                          IN THE NEBRASKA COURT OF APPEALS
               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. RIVERA


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                                JONATHAN J. RIVERA, APPELLANT.


                             Filed March 14, 2017.     No. A-16-255.


        Appeal from the District Court for Lancaster County, ANDREW R. JACOBSEN, Judge, on
appeal thereto from the County Court for Lancaster County, THOMAS W. FOX, Judge. Judgment of
District Court affirmed.
       Mark E. Rappl for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.



       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
        Jonathan Rivera was found guilty of one count of driving while under the influence, second
offense, over .15, on April 27, 2015. The county court for Lancaster County sentenced him to two
years’ probation, 30 days in jail, and a $1,000 fine. Rivera appealed his conviction to the district
court, where it was affirmed. Rivera now appeals to this court. Following our review of the record,
we affirm.
                                        BACKGROUND
       On May 24, 2014, Nebraska Game and Parks Commission conservation officers Travis
Shepler and Dudley Sorensen were on patrol in the Branched Oak State Recreation Area. At
approximately 10:35 p.m., they stopped to investigate a potential incident involving two groups of



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people on opposite sides of the road. Shepler was driving their patrol truck and he parked it on the
paved roadway towards the right side. On either side of the paved roadway was a grassy shoulder.
The patrol truck had red lights and Nebraska Game and Parks decals on it.
        Both officers exited the patrol truck and approached both groups of people. Shepler then
returned to the patrol truck to call dispatch while Sorensen remained out of the vehicle with the
groups of people. While in the patrol truck, at approximately 10:40 p.m., Shepler saw a vehicle,
driven by Rivera, approach from behind. The vehicle briefly stopped directly behind the patrol
truck and then drove off the paved roadway onto the grass on the right-hand side of the road.
        As the vehicle slowly passed the patrol truck on the right, Shepler testified that he became
worried about the safety of the people standing near the edge of the roadway ahead of the vehicle.
Shepler exited the patrol truck and walked around the front of it, towards the approaching vehicle.
The other vehicle stopped when it was even with the patrol truck, approximately 15 to 20 feet
away from the group of pedestrians. Rivera testified that he stopped because he saw Shepler’s hand
in the air near his head and he was under the impression that Shepler wanted him to stop, although
Shepler said he did not recall making any gestures. At no point in time did Shepler activate the
lights or siren on his patrol truck, block the vehicle from passing, or display his firearm.
        Shepler approached the vehicle and made contact with the driver, later identified as Rivera.
Shepler told Rivera that if he waited a few minutes, he would move his patrol truck. He did not
ever tell Rivera that he was not free to go. Upon making contact with him, Shepler observed that
Rivera had bloodshot, watery eyes, and slurred speech. When asked if he had been drinking, Rivera
admitted that he had been. Shepler then initiated a driving under the influence investigation, which
resulted in Rivera’s arrest.
        Rivera was charged with one count of driving under the influence, second offense, over
.15. Rivera filed a motion to suppress and a hearing on the motion was held. The county court
overruled Rivera’s motion and, subsequent to a stipulated trial, found him guilty of the charge.
        Rivera then appealed his conviction to the district court, alleging that the county court erred
in overruling his motion to suppress. The district court affirmed Rivera’s conviction. Rivera now
appeals to this court.
                                   ASSIGNMENTS OF ERROR
       Rivera assigns, restated, that the district court erred in affirming the county court’s order
overruling his motion to suppress.
                                     STANDARD OF REVIEW
        In reviewing a trial court’s order on a motion to suppress based on a claimed violation of
the Fourth Amendment, appellate courts apply a two-part standard of review. State v. Hill, 288
Neb. 767, 851 N.W.2d 670 (2014); State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
Regarding historical facts, appellate courts review the trial court’s findings for clear error. State v.
Hill, supra. But whether those facts trigger or violate Fourth Amendment protections is a question
of law that appellate courts review independently of the trial court’s determination. Id.




