Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/03/2020 08:09 AM CDT




                                                           - 66 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                               STATE v. KRANNAWITTER
                                                   Cite as 305 Neb. 66




                                         State of Nebraska, appellee, v.
                                        Amy J. Krannawitter, appellant.
                                                      ___ N.W.2d ___

                                          Filed February 21, 2020.   No. S-19-014.

                 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. Motions for New Trial: Appeal and Error. The standard of review for
                    the denial of a motion for new trial is whether the trial court abused its
                    discretion in denying the motion.
                 3. Constitutional Law: Police Officers and Sheriffs: Search and
                    Seizure. The first tier of police-citizen encounters involves no restraint
                    of the liberty of the citizen involved, but, rather, the voluntary coopera-
                    tion of the citizen is elicited through noncoercive questioning. This type
                    of contact does not rise to the level of a seizure and therefore is outside
                    the realm of Fourth Amendment protection.
                 4. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
                    Investigative Stops: Search and Seizure: Words and Phrases. The
                    second category of police-citizen encounters, the investigatory stop, is
                    limited to brief, nonintrusive detention during a frisk for weapons or
                    preliminary questioning. This type of encounter is considered a seizure
                    sufficient to invoke Fourth Amendment safeguards, but because of its
                    less intrusive character requires only that the stopping officer have spe-
                    cific and articulable facts sufficient to give rise to reasonable suspicion
                    that a person has committed or is committing a crime.
                 5. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
                    Arrests: Search and Seizure: Probable Cause. The third type of
                                    - 67 -
           Nebraska Supreme Court Advance Sheets
                    305 Nebraska Reports
                         STATE v. KRANNAWITTER
                             Cite as 305 Neb. 66

     police-citizen encounters, arrests, is characterized by highly intrusive
     or lengthy search or detention. The Fourth Amendment requires that an
     arrest be justified by probable cause to believe that a person has com-
     mitted or is committing a crime.
6.   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.
7.   ____: ____. In addition to situations where an officer directly tells a
     suspect that he or she is not free to go, circumstances indicative of a
     seizure may include the threatening presence of several officers, the dis-
     play of a weapon by an officer, some physical touching of the citizen’s
     person, or the use of language or tone of voice indicating the compli-
     ance with the officer’s request might be compelled.
8.   Motions for New Trial: Evidence: Proof. In order to obtain a new trial
     based on newly discovered evidence, a defendant must show that the
     new evidence could not with reasonable diligence have been discovered
     and produced at trial and that the evidence is so substantial that a dif-
     ferent result may have occurred.
9.   Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
     The four foundational elements which the State must establish as a
     foundation for the admissibility of a breath test in a driving under
     the influence prosecution are as follows: (1) that the testing device
     was working properly at the time of the testing, (2) that the person
     administering the test was qualified and held a valid permit, (3) that
     the test was properly conducted under the methods stated by the
     Department of Health and Human Services, and (4) that all other stat-
     utes were satisfied.

  Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
   Brad Roth and Kenneth Yoho, Senior Certified Law Student,
of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg,
P.C., L.L.O., for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
                               - 68 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                     STATE v. KRANNAWITTER
                         Cite as 305 Neb. 66

  Heavican, C.J.
                      I. INTRODUCTION
   Amy J. Krannawitter was charged with third-offense driving
under the influence. Her motion to suppress was denied, and
she was convicted. Krannawitter then filed a motion for new
trial on the basis of newly discovered evidence. That motion
was denied, and she was sentenced. Krannawitter appeals.
We affirm.
                II. FACTUAL BACKGROUND
    At approximately 6 a.m. on July 4, 2017, Deputy Dennis
Guthard of the Lancaster County Sheriff’s Department was
leaving his home to report for work. Guthard was driving
a marked cruiser. He noticed a black Nissan Altima driving
slowly down the street of his neighborhood, of which he had
been a resident for 16 years. Guthard’s house was located on
the corner of a street and a neighborhood circle. He drove from
the circle onto the nearby through street and emerged behind
the Altima. The Altima pulled into the driveway of Guthard’s
neighbors’ house.
    Guthard did not recognize the Altima or its driver, who he tes-
tified was a “younger woman” later identified as Krannawitter.
Guthard testified that the occupants of the neighbors’ house
were a 70-year-old woman and her 96-year-old mother and
that it was his experience that these two women did not wake
until around 8:30 a.m. Guthard also testified that he considered
keeping an eye on his neighborhood to be part of his job and
that he was therefore aware of many of the vehicles belonging
to persons who visited the neighborhood. Guthard noted that he
often left for work at 6 a.m. and was therefore aware of who
might be out and about at that time of the morning.
    As Guthard drove down the street, he noticed, using his side
and rear view mirrors, that the Altima was “just parked there”
in the driveway. Guthard thought that was suspicious, but he
also allowed for the possibility that the Altima’s driver was
lost, because it was a “confusing neighborhood.” He therefore
turned around at the next neighborhood circle to see if he could
                             - 69 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                    STATE v. KRANNAWITTER
                        Cite as 305 Neb. 66

