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            Decisions of the Nebraska Court of A ppeals
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                               STATE v. WOLDT
                             Cite as 23 Neb. App. 42




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

                      Filed July 21, 2015.    No. A-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
      protections is a question of law that an appellate court reviews indepen-
      dently 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. The Fourth Amendment to
      the U.S. Constitution and article I, § 7, of the Nebraska Constitution
      protect individuals against unreasonable searches and seizures by the
      government.
  4.	 ____: ____. 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.
 5.	 Constitutional Law: Investigative Stops: Motor Vehicles: Police
      Officers and Sheriffs: Search and Seizure. Temporary detention of
      individuals during the stop of an automobile by the police, even if only
      for a brief period and for a limited purpose, constitutes a seizure of per-
      sons within the meaning of the Fourth Amendment.
 6.	 Constitutional Law: Investigative Stops: Warrantless Searches:
      Probable Cause: Police Officers and Sheriffs. Police can constitu-
      tionally stop and briefly detain a person for investigative purposes if
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           Decisions of the Nebraska Court of A ppeals
                 23 Nebraska A ppellate R eports
                              STATE v. WOLDT
                            Cite as 23 Neb. App. 42

     the police have a reasonable suspicion, supported by articulable facts,
     that criminal activity exists, even if probable cause is lacking under the
     Fourth Amendment.
 7.	 Constitutional Law: Search and Seizure: Motor Vehicles. A motorist
     has a reasonable expectation of privacy which is not subject to arbi-
     trary invasions solely at the unfettered discretion of police officers in
     the field.
 8.	 Constitutional Law: Highways: Motor Vehicles: Investigative Stops:
     Search and Seizure. A vehicle stop at a highway checkpoint effectuates
     a seizure within the meaning of the Fourth Amendment.
 9.	 Highways: Investigative Stops. A highway checkpoint must be both
     authorized by an approved plan and conducted in a manner that com-
     plies with the plan and the policy established by the authority at the
     policymaking level.
10.	 Appeal and Error. An appellate court will not consider an issue on
     appeal that was not presented to or passed upon by the trial court.
11.	 Double Jeopardy: Evidence: New Trial: Appeal and Error. The
     Double Jeopardy Clause does not forbid a retrial so long as the sum of
     all the evidence admitted by a trial court, whether erroneously or not,
     would have been sufficient to sustain a guilty verdict.

  Appeal 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 District
Court reversed, and cause remanded with directions.
   Thomas B. Donner for appellant.
  Jon Bruning, Attorney General, and Austin N. Relph for
appellee.
   Moore, Chief Judge, and Irwin and R iedmann, Judges.
   Moore, Chief Judge.
                      INTRODUCTION
   Adam T. Woldt appeals from the order of the district
court for Cuming County which affirmed his conviction in
the county court for driving under the influence (DUI). The
sole issue presented to us in this appeal is whether the stop
of Woldt’s vehicle for the purpose of gathering informa-
tion about a third party’s possible criminal activity violated
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                        STATE v. WOLDT
                      Cite as 23 Neb. App. 42

Woldt’s constitutional right to be free from an unreason-
able search and seizure. We conclude that the stop was
unlawful and that Woldt’s motion to suppress should have
been sustained.
                        BACKGROUND
   On September 26, 2013, the State filed a complaint in the
county court, charging Woldt with first-offense DUI in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a Class W
misdemeanor.
   Woldt filed a motion to suppress, which was heard by the
county court on November 5, 2013. The State presented tes-
timony from police officers involved in the investigations on
the evening in question. Woldt testified and also presented
testimony from the other individual who was investigated on
the evening in question.
   The evidence at the hearing showed generally that on
September 13, 2013, Officer Randy Davie of the Wisner Police
Department received a call from dispatch about a report that
someone driving a white Chevrolet pickup was knocking over
traffic cones on the highway that is the main street of Wisner,
Nebraska. At the scene, Davie observed 38 cones knocked
down along both sides of the highway.
   While picking up the cones, Davie heard squealing tires
north of his location. After picking up the cones, he drove
north on a side street. Davie was driving without lights because
he “was going to see who was squealing their tires.” He then
observed a white Chevrolet pickup followed within a car
length or less by a dark-colored pickup proceeding toward him
south on the side street.
   When the white pickup neared Davie’s location, Davie
turned on his patrol car’s headlights and extended his arm
straight out of the patrol car’s window indicating that the
white pickup should stop. Davie did not turn on his patrol
car’s overhead lights or sirens during the stop of the white
pickup. The driver of the white pickup, whom Davie recog-
nized as Jacob Biggerstaff, pulled over and stopped south of
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