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                                            ANALYSIS
        Rivera argues that the district court erred in affirming the county court’s order overruling
his motion to suppress. He argues that his arrest was the result of Shepler unlawfully seizing his
vehicle, thereby violating his Fourth Amendment rights against unreasonable search and seizure.
Specifically, Rivera argues that there was no evidence that he had committed or was committing
a crime and that the community caretaking exception to the Fourth Amendment did not apply
under the circumstances. We disagree.
        The Fourth Amendment guarantees the right to be free from unreasonable search and
seizure. State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). This guarantee requires that an arrest
be based on probable cause and limits investigatory stops to those made upon an articulable
suspicion of criminal activity. Id. A traffic stop requires only that the investigating officer have
specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has
committed or is committing a crime. Id. To determine whether there is reasonable suspicion for an
officer to make an investigatory stop, the totality of the circumstances must be taken into account.
Id.
        In the absence of any evidence that a crime had been or was being committed, the court
must determine whether any exceptions to the Fourth Amendment apply. State v. Rohde, 22 Neb.
App. 926, 864 N.W.2d 704 (2015). One such exception is the community caretaker exception, first
recognized by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct.
2523 (1973). The Court noted that:
        Local police officers, unlike federal officers, frequently investigate vehicle accidents in
        which there is no claim of criminal liability and engage in what, for want of a better term,
        may be described as community caretaking functions, totally divorced from the detection,
        investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id.
        The Nebraska Supreme Court adopted the community caretaker exception in State v.
Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007), and applied it to determine whether the seizure
of a vehicle was reasonable. It held that to determine when the exception should apply, the court
should assess the totality of the circumstances surrounding the stop, including all objective
observations and considerations, as well as the suspicion drawn by a trained and experienced
officer by inference and deduction. Id. If, based upon the totality of the circumstances, the seizing
officer had a reasonable basis to believe his assistance was necessary, the stop is not
unconstitutional. Id. The Nebraska Supreme Court also held that this exception should be narrowly
and carefully applied in order to prevent its abuse. Id.
        Nebraska law has applied the community caretaking exception in few reported appellate
cases. It has been found to apply in three cases, including a case wherein a vehicle was being
driven in an erratic manner, State v. Bakewell, supra; a case wherein a vehicle was stopped at an
intersection for a period of several minutes, State v. Smith, 4 Neb. App. 219, 540 N.W.2d 374
(1995); and a case wherein a passenger was observed to have half of her body out of a moving
vehicle’s moon roof and was waving her arms, State v. Rohde, supra. While all of these cases have




