stop of Woldt was not reason-
able, and thus unconstitutional, under Brown and (2) refusing
to address the State’s alternative argument that the stop of
Woldt was reasonable based upon Davie’s observation of con-
duct by Woldt that amounted to traffic violations.

                 V. STANDARD OF REVIEW
   [1,2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.9
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.10 The ultimate determinations of rea-
sonable suspicion to conduct an investigatory stop and prob-
able cause to perform a warrantless search are reviewed de
novo, and findings of fact are reviewed for clear error, giving
due weight to the inferences drawn from those facts by the
trial judge.11

                        VI. ANALYSIS
   [3] The issue presented by this case is whether Davie’s stop
of Woldt was reasonable. The U.S. Supreme Court addressed
the “reasonableness of seizures that are less intrusive than a
traditional arrest” in Brown v. Texas.12 The Court held that
such reasonableness

 9	
      State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).
10	
      Id.
11	
      State v. Dalland, 287 Neb. 231, 842 N.W.2d 92 (2014).
12	
      Brown v. Texas, supra note 2, 443 U.S. at 50.
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                               STATE v. WOLDT
                              Cite as 293 Neb. 265

      depends “‘on a balance between the public interest and
      the individual’s right to personal security free from arbi-
      trary interference by law officers.’” [Citations omitted.]
      Consideration of the constitutionality of such seizures
      involves a weighing of the gravity of the public concerns
      served by the seizure, the degree to which the seizure
      advances the public interest, and the severity of the inter-
      ference with individual liberty.13
   The Court applied Brown in Illinois v. Lidster.14 In Lidster,
law enforcement conducted a checkpoint in order to gather
information about a hit-and-run accident that had occurred
a week earlier at a location near the checkpoint. During the
course of the operation of the checkpoint, the defendant was
stopped and determined to be driving under the influence.
   The Court declined to apply Indianapolis v. Edmond15 to
the checkpoint at issue in Lidster. In Edmond, the Court found
that the intent of the checkpoint was to detect criminal activ-
ity and that such violated the Fourth Amendment. The Court
distinguished Lidster from Edmond, because the purpose of
the checkpoint was for information gathering purposes, and
noted that such did “not mean the stop is automatically, or
even presumptively, constitutional. It simply means that we
must judge its reasonableness, hence, its constitutionality, on
the basis of the individual circumstances.”16 The Court then
applied the Brown balancing test and held that the checkpoint
advanced a grave public concern, was narrowly tailored to fit
law enforcement’s investigatory needs, and interfered only
minimally with a driver’s liberty.

13	
      Id., 443 U.S. at 50-51.
14	
      Illinois v. Lidster, supra note 3.
15	
      Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333
      (2000).
16	
      Lidster, supra note 3, 540 U.S. at 426.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

                   1. Was There Seizure for
                 Fourth A mendment Purposes?
   [4] The State concedes that Woldt was seized for urposes of
the Fourth Amendment. A seizure in the Fourth Amendment
context occurs only if, in view of all the circumstances sur-
rounding the incident, a reasonable person would have believed
that he or she was not free to leave.17 We agree that on
these facts, Davie seized Woldt for purposes of the Fourth
Amendment when Davie motioned to Woldt and possibly ver-
bally requested Woldt to not leave the scene.
                    2. Does Lidster A pply to
                     Non-Checkpoint Cases?
   Having concluded that the Fourth Amendment is implicated
here, we turn to Woldt’s contention that Lidster and Brown are
inapplicable because this case is not a checkpoint case.
   We have found multiple cases where a court discussed or
applied Lidster to a non-checkpoint stop.18 And in any case,
by its terms, Brown envisions that its balancing test should be
applied when assessing “the reasonableness of seizures that
are less intrusive than a traditional arrest.”19 The situation pre-
sented by these facts is such a seizure, and the application of
the Brown balancing test is appropriate here.

17	
      State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
18	
      See, e.g., Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013);
      Manzanares v. Higdon, 575 F.3d 1135 (10th Cir. 2009); State v. Whitney,
      54 A.3d 1284 (Me. 2012); State v. LaPlante, 26 A.3d 337 (Me. 2011);
      Gipson v. State, 268 S.W.3d 185 (Tex. App. 2008); State v. Mitchell, 145
      Wash. App. 1, 186 P.3d 1071 (2008); State v. Watkins, 207 Ariz. 562,
      88 P.3d 1174 (Ariz. App. 2004); State v. Wilson, No. 22001, 2007 WL
      4305715 (Ohio App. Dec. 7, 2007) (unpublished decision). See, also,
      State v. Pierce, 173 Vt. 151, 787 A.2d 1284 (2001) (applying factors used
      in Brown in pre-Lidster case); In re Muhammed F., 94 N.Y.2d 136, 722
      N.E.2d 45, 700 N.Y.S.2d 77 (1999) (applying Brown factors in pre-Lidster
      case).
19	
      Brown v. Texas, supra note 2, 443 U.S. at 50.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