Davie’s patrol car by about four to five car lengths. Davie
stopped the white pickup because he thought that it might
have been involved in knocking over the traffic cones on
the highway. Davie exited his patrol car, left its door open,
and walked over to contact Biggerstaff. Upon contacting
Biggerstaff, Davie smelled the odor of alcohol, and at that
point, he began a DUI investigation of Biggerstaff. Davie did
not ask Biggerstaff about the traffic cone incident but asked
him to step out of the pickup. When Biggerstaff complied,
Davie took him to the patrol car. Davie remained outside of
the patrol car, and Biggerstaff seated himself in the passenger
side of the patrol car without Davie’s assistance.
   While this was happening, the driver of the dark-colored
pickup, whom Davie recognized as Woldt and whom Davie
knew to be a city employee, had parked his pickup across from
Davie’s patrol car on the west side of the side street near an
intersection. Davie testified that the front of his patrol car was
about even with the intersection and that Woldt’s pickup was
parked with the rear 3 to 4 feet extending into the intersec-
tion. Woldt testified that he was in the process of making the
turn south onto the side street when he saw Davie motion to
stop Biggerstaff. Woldt pulled over and parked behind another
parked car. According to Woldt, he was unable to proceed
south down the street because his line of travel was blocked
by Davie’s open car door and he could not continue closer
to the curb because of the parked car in front of him. Woldt
remained in his pickup with the window rolled down. As Davie
and Biggerstaff were approaching the patrol car, Woldt began
to reverse his pickup.
   Davie then held up his hand and gestured for Woldt to
approach. Woldt testified that Davie said something to him
at that point, but he could not remember exactly what was
said. Davie also could not remember whether he said anything
to Woldt. Davie testified that it was his intent to speak with
Woldt about whether he had seen Biggerstaff do anything
and to ask why he was following Biggerstaff. Davie did not
observe anything about the operation of Woldt’s pickup that
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

led him to believe Woldt had violated any rules of the road
or any other state laws or city ordinances. Davie testified that
he was concerned with the white pickup, and if Woldt had
not stopped initially, he would not have stopped him because
he “had no reason to stop him.” During redirect examination
by the State, Davie agreed that he probably could have cited
Woldt for following Biggerstaff too closely.
   Upon approaching Woldt’s pickup, Davie smelled the odor
of alcohol and began a second DUI investigation. He asked
Woldt whether he had been drinking, and at that point, Woldt
“just put his head down.” Davie asked Woldt if he was drunk,
and Woldt responded by shutting off his pickup and handing
the keys to Davie. Davie contacted another officer for assist­
ance. Woldt was then given a field sobriety test and prelimi-
nary breath test and was arrested for DUI.
   On December 3, 2013, the county court entered an order
overruling Woldt’s motion to suppress. In analyzing the stop
of Woldt, the court utilized the three-part balancing test out-
lined in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed.
2d 357 (1979), which balances the gravity of the public con-
cern served by the seizure and the degree the seizure advances
the public interest against the severity of the interference with
the seized person’s individual liberty.
   The county court found Davie’s actions were reasonable.
The court reasoned that even though the possible offenses
Davie was investigating were most likely misdemeanors, the
matter did involve operation of a motor vehicle on the four-
lane public highway that passes through Wisner. The court
concluded that the acts committed in Wisner during the night
of September 13, 2013, posed a significant threat to the safety
of citizens driving the public roads in and through Wisner.
The court found it was also reasonable for Davie to conclude
that the driver of the dark-colored pickup that was following
Biggerstaff would have been an eyewitness to Biggerstaff’s
driving. The court stated, “This eyewitness evidence of . . .
Biggerstaff’s driving would be essential to proving the ele-
ment of whether . . . Biggerstaff was ‘under the influence of
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