                                                -3-
concerned an exigency or need to protect or assist an occupant of the vehicle in question, we find
the same analysis to be applicable when those needing protection are located outside the vehicle.
In fact, it was the general public that the Supreme Court sought to protect when first applying the
community caretaker exception in Cady v. Dombrowski, supra.
         In the present case, there was no indication when Shepler initially made contact with Rivera
that Rivera had committed or was committing any crime. Shepler testified that he approached
Rivera’s vehicle as it passed his patrol truck on the right-hand side because he was concerned
about the group of people along the roadway approximately 15 to 20 feet ahead of the vehicle and
wanted to make sure that Rivera stopped before hitting them. He testified that his only concern
was to keep the group, including his partner, Sorensen, safe. Rivera argues that the county and
district courts erred in finding that the community caretaking exception to the Fourth Amendment
applied under these circumstances because the record did not establish that there actually was a
group of people near the roadway ahead of his vehicle. Moreover, he claims that even if the group
of people was still present beside the road, there was no reason for Shepler to believe that they
were in danger due to Rivera’s driving since both Rivera and Shepler testified that his vehicle was
moving at a slow speed, his headlights were illuminated, and Shepler conceded that Rivera could
have maneuvered his truck back onto the paved roadway without striking anyone.
         Under our two-part standard of review, we accept the factual findings of the trial court
unless we find clear error. Here, the trial court found that there was a group of people standing in
the dark near the roadway approximately 15 to 20 feet ahead of Rivera’s vehicle. Furthermore, the
county court found that Shepler approached Rivera’s vehicle due to his concern for the safety of
those people and the potential outcome if he chose not to act. The trial court reached these findings
after hearing testimony from three witnesses, Shepler and Sorensen as well as Rivera, and having
the opportunity to observe their demeanor and assess their credibility.
         Shepler testified that the group of pedestrians was still present along the roadway when
Rivera’s vehicle approached them. Sorensen testified that there had been a group of people
standing in that area when he and Shepler arrived at that location. He testified that after speaking
with the pedestrians, he walked away to ask an unrelated group to turn down their loud radio and
when he returned, he saw Shepler speaking to Rivera in his vehicle. At that point in time, Sorensen
said that the only group of people he saw was located behind the patrol vehicle. However, he said
that he was not sure when the initial group in front of the patrol vehicle had dispersed. Rivera
testified that he did not recall seeing any pedestrians standing in front of his vehicle, but also said
that it was really dark and admitted that drinking alcohol can affect your memory. An appellate
court does not resolve conflicts in the evidence, pass on the credibility of the witnesses . . . reweigh
the evidence presented, which are within a fact finder’s province for disposition. State v. Saylor,
294 Neb. 492, 883 N.W.2d 334 (2016). As such, factual findings will not be disturbed on appeal
absent clear error. State v. Hill, supra. Here, the county court was presented with conflicting
evidence regarding whether the group of pedestrians was still standing along the road ahead of
Rivera’s vehicle. After hearing testimony from witnesses on both sides, the court found that the
group was still present when Rivera’s vehicle approached. This finding is supported by Shepler’s
testimony and the record before us. We therefore find no clear error in these determinations and
turn to the question of reasonableness.



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         The dissent apparently questions the reasonableness of Shepler’s concern for the
pedestrians and his partner, stating “[t]hese facts do not rise to the type of emergency or exigent
circumstances courts should insist upon when Fourth Amendment protections are at stake.” As
instructed by State v. Rohde, supra, “a court should assess the totality of the circumstances
surrounding the stop, including all of the objective observations and considerations, as well as the
suspicion drawn by a trained and experienced police officer by inference and deduction. Id. at
932-33, 864 N.W.2d at 709 (2015). In Rohde, this court noted several factors that can be used to
assess the reasonableness of an officer’s actions when acting in a community caretaking capacity.
These factors include the nature and level of distress, the location, access to assistance, and the
extent to which, without officer assistance, the driver presented a danger to himself or others. Id.
We find that several of these factors weigh in favor of the lower court’s ruling.
         This incident took place along a darkened roadway at approximately 10:40 p.m. Rivera
testified that the location was “really dark.” Despite his headlights being illuminated, he stated that
he could not see the lights or decals on Shepler’s patrol truck as he approached it nor could he see
any people standing near the roadway ahead of him. The time of night and visibility suggest that
it was reasonable for Shepler to suspect that Rivera may not have been able to see the group of
people standing along the road as he approached them, thereby making it necessary for Shepler to
intervene before Rivera’s truck came closer to the group.
         Additionally, the extent to which Rivera presented a danger to others, if not for the action
of Shepler, was great. While Rivera stresses that he was driving at a slow speed, a moving vehicle
at any speed is inherently dangerous to pedestrians and a collision can be fatal. This danger
increases when a driver does not know that there are pedestrians nearby. While it may have been
possible for Rivera to maneuver his vehicle back onto the paved roadway without hitting or
endangering anyone, it is equally possible that, not knowing anyone was there, Rivera would not
have returned to the roadway in time to avoid the group. There was no way to ensure the safety of
the group, including Sorensen, without making contact with Rivera. Shepler was not required to
delay an attempt to intervene and, in fact, he would have been considered derelict had he failed to
act promptly and Rivera did cause harm to anyone while he stood by and watched. State v. Rohde,
supra.
         In considering the totality of the circumstances surrounding the stop, wherein the
immediate safety of pedestrians, including a law enforcement officer, is in jeopardy, together with
Shepler’s objective observations and considerations based upon his training, we conclude that
Shepler’s stop of Rivera was reasonable under the community caretaking exception to the Fourth
Amendment.
         Rivera also asserts that the community caretaking exception should not apply in this case
because Shepler improperly created the alleged exigency by blocking the paved roadway with his
patrol truck. We are not persuaded by this argument. The county court found that the paved
roadway was approximately the width of two vehicles and both Shepler and Sorensen testified that
there was more room to the left-hand side of the patrol truck than there was to the right. They
testified that a vehicle could have passed on the left. The exigency was created when Rivera chose
to pass the patrol truck on the right, where there was still a group of pedestrians standing by the
roadside. Had he chosen to pass on the left, the pedestrians would not have been directly in front