be of assistance. As his cruiser approached the driveway, the
driver of the Altima, who had been in the process of back-
ing out of the driveway, paused for several seconds and then
abruptly pulled back into the driveway and parked again. No
other cars were traveling on the street at the time.
    Guthard pulled into the driveway about 5 feet behind
the Altima, but did not activate his cruiser’s siren or lights.
Guthard did turn the cruiser’s camera on as he approached the
Altima, and a video of the interaction between Guthard and
Krannawitter was offered into evidence at trial.
    Guthard made contact with the driver, Krannawitter.
Immediately before Krannawitter opened the door of the
Altima, Guthard observed Krannawitter was “very dishev-
eled” and had droopy eyelids. When she opened the door,
Guthard smelled a strong odor of alcohol and further noted
Krannawitter’s bloodshot eyes and slurred speech.
    Krannawitter’s breath test, administered approximately 90
minutes later, showed a concentration of .235 grams of alcohol
per 210 liters of breath. Krannawitter was charged with aggra-
vated driving under the influence, third offense. Krannawitter’s
motion to suppress was denied. The district court concluded
that the initial stop of Krannawitter was a tier-one police-
citizen encounter and that even if it was a seizure, there was
reasonable suspicion to support a brief investigative stop.
    Following a jury trial, Krannawitter was found guilty of
driving under the influence. She filed a motion for new trial on
the basis of newly discovered evidence. Krannawitter alleged
that her breath test was performed using a machine that was
maintained and tested using solutions that did not have cer-
tificates of analysis, in violation of title 177 of the Nebraska
Administrative Code dealing with the testing of the alcohol
content in blood and breath and in violation of her due process
and confrontation rights. This argument centered on the testing
solutions use to maintain the machine.
    Krannawitter presented evidence that when sent to law
enforcement, the solutions were accompanied by certificates
                                    - 70 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                         STATE v. KRANNAWITTER
                             Cite as 305 Neb. 66

of analysis signed by Alma Palmer as the individual who pre-
pared, tested, and supplied the solutions. Such a certificate is
required by title 177. However, it was later determined that the
solutions were actually prepared, tested, and supplied by Colby
Hale. The company that delivered the solutions subsequently
provided amended certificates, signed by Hale.
   The district court concluded that the amended certificates
were “not . . . newly discovered evidence” and that even if they
were, the defect in the original certificates would not have ren-
dered the breath test inadmissible. Accordingly, Krannawitter’s
motion was denied. Krannawitter was sentenced to 5 years’
probation and a 15-year license revocation, with the possi-
bility of obtaining an ignition interlock device after 1 year.
She appeals.

                III. ASSIGNMENTS OF ERROR
   Krannawitter assigns, restated and consolidated, that the
district court erred in (1) denying her motion to suppress and
(2) denying her motion for new trial.

                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,
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.1
   [2] The standard of review for the denial of a motion for
new trial is whether the trial court abused its discretion in
denying the motion.2

1
    State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
2
    State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
                                    - 71 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                         STATE v. KRANNAWITTER
                             Cite as 305 Neb. 66