alcohol’ at a jury trial on this charge.” The court found that
the degree of interference with Woldt’s liberty in this case
was outweighed by the other two elements of the balancing
test outlined in Brown v. Texas, supra. The court observed
that Woldt had voluntarily stopped and remained stopped
on the street during the entire time Davie had contact with
Biggerstaff and that Woldt’s pickup was stopped in the street
with the back part of it partially in the intersection. The
court stated, “It appears that . . . Davie intended to speak to
. . . Woldt momentarily before continuing his investigation of
. . . Biggerstaff.” The court concluded that Davie’s interfer-
ence with Woldt’s liberty was slight and reiterated its finding
that the stop of Woldt was reasonable.
    On February 4, 2014, a bench trial on stipulated facts
was held before the county court. At trial, Woldt renewed
the objections raised in his motion to suppress and made at
the suppression hearing. The court overruled Woldt’s objec-
tions. The court received into evidence the transcription of
the suppression hearing, including the exhibits received at
the hearing, as well as the parties’ stipulation. The stipula-
tion included the fact that if called to testify, witnesses would
testify that on September 13, 2013, upon Woldt’s completion
of field sobriety tests, a law enforcement officer had reason-
able grounds to believe Woldt was driving or was in actual
physical control of a motor vehicle while under the influence
of alcohol. The stipulation also provided that a chemical test
of Woldt’s breath showed that he had a concentration of .08
of 1 gram or more by weight of alcohol per 210 liters of his
breath, with the specific result being .148. The court found
Woldt guilty of first-offense DUI and sentenced him to proba-
tion for a period of 6 months, ordered him to pay a fine of
$500 and all costs of prosecution, and revoked his operator’s
license for 60 days.
    Woldt appealed his conviction and sentence to the dis-
trict court, and in his statement of errors, he asserted that
the county court erred in overruling his motion to suppress,
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

admitting evidence obtained after the stop of his pickup, and
finding sufficient evidence to convict him.
   Following a hearing, the district court entered an order on
June 17, 2014, affirming Woldt’s conviction and sentence.
On appeal, Woldt did not dispute the appropriateness of the
county court’s use of the balancing test from Brown v. Texas,
433 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), even
though this case is not one involving a checkpoint stop, but
he argued that the county court did not place the appropriate
weight on the factors of the test.
   With respect to the gravity of the public concern served,
the district court noted that in addition to the knocked-over
traffic cones, Davie was investigating the possibility that
Biggerstaff had been driving while under the influence. The
court considered this to be significant and did not consider
this crime to be less severe than those addressed in cases cited
by Woldt.
   Next, the district court addressed Woldt’s argument that
without a sufficient nexus between the alleged criminal act
and the need to stop a potential witness, the public inter-
est could not be served sufficiently to allow for his seizure.
Woldt agreed that an investigation into Biggerstaff’s com-
mission of a crime had begun, but he argued that Davie had
obtained insufficient information in order to stop Woldt and
ask what he knew. The court noted Davie’s observation of
Woldt’s following Biggerstaff closely as they approached
Davie’s patrol car and of Woldt’s sitting in his parked pickup
with its lights on and the window down as if he might want
to say something to Davie. The court found it reasonable to
believe that Woldt had some information which might have
assisted in the investigation of Biggerstaff and considered
this a sufficient nexus to support Davie’s actions on the night
in question.
   Finally, the district court considered Woldt’s argument that
the interference with his liberty interest was severe and out-
weighed the other two factors. The court noted that although
there was conflicting evidence about whether Woldt could
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