                                                 -5-
of his vehicle and it would not have been so imperative that Shepler ensured that he stopped in
order to protect the group. Furthermore, any time there are pedestrians on or near a roadway,
particularly in the dark, it is reasonable for a law enforcement officer to ensure that drivers are
made aware of their presence and proceed through the area accordingly.
        Rivera claims that even if Shepler was justified in briefly stopping his vehicle, he
impermissibly exceeded the scope of the seizure. He argues that Shepler did not use the least
intrusive means available and that he could have satisfied the purpose of the seizure using hand
gestures to stop Rivera, rather than making contact. We disagree. By Rivera’s own admission, he
stopped because he thought he saw Shepler gesturing for him to do so, but he was not looking at
Shepler’s hand or fingers; he simply saw Shepler’s hand near his head. If Rivera was not paying
attention to what Shepler’s hand was doing, and in fact could not tell for certain if Shepler was
gesturing to him at all, it is clear that using hand gestures would not have been sufficient in this
case.
        Considering the totality of the circumstances surrounding the stop, we conclude that it was
reasonable for Shepler to believe it necessary to make contact with Rivera in order to protect the
safety of the group standing near the road. As such, we find that the lower court properly applied
the community caretaking exception in finding that the stop did not violate the Fourth Amendment.
        We also note that the State argued in its brief that the contact between Shepler and Rivera
constituted a “tier one” contact, meaning voluntary cooperation of a citizen through noncoercive
questioning that does not involve any restraint on the citizen’s liberty, thus not implicating any of
the Fourth Amendment protections. Brief of Appellee at 10-13. However, this argument is raised
now for the first time and was not presented to the trial court. Absent plain error, an issue not raised
to the trial court will not be considered by an appellate court on appeal. State v. Kays, 289 Neb.
260, 854 N.W.2d 783 (2014). Therefore, we decline to address this argument.
                                           CONCLUSION
       Following our review of the record, we find Rivera’s assignment of error to be without
merit and therefore affirm the district court’s ruling.
                                                                                   AFFIRMED.
       BISHOP, Judge, dissenting.
        Any time courts chip away at the protections afforded citizens under our federal and state
constitutions, caution should be exercised. The Nebraska Supreme Court has said as much in its
one decision applying the community caretaking exception. In State v. Bakewell, 273 Neb. 372,
730 N.W.2d 335 (2007), our Supreme Court held that the community caretaking exception to the
Fourth Amendment must be applied narrowly and carefully in order to prevent its abuse. In the
present case, however, the majority has expanded the community caretaking exception to permit a
law enforcement officer to stop a lawfully operated vehicle if the officer’s stated reason is that he
anticipated a danger from that vehicle to persons outside the vehicle. I dissent because the objective
observations and considerations surrounding the stop do not show that a true emergency or exigent
circumstance existed to justify the stop. The majority acknowledges that although past cases
addressing the community caretaking exception in Nebraska “have concerned an exigency or need