                          V. ANALYSIS
                     1. Motion to Suppress
   In her first assignment of error, Krannawitter assigns that
the district court erred in denying her motion to suppress. In
so denying, the district court noted that in its view, the interac-
tion between Guthard and Krannawitter was a tier-one police-
citizen encounter, but that in any case, the encounter was sup-
ported by reasonable suspicion. Krannawitter takes issue with
both findings.
   [3-5] There are three tiers of police encounters under
Nebraska law. The first tier of police-citizen encounters
involves no restraint of the liberty of the citizen involved,
but, rather, the voluntary cooperation of the citizen is elicited
through noncoercive questioning.3 This type of contact does
not rise to the level of a seizure and therefore is outside the
realm of Fourth Amendment protection. The second category,
the investigatory stop, as defined by the U.S. Supreme Court in
Terry v. Ohio,4 is limited to brief, nonintrusive detention during
a frisk for weapons or preliminary questioning.5 This type of
encounter is considered a “seizure” sufficient to invoke Fourth
Amendment safeguards, but because of its less intrusive char-
acter requires only that the stopping officer have specific and
articulable facts sufficient to give rise to reasonable suspicion
that a person has committed or is committing a crime.6 The
third type of police-citizen encounters, arrests, is characterized
by highly intrusive or lengthy search or detention.7 The Fourth
Amendment requires that an arrest be justified by probable
cause to believe that a person has committed or is committing

3
    State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
4
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See,
    also, State v. Schriner, supra note 3.
5
    See State v. Schriner, supra note 3.
6
    Id.
7
    Id.
                                      - 72 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                          STATE v. KRANNAWITTER
                              Cite as 305 Neb. 66

a crime.8 Only the second and third tiers of police-citizen
encounters are seizures sufficient to invoke the protections of
the Fourth Amendment to the U.S. Constitution.9
   [6,7] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he or
she was not free to leave.10 In addition to situations where an
officer directly tells a suspect that he or she is not free to go,
circumstances indicative of a seizure may include the threaten-
ing presence of several officers, the display of a weapon by an
officer, some physical touching of the citizen’s person, or the
use of language or tone of voice indicating the compliance with
the officer’s request might be compelled.11
   We need not decide whether this encounter might have
been a tier-one police-citizen encounter, because we conclude
that in any case, it was a seizure supported by reasonable
suspicion.
   The U.S. Supreme Court has recognized that the Fourth
Amendment permits brief investigative stops of vehicles based
on reasonable suspicion when a law enforcement officer has
a “‘particularized and objective basis for suspecting the par-
ticular person stopped of criminal activity.’”12 The reasonable
suspicion needed to justify an investigatory traffic stop “‘“is
dependent upon both the content of information possessed
by police and its degree of reliability.”’”13 Like the prob-
able cause standard, the reasonable suspicion standard “‘takes
into account “the totality of the circumstances—the whole

 8
     Id.
 9
     Id.
10
     Id.
11
     Id.
12
     Navarette v. California, 572 U.S. 393, 396, 134 S. Ct. 1683, 188 L. Ed. 2d
     680 (2014).
13
     State v. Barbeau, 301 Neb. 293, 301, 917 N.W.2d 913, 921 (2018), quoting
     Navarette v. California, supra note 12.
                                   - 73 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                         STATE v. KRANNAWITTER
                             Cite as 305 Neb. 66

picture.”’”14 A mere hunch does not create reasonable suspi-
cion, but the level of suspicion required to meet the standard is
“‘“considerably less than proof of wrongdoing by a preponder-
ance of the evidence,” and “obviously less” than is necessary
for probable cause.’”15
   Nervous, evasive behavior is a factor in determining reason-
able suspicion.16 Another consideration is unprovoked flight
upon noticing the police.17 Other pertinent circumstances
include the officer’s own direct observations, dispatch infor-
mation, directions from other officers, and the nature of the
area and time of day during which the suspicious activity
occurred.18
   In this case, Guthard was familiar with the neighborhood
where the seizure took place because he lived in it. Specifically,
Guthard testified that he was aware of those individuals who
frequented the house of the neighbors in question, but did not
recognize Krannawitter or her Altima. Because of this person-
alized knowledge regarding his own neighborhood, Guthard
testified that the fact that Krannawitter was parked in the
driveway in question at 6 a.m. was suspicious. Guthard thought
it was possible that the driver might be lost, but his suspicion
about the Altima and its occupants was reinforced when he
circled back to check on the Altima and witnessed it begin to
back out of the driveway, only to pause for an unknown reason
and abruptly drive back into the driveway just as he approached
in his marked cruiser. In his interaction with Krannawitter,
Guthard indicated that he thought he should check on the prop-
erty and on her, to be sure that she and her passengers were not
attempting to break into the property.