                    3. Was Stop R easonable
                         Under Brown ?
   Under Brown, a court should consider the gravity of the
public concerns served by the seizure, the degree to which
the seizure advances the public interest, and the severity of
the interference with individual liberty, in order to determine
whether a stop was reasonable.
   In this case, the district court concluded that the stop was
reasonable. The Court of Appeals disagreed. The Court of
Appeals agreed that “the degree of intrusion on Woldt’s lib-
erty interest was not great,” but further concluded that the
“matters under investigation under the circumstances of this
case were not of grave public concern” and that “the evi-
dence does not show that stopping and questioning Woldt at
that time would have advanced the investigation to a greater
degree than contacting him the following day at his work-
place would have.”20 As such, the Court of Appeals found the
stop unreasonable.
                 (a) Gravity of Public Concern
   We turn first to the public concern at issue. The Court of
Appeals concludes that the public concern here was the knock-
ing down of the traffic cones as creating a potential hazard.
The State disagrees and concludes that the public concern
was not just the hazard the cones presented, but the hazard
the driver who knocked down the cones presented. The State
argues that the public concern presented here was Biggerstaff’s
driving under the influence.
   In support of his argument on appeal that the public con-
cern was not grave, Woldt directs us to State v. LaPlante21 and
State v. Whitney.22 In LaPlante, the Maine Supreme Judicial

20	
      State v. Woldt, supra note 1, 23 Neb. App. at 60, 61, 867 N.W.2d at 649,
      650.
21	
      State v. LaPlante, supra note 18.
22	
      State v. Whitney, supra note 18.
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                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

Court concluded that a civil speeding infraction was not a suf-
ficient grave public concern. And in Whitney, the court noted
that leaving the scene of an accident, as a misdemeanor, was
more serious than speeding, but was still not a sufficiently
grave public concern. These cases are distinguishable.
   Contrary to the conclusion of the Court of Appeals, the
investigation of the downed cones was not the public concern
presented by these facts. While Davie might have originally
stopped Biggerstaff to investigate the cones, his investigation
went from concern for that minor violation to a much more
serious concern when Davie smelled alcohol on Biggerstaff
and suspected him of driving under the influence. Driving
under the influence can rise to the level of a Class II felony23
and presents a threat to everyone sharing the road with a drunk
driver. As such, we conclude that the circumstances here pre-
sented a grave public concern.
                 (b) Degree to Which Seizure
                   Advances Public Interest
   As to the second factor of the Brown balancing test, the
Court of Appeals concluded that it was “reasonable for Davie
to believe that Woldt was a potential witness to any crimes by
Biggerstaff and might have information for Davie that would
advance his investigation of those crimes”24 But the Court of
Appeals nevertheless concluded that the seizure did not suf-
ficiently advance the public interest, because Davie recognized
Woldt as a city employee and could have gone to talk to him
about the incident at a later date.
   We agree that Davie could have sought out Woldt at a later
time, but such does not make unreasonable the officer’s deci-
sion to instead talk to Woldt at the scene. As the Court of
Appeals noted, questioning Woldt might have advanced the
investigation against Biggerstaff. Because Woldt was following

23	
      See Neb. Rev. Stat. § 60-6,197.03(10) (Supp. 2015).
24	
      State v. Woldt, supra note 1, 23 Neb. App. at 60, 867 N.W.2d at 650.
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                         293 Nebraska R eports
                               STATE v. WOLDT
                              Cite as 293 Neb. 265