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to protect or assist an occupant of the vehicle in question,” the exception should be expanded “to
be applicable when those needing protection are located outside the vehicle.” The majority states,
“In fact, it was the general public that the Supreme Court sought to protect when first applying the
community caretaker exception in [Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed.
2d 706 (1973)].” However, Cady involved the warrantless search for a police service revolver
inside an impounded car (following a one-vehicle accident and subsequent drunk driving arrest)
that ultimately turned up evidence tying the driver to a murder; it did not involve a traffic stop of
a vehicle being lawfully operated, as was the case here.
         While I certainly agree that law enforcement may need to engage in noninvestigatory
searches and seizures when emergency or exigent situations arise, they must be limited to those
circumstances where in addition to the officer’s stated reasons, all objective observations and
considerations demonstrate that such an emergency or dangerous situation actually existed or was
reasonably perceived to exist based upon an officer’s training and experience. The alleged danger
in this case was that there were people in the park, standing 15 to 20 feet ahead of Rivera’s vehicle,
who Shepler anticipated Rivera might not see. Shepler believed this even though the headlights of
Rivera’s vehicle were on, Rivera was driving at a slow enough speed that Shepler had time to exit
his vehicle and walk around the front of it, and then walk towards Rivera’s vehicle to stop it,
apparently without fear that he would be struck. Further, even Shepler conceded that Rivera could
have maneuvered his vehicle back onto the paved roadway without striking anyone. These facts
do not rise to the type of emergency or exigent circumstances courts should insist upon when
Fourth Amendment protections are at stake. Emergency or exigent circumstances cannot
objectively include situations where assumptions are made that a slow moving vehicle “might” not
get back on the road after passing a patrol vehicle blocking the road, and the driver “might” not
see people 15 to 20 feet down the road despite the vehicle’s headlights being on and its very slow
rate of speed. There are innumerable dangers involving motor vehicles to persons located outside
those vehicles that can be anticipated based on any variety of subjective and objective factors; this
is why the narrow application of this exception is necessary. An officer’s subjectively stated
“anticipated” danger, based upon that officer’s training and experience, must be supported by the
totality of the circumstances surrounding the stop, including all objective observations and
considerations. See State v. Bakewell, supra. I do not think it was the intent of the U.S. Supreme
Court in Cady v. Dombrowski, supra, to dilute Fourth Amendment protections in the name of
community caretaking functions; rather, it recognized that these noninvestigatory functions of law
enforcement provide an important service to the general public, and in limited circumstances,
warrantless searches and seizures may be necessary.
         Warrantless searches and seizures justified by the community caretaking functions of law
enforcement have been addressed in a trilogy of U.S. Supreme Court cases. As noted by the
majority, it was first addressed in Cady v. Dombrowski, supra. Cady did not involve a traffic stop
of a lawfully operated vehicle; rather, it considered whether a warrantless search of an impounded
vehicle was reasonable. Cady focused on the fact that the defendant’s vehicle was disabled from
an accident, was a nuisance on the highway, and due to the defendant’s intoxication and subsequent
coma, the Wisconsin police had to make arrangements to have the vehicle towed and stored.
Further, the search of the vehicle to retrieve the defendant’s service revolver (he was a Chicago