14
     Id.
15
     Id.
16
     U.S. v. Harris, 313 F.3d 1228 (10th Cir. 2002).
17
     Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570
     (2000).
18
     U.S. v. Campbell, 549 F.3d 364 (6th Cir. 2008).
                                    - 74 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                          STATE v. KRANNAWITTER
                              Cite as 305 Neb. 66

   Guthard witnessed what appeared to him to be evasive
behavior when Krannawitter pulled out of and then imme-
diately back into the neighbors’ driveway. Based on his
knowledge of the neighbors and the neighborhood in ques-
tion, Guthard did not believe Krannawitter was visiting or
acquainted with those neighbors such that there was a reason
for her Altima to be parked in that driveway in the early morn-
ing hours. Guthard testified he considered it to be part of his
job to keep an eye on his neighborhood. We conclude that
when the totality of the circumstances is considered, Guthard’s
seizure of Krannawitter was supported by a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.

                   2. Motion for New Trial
    In her second assignment of error, Krannawitter assigns that
the district court erred in denying her motion for new trial.
In denying Krannawitter’s motion for new trial, the district
court found that the amended certificates of analysis were “not
. . . newly discovered evidence,” because they could have been
discovered with reasonable diligence, and that in any case, the
defect with the original certificates would not have rendered
the breath test inadmissible.
    [8] In order to obtain a new trial based on newly discov-
ered evidence, a defendant must show that the new evidence
could not with reasonable diligence have been discovered and
produced at trial.19 Additionally, the defendant must show the
evidence is “so substantial that a different result may have
occurred.”20 In other words, the defendant must show that if the
evidence had been admitted at the former trial, it would prob-
ably have produced a substantially different result.

19
     See, Neb. Rev. Stat. §§ 29-2101(5) and 29-2103(4) (Reissue 2016); State
     v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
20
     State v. Cross, supra note 19, 297 Neb. at 161, 900 N.W.2d at 6.
                              - 75 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                     STATE v. KRANNAWITTER
                         Cite as 305 Neb. 66

                  (a) Newly Discovered Evidence
   The district court erred in finding that the amended certifi-
cates did not qualify as newly discovered evidence. A timeline
of events relating to the certificates is helpful in determining
this issue.
   On June 29 and July 27, 2016, respectively, Palmer signed
the original certificates of analysis of the solutions for testing
concentrations of .08 and .15 milliliters of alcohol per 210
liters of breath, and the testing solutions were sent to Lancaster
County. The solutions were those used to test and maintain
the breath testing machine shortly before Krannawitter was
arrested and tested on July 4, 2017.
   Krannawitter’s trial began on April 9, 2018. On that same
date, Palmer signed affidavits stating that she had not tested
those solutions, but that Hale had done that testing. It is not
clear from the record how these affidavits came to be signed.
On April 10, following a second day of trial, Krannawitter was
found guilty. On May 7, Hale signed amended certificates of
analysis, which were sent to Lancaster County. Krannawitter’s
motion for new trial was filed May 10. (The operative motion
for new trial, however, is the amended motion for new trial,
which was filed on July 27.)
   Evidence is considered “newly discovered” if it “could not
with reasonable diligence have [been] discovered and pro-
duced at the trial.”21 Defense counsel’s affidavit indicates that
he was not aware of the inaccuracy in the original certificates
of analysis; nor is there any other evidence in the record to
suggest that counsel should have been aware that the original
certificates were incorrect. The amended certificates qualify as
newly discovered evidence, and the district court erred in find-
ing otherwise.
               (b) Substantially Different Result
   We turn next to the question of whether, had the certifi-
cates been offered at trial, the results of that trial would have