closely behind Biggerstaff’s pickup and waited throughout the
stop of Biggerstaff, it was reasonable for Davie to conclude
that Woldt might have information to share.
   Moreover, at that point in time, Woldt’s memory was fresh,
and any statement he might give at the scene would arguably
be more reliable. Speaking to Woldt immediately would also
limit any ability of Woldt and Biggerstaff to collude with
each other regarding any statements they might give Davie.
Other considerations, including making sure Davie was cor-
rect in his identification of Woldt, obtaining Woldt’s contact
information, and possibly setting up a later time to make a
statement, suggest that Davie’s decision to stop Woldt briefly
at the scene was not unreasonable.
   These facts are similar to the facts presented in State v.
Pierce.25 There, the Vermont Supreme Court applied the fac-
tors used in Brown to the stop of a driver whom the officer
believed was a witness to another driver’s erratic driving. The
court noted that drunk driving was a “‘serious threat to public
safety’” and found that the witness had the “perfect vantage
point” to “observe the erratic operation” of the other vehicle.26
Finally, the court noted that a brief stop to ensure that the wit-
ness could be properly identified and could provide a “fresh
witness account” was reasonable.27
   Meanwhile, LaPlante, which Woldt relies on, is factu-
ally distinguishable. There, stopping another motorist would
not have necessarily advanced the speeding investigation.
But here, Davie had specific information that the cones had
been knocked down by someone driving a white pickup.
He then heard squealing tires and, following the sound,
found a white pickup driven by Biggerstaff. When Davie
motioned Biggerstaff to pull his pickup over, Woldt, who was

25	
      State v. Pierce, supra note 18.
26	
      Id. at 156, 787 A.2d at 1289 (citing prior case law regarding risks of
      driving under influence).
27	
      Id.
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

following the pickup closely, also pulled his pickup over.
Woldt then waited as Davie approached Biggerstaff’s pickup
and led Biggerstaff back to Davie’s patrol car. Thus, Woldt’s
involvement is far less attenuated than the random driver in
LaPlante who might have had information about a speed-
ing motorist.
                   (c) Severity of Interference
                      With Individual Liberty
   As to the last factor, the Court of Appeals acknowledged
that in this case, the interference with Woldt’s liberty interest
with respect to the informational stop was “not great.”28 The
record supports this conclusion—Woldt was parked behind
Biggerstaff as the stop of Biggerstaff occurred. This was not a
question of Davie sounding his patrol car’s siren and activat-
ing its lights to pull over Woldt while Woldt was operating his
vehicle. Rather, this was Davie waving, and possibly verbally
requesting, that Woldt stay where he was so that Davie could
ask him questions relating to Biggerstaff’s activities.
   Woldt cites to State v. Wilson,29 an unpublished opinion
of the Ohio Court of Appeals, in support of his position
that the interference with his liberty interest was great. But
Wilson is distinguishable. The officers in Wilson approached
the defend­  ant’s vehicle with guns drawn, purportedly to
obtain information from the defendant about another indi-
vidual’s possession of a firearm while being a felon. Nothing
approaching this situation occurred in this case.
                 (d) Balancing Brown Factors
   In balancing the Brown factors, the Court of Appeals found
that the stop was not reasonable. But when considering, de
novo, the Brown balancing test in light of the above, we
disagree. The public concern was not just the traffic cone

28	
      State v. Woldt, supra note 1, 23 Neb. App. at 61, 867 N.W.2d at 650.
29	
      State v. Wilson, supra note 18.
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                          293 Nebraska R eports
                                STATE v. WOLDT
                               Cite as 293 Neb. 265

hazard; rather, the concern was driving under the influence,
for which Biggerstaff was under investigation. This weighs
heavily in favor of the reasonableness of the stop.
   And stopping Woldt to see if he had any information about
Biggerstaff’s possible crimes would advance Davie’s investiga-
tion. This is particularly so on these facts, where Woldt also
stopped when Davie pulled Biggerstaff over. It was reason-
able for Davie to conclude that because Woldt stopped, he had
information to provide to Davie. Again, this weighs in favor
of reasonableness.
   Finally, the interference was slight, because Woldt was
already stopped, weighing in favor of reasonableness.
   We note that in State v. Ryland,30 this court held that a stop
to obtain a statement from the defendant about an accident the
defendant had witnessed 1 week earlier was not reasonable
because the officer lacked reasonable suspicion or probable
cause to stop the defendant. Ryland is distinguishable, both
factually and because it was decided prior to the authorization
in Lidster of information gathering stops. To the extent that
Ryland holds that an information gathering stop requires rea-
sonable suspicion or probable cause, it is disapproved.
   When all the factors are weighed, we conclude that the stop
was reasonable under Brown v. Texas.31 We therefore hold that
the Court of Appeals erred in its balancing of the Brown fac-
tors. Because we conclude that the stop was reasonable under
Brown, we need not address the State’s alternative grounds
that the stop was otherwise reasonable.
                     VII. CONCLUSION
   The judgment of the Court of Appeals is reversed, and the
cause is remanded to that court with directions to affirm the
judgment of the district court.
                    R eversed and remanded with directions.

30	
      State v. Ryland, 241 Neb. 74, 486 N.W.2d 210 (1992).
31	
      Brown v. Texas, supra note 2.