                                                -7-
police officer) was standard procedure for the Wisconsin police department to protect the public
from the possibility it would fall into “untrained or perhaps malicious hands.” Cady v.
Dombrowski, 413 U.S. at 443. Cady concluded that the “type of caretaking ‘search’ conducted
here” of a vehicle “placed where it was by virtue of lawful police action, was not unreasonable
solely because a warrant had not been obtained.” 413 U.S. at 447-48.
        A few years after Cady, the U.S. Supreme Court addressed community caretaking functions
once again in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
Opperman upheld a warrantless inventory search of an impounded vehicle because it was a routine
practice for local police departments to secure and inventory vehicles in order to protect the
owner’s property, protect police against claims of lost or stolen property, and to protect the police
from potential danger. “These caretaking procedures have almost uniformly been upheld by the
state courts, which by virtue of the localized nature of traffic regulation have had considerable
occasion to deal with the issue,” and “state courts have overwhelmingly concluded that, even if an
inventory is characterized as a ‘search,’ the intrusion is constitutionally permissible.” South
Dakota v. Opperman, 428 U.S. at 369-371.
        Finally, in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987),
another vehicle inventory search was at issue. After the defendant was arrested and taken into
custody for driving under the influence of alcohol, but before a tow truck took his van to an
impoundment lot, an officer inventoried the contents of the van. A backpack in the van contained
controlled substances, cocaine paraphernalia, and cash. Bertine noted that the van was inventoried
in accordance with local police procedures. Further, “[t]he standard of probable cause is peculiarly
related to criminal investigations, not routine, noncriminal procedures. . . . The probable-cause
approach is unhelpful when analysis centers upon the reasonableness of routine administrative
caretaking functions, particularly when no claim is made that the protective procedures are a
subterfuge for criminal investigations.” Colorado v. Bertine, 479 U.S. at 371 (quoting from South
Dakota v. Opperman, supra.) Referring to Opperman, the Bertine court “observed that our cases
accorded deference to police caretaking procedures designed to secure and protect vehicles and
their contents within police custody.” Colorado v. Bertine, 479 U.S. at 372.
        Notably, none of the U.S. Supreme Court community caretaking cases involved traffic
stops of lawfully operated vehicles, nor did they involve warrantless searches into homes.
Nevertheless, the community caretaking exception has been expanded to include traffic stops of
vehicles, see State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007) (reasonable for officer to
conduct safety check of vehicle that was driving erratically under community caretaking exception
to the Fourth Amendment); and warrantless entry into homes, see United States v. Smith, 820 F.3d
356 (8th Cir. 2016) (community caretaking functions are performed by law enforcement to help
those in danger; police officer may enter a residence without a warrant as a community caretaker
where the officer has a reasonable belief than an emergency exists requiring his or her attention).
        It has been questioned whether Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L.
Ed. 2d 706 (1973), actually “intended to create a new stand-alone warrant exception.” State v.
Vargas, 63 A.3d 175, 182 (N.J. 2013). The New Jersey Supreme Court points out that Cady,
Opperman, and Bertine, did not carve out community caretaking as an exception to the warrant
requirement. “Those cases never even referred to a community-caretaking doctrine. All three cases



                                                -8-
involved permissible inventory searches conducted in accordance with standard police
procedures.” State v. Vargas, 63 A.3d at 184. That said, the New Jersey Supreme Court goes on to
state, “No one disputes that police officers acting in a community-caretaking capacity provide a
wide range of social services outside of their traditional law enforcement and criminal
investigatory roles.” Id. at 188. “In performing community-caretaking tasks, however, police
officers must still comply with the dictates of the Fourth Amendment[.]” Id. “[O]ur constitutional
jurisprudence recognizes that police officers or first responders, in carrying out their
community-caretaking responsibilities, may not have time to secure a warrant when emergent
circumstances arise and an immediate search is required to preserve life or property.” Id. at 188.
“Under our state law jurisprudence--outside of the car-impoundment context--warrantless searches
justified in the name of the community-caretaking doctrine have involved some form of exigent or
emergent circumstances.” Id. at 189.
        It certainly makes sense that warrantless searches under a community caretaking exception
should only include those situations in which an emergency exists requiring immediate action to
protect life or prevent serious injury. Further, such an emergency should not only be subjectively
perceived by a police officer based on that officer’s training and experience, but all objective
observations and considerations should likewise support that such an emergency or dangerous
situation existed or was reasonably perceived. Past Nebraska cases have been consistent with this
standard. In the first Nebraska appellate decision to apply this exception, State v. Smith, 4 Neb.
App. 219, 540 N.W.2d 374 (1995), the defendant’s vehicle was stopped at a stop sign with its
engine running and brake lights on, and the vehicle failed to move even after a passing deputy
drove one-half mile past the vehicle. When the deputy turned around and approached the vehicle,
the defendant appeared to be either asleep or unconscious. This court relied on language from
Cady, regarding the community caretaking functions of police officers, to conclude that the deputy
“had a justifiable reason to believe that something was wrong[,]” he was “justified in believing
that an exigent circumstance might exist, and he had good reason to make contact with [the
defendant] and to provide him aid, if necessary.” State v. Smith, 4 Neb. App. at 226, 540 N.W.2d
at 379. Smith demonstrates that, in addition to the officer’s stated reason for being concerned
something was wrong, all objective observations and considerations likewise supported that such
an emergency or dangerous situation may have existed.
        The community caretaking exception was next raised in State v. Bartholomew, 258 Neb.
174, 602 N.W.2d 510 (1999). In that case, a sheriff’s deputy stopped the defendant’s vehicle
because of sparks being emitted from the vehicle. The defendant was subsequently convicted of
driving with a suspended license; he challenged the traffic stop on appeal. Our Supreme Court
noted that it was a traffic infraction to drive a vehicle with a muffler in disrepair, and a traffic
violation creates probable cause to stop the driver of a vehicle. The Supreme Court was also asked
to recognize a community caretaking exception to the Fourth Amendment, but the court declined
to consider “the so-called community caretaking exception” given the circumstances of the case.
Id. at 179, 602 N.W.2d at 514.
        The following year, in State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000), this court
found that the community caretaking exception did not apply because there was no evidence of
exigent circumstances. In Scovill, incriminating evidence was found when a trooper searched a car