21
     § 29-2101(5).
                                    - 76 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                          STATE v. KRANNAWITTER
                              Cite as 305 Neb. 66

been substantially different. Krannawitter contends, within the
framework of her motion for new trial, that (1) her breath
test results were inadmissible, (2) she had a right to confront
Palmer and Hale, (3) the certificates of analysis were inadmis-
sible hearsay, and (4) the State violated Krannawitter’s due
process rights when it offered Palmer’s affidavit at trial.
    [9] Krannawitter’s argument on appeal is based on her
assertion that because the original certificates of analysis were
incorrect, there was insufficient foundation to support the
introduction of her chemical breath test results. The four foun-
dational elements which the State must establish as a founda-
tion for the admissibility of a breath test in a driving under
the influence prosecution are as follows: (1) that the testing
device was working properly at the time of the testing, (2)
that the person administering the test was qualified and held
a valid permit, (3) that the test was properly conducted under
the methods stated by the Department of Health and Human
Services, and (4) that all other statutes were satisfied.22 The
certificate of analysis at issue in this appeal is required by 177
Neb. Admin. Code, ch. 1, § 008.04A (2016), of the Department
of Health and Human Services regulations. Krannawitter
contends—as set forth above—that the State did not prove
§ 008.04A, which requires that the test be properly conducted
under the methods stated by the Department of Health and
Human Services.
    But Krannawitter’s assertion that there was improper
foundation overlooks both the framework used to deter-
mine whether a motion for new trial should be granted and
the substantive effect of the amended certificates. We agree
with Krannawitter that together with Palmer’s affidavit, the
amended certificates of analysis showed that the original cer-
tificates were incorrect.
    But we do not agree that this fact results in the conclusion
that there was no foundation for the admission of the breath

22
     State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).
                                     - 77 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                          STATE v. KRANNAWITTER
                              Cite as 305 Neb. 66

test results. In addition to contributing to the evidence show-
ing that the original certificates were incorrect, the amended
certificates were independent foundational evidence supporting
the admission of those results. And in addition to even these
certificates, there was other evidence presented at the hearing
on the amended motion for new trial that supported the admis-
sibility of the results.
   Krannawitter also argued that her confrontation rights were
violated when she was not permitted to confront the wit-
nesses against her, specifically naming Hale. The district court
rejected this claim in its order, citing to State v. Fischer 23
wherein this court held that certificates of analysis similar to
these are nontestimonial.
   Krannawitter argues that our prior case law is distinguish-
able because there were amended certificates of analysis, the
“primary purpose of [which] was to present after-the-fact evi-
dence that the calibration verification was reliable so that the
State could establish that the testing device was working prop-
erly at the time the breath test was administered.”24 While we
understand the distinction Krannawitter relies upon, we find
that it makes no difference in this case.
   In concluding that such certificates of analysis were non-
testimonial, this court in Fischer reasoned that the statements
in a certificate “did not pertain to any particular pending mat-
ter” and that the certificate “was prepared in a routine manner
without regard to whether the certification related to any par-
ticular defendant.”25
   This reasoning is also applicable to the amended certifi-
cates now at issue. There is no indication from the face of
the amended certificates that they were prepared for a par-
ticular criminal proceeding. Rather, the testimony of one of the

23
     State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).
24
     Brief for appellant at 30-31.
25
     State v. Fischer, supra note 23, 272 Neb. at 971, 972, 726 N.W.2d at 182,
     183.
                                    - 78 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                         STATE v. KRANNAWITTER
                             Cite as 305 Neb. 66

maintenance officers indicated that the amended certificates
were “additional documentation” received by the county in
connection with the simulator solutions in the county’s posses-
sion and that the only difference between the original and the
amended certificates was the name of the person who tested
the solutions.
    Moreover, the record shows that that the amended cer-
tificates were received by Lancaster County after the time
Krannawitter was convicted and before the date Krannawitter
filed her motion for new trial. Just as the original certificates
were nontestimonial, so also were the amended certificates.
There is no merit to Krannawitter’s contention to the contrary.
    Whether there was sufficient foundation for the admission
of those results is a question for the trial court.26 At the hear-
ing on the motion for new trial, the district court found that
the foundational elements were met and that the results were
admissible. As such, the trial court concluded that the results of
a trial where the amended certificates of analysis were offered
would not have been substantially different.
    We need not reach Krannawitter’s arguments on appeal
regarding her due process rights, or whether the certificates
of analysis were inadmissible hearsay, because neither was
raised in her amended motion for new trial or at the hearing on
that motion.
    The trial court did not abuse its discretion in denying
Krannawitter’s amended motion for new trial.
                      VI. CONCLUSION
     The judgment and sentence of the district court are affirmed.
                                                      Affirmed.

26
     See State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).