                                               -9-
following a one-car accident. The trooper opened a glove box because he was curious as to who
owned the car. The State argued that the search of the glove box fell under a public caretaking
function as part of an inventory search. This court disagreed, stating, “While searches and seizures
conducted pursuant to a warrant supported by probable cause are generally considered to be
reasonable, warrantless searches and seizures are per se unreasonable under the Fourth
Amendment, subject only to a few specifically established and well-delineated exceptions which
must be jealously and carefully drawn . . . and applied only where there is a showing that the
exigencies of the situation made that course imperative.” Id. at 124, 608 N.W.2d at 630 (quoting
from State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997)). The “recognized exceptions to the
Fourth Amendment’s warrant requirement as applied to automobiles include probable cause,
exigent circumstances, consent, search incident to arrest, inventory search, and plain view.” State
v. Scovill, 9 Neb. App. at 125, 608 N.W.2d at 630 (quoting from State v. Konfrst, 251 Neb. 214,
556 N.W.2d 250 (1996)). Scovill noted that the “progeny of U.S. Supreme Court cases regarding
inventory searches has consistently required showing some standardized procedure or established
routine[,]” and that “requiring some standardized criteria or established routine to regulate
inventory searches prevents such searches from becoming a pretext for general rummaging to find
incriminating evidence.” Id. at 126, 608 N.W.2d at 630-31. After concluding that the State failed
to put on any evidence regarding procedures or routines, Scovill held that the inventory search
exception did not apply, and further, since there was no evidence suggesting the presence of any
exigent circumstances, the community caretaking exception also did not apply.
         The only Nebraska Supreme Court case to address the community caretaking exception,
State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007), involved an officer conducting a safety
check of vehicle that was being driven erratically--crossing a center line, slowing down almost to
a complete stop in the middle of the road, and finally pulling onto the shoulder of the highway.
Bakewell adopted the community caretaking exception to the Fourth Amendment, but “in doing
so, [it] emphasize[d] the narrow applicability of this exception[,]” and it agreed “with other courts
which have held that this exception should be narrowly and carefully applied in order to prevent
its abuse.” Id. at 377, 730 N.W.2d at 338 (emphasis supplied). Determining under what
circumstances the exception should apply, our Supreme Court adopted the standard that the totality
of the circumstances surrounding the stop should be assessed, “including all of the objective
observations and considerations, as well as the suspicion drawn by a trained and experienced police
officer by inference and deduction.” Id. at 377, 730 N.W.2d at 339. This standard necessitates
consideration of both subjective and objective evidence in a totality of the circumstances analysis.
The officer’s subjective reasoning for the stop should be supported by objective observations and
considerations surrounding the stop, as occurred in Bakewell.
         In State v. Moser, 20 Neb. App. 209, 822 N.W.2d 424 (2012), this court addressed the
community caretaking exception in a postconviction appeal asserting ineffective assistance of
counsel (counsel advised defendant he had no defense to the stop of his vehicle). In Moser, a
trooper observed the defendant’s vehicle traveling on a highway with a portion of the passenger
side of the windshield shattered, and the trooper believed the driver would have difficulty seeing
cross-traffic from the right, and that “the shatter pattern of [the defendant’s] windshield could
cause a wreck and was a safety concern.” Id. at 214, 822 N.W.2d at 429. After determining that no



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traffic violation supported the stop of the defendant’s vehicle, this court then considered the
community caretaking exception. Moser concluded that the defendant’s vehicle had not been
traveling in an erratic manner, such as the vehicle in State v. Bakewell, supra; it was not stopped
in traffic, as the vehicle in State v. Smith, supra; nor was there any evidence it had been involved
in an accident. “In short, there was no sense of urgency to check on the welfare of the driver in
this case, as was present in Bakewell or Smith.” State v. Moser, 20 Neb. App. at 223, 822 N.W.2d
at 435. The matter was remanded for further proceedings.
         Finally, in State v. Rohde, 22 Neb. App. 926, 864 N.W.2d 704 (2015), the community
caretaking exception was applied to circumstances where in the early morning hours, a police
officer observed a female passenger with her head and part of her torso “sticking out of the
moonroof” of a vehicle and she was waving her arms. Id. at 928, 864 N.W.2d at 707. The officer
stopped the vehicle because he thought the conduct was unsafe and illegal. The driver was arrested
and convicted for driving under the influence of alcohol. Since there was no evidence of any traffic
infraction justifying the stop, Rohde considered the community caretaking exception. Rohde noted
that the two cases in Nebraska which had applied the community caretaking exception to permit
traffic stops without unlawful conduct had involved situations in which “the individual potentially
requiring assistance was the driver,” rather than a passenger in the vehicle. Id. at 934, 864 N.W.2d
at 710. Rohde concluded that the community caretaking exception is “equally applicable to drivers
and passengers or occupants of a vehicle.” Id. at 942, 867 N.W.2d at 715. Again, Rohde
demonstrates that when considering the totality of the circumstances, the officer’s concern was
also supported by objective observations and considerations surrounding the stop which
demonstrated that this was an exigent circumstance warranting the stop to make sure the observed
female was not in distress.
         All of the Nebraska cases considering the community caretaking doctrine have required
objectively observable emergency or exigent circumstances. In the present case, the majority
focuses largely on Shepler’s subjectively stated reason--he was concerned about Rivera driving
into other people in the park located 15 to 20 feet away. However, the objective evidence shows
that Rivera’s vehicle was moving very slowly, in fact, so slowly that Shepler had time to exit his
vehicle and walk around the front of it, and then walk towards Rivera’s vehicle to stop it,
apparently without fear that he would be struck. Further, Shepler conceded that Rivera could have
maneuvered his vehicle back onto the paved roadway without striking anyone. The majority states
that “a moving vehicle at any speed is inherently dangerous to pedestrians and a collision can be
fatal.” If this is to be the test, then every moving, lawfully operated vehicle becomes subject to
being stopped under the community caretaking exception if, for example, an officer’s stated reason
for the stop was his or her belief that the driver may not have observed pedestrians crossing the
street down the road, even though the vehicle was moving at an extremely slow speed.
         My dissent favors a narrow application of the community caretaking exception which
would not frustrate the important noninvestigatory functions of our law enforcement agencies.
There is no question that emergency or exigent circumstances will arise in which law enforcement
will need to act quickly to protect lives and prevent injuries while engaged in community
caretaking functions. However, the community caretaking exception should only be applied when
those emergency or exigent circumstances are supported by both the officer’s subjective concerns



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(based on the officer’s training and experience), and the objective observations and considerations
surrounding the emergency or exigency, when viewing the totality of the circumstances. The
objective observations and considerations in this case do not support an emergency or exigent
circumstance being created by Rivera’s vehicle slowly passing Shepler’s vehicle. A narrow and
careful application of the community caretaking exception does not justify the traffic stop in this
case.




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