have driven past Davie and Biggerstaff, he did not do so.
The court found no evidence of any command being made
by Davie as neither Davie nor Woldt could remember what,
if anything, was said. The court found that although Davie
could not have been absolutely certain Woldt had any infor-
mation about Biggerstaff, considering the totality of the cir-
cumstances, it was reasonable for Davie to perceive either that
Woldt wanted to convey some information or that he might
possess information helpful to the investigation. The court
concluded that the degree of interference with Woldt’s liberty
interest on the night in question was outweighed by the grav-
ity of the public concern served by the seizure along with the
degree to which the seizure advanced the public interest in
this case. Accordingly, the district court affirmed the county
court’s decision with regard to Woldt’s motion to suppress
in its entirety. Woldt subsequently perfected his appeal to
this court.
                 ASSIGNMENTS OF ERROR
   Woldt asserts, consolidated and restated, that the district
court erred in affirming the county court’s (1) overruling of
his motion to suppress and (2) finding of sufficient evidence
to convict him. However, Woldt does not argue his sufficiency
of the evidence assignment of error. Accordingly, we only
address his arguments with respect to the motion to suppress.
An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to
be considered by an appellate court. State v. Turner, 288 Neb.
249, 847 N.W.2d 69 (2014).
                   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. State
v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014). Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error, but whether those facts trigger or vio-
late Fourth Amendment protections is a question of law that
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

an appellate court reviews independently of the trial court’s
determination. State v. Piper, supra. The ultimate determi-
nations 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. State v. Dalland, 287 Neb. 231, 842
N.W.2d 92 (2014).
                           ANALYSIS
   [3-6] At issue in this case is whether Davie’s suspicionless
stop of Woldt to gather information about Biggerstaff’s pos-
sible criminal activity violated Woldt’s Fourth Amendment
rights. The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government.
State v. Piper, supra. A seizure in the Fourth Amendment con-
text occurs only if, in view of all the circumstances surround-
ing the incident, a reasonable person would have believed that
he or she was not free to leave. State v. Avey, 288 Neb. 233,
846 N.W.2d 662 (2014). Temporary detention of individuals
during the stop of an automobile by the police, even if only
for a brief period and for a limited purpose, constitutes a sei-
zure of persons within the meaning of the Fourth Amendment.
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
Police can constitutionally stop and briefly detain a person
for investigative purposes if the police have a reasonable
suspicion, supported by articulable facts, that criminal activ-
ity exists, even if probable cause is lacking under the Fourth
Amendment. State v. Allen, 269 Neb. 69, 690 N.W.2d 582
(2005), disapproved on other grounds, State v. McCulloch, 274
Neb. 636, 742 N.W.2d 727 (2007).
   There is no dispute in this case that a seizure of Woldt
occurred when he was stopped by Davie. In determining
whether the seizure violated Woldt’s Fourth Amendment
rights, both the county court and the district court applied the
three-part balancing test outlined in Brown v. Texas, 443 U.S.
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                          STATE v. WOLDT
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47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), which recognizes
that seizures without reasonable suspicion may be reason-
able under certain circumstances. In that case, police officers
stopped the defendant who was walking in an area with a
high rate of drug traffic. The officers did not suspect him of
criminal activity but wanted to determine his identity under a
state law requiring a lawfully stopped individual to identify
himself or herself. The Court found that the defendant had
been seized in violation of the Fourth Amendment to the U.S.
Constitution and stated:
         The reasonableness of seizures that are less intru-
      sive than a traditional arrest . . . 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 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 interference with individual liberty. . . .
         A central concern in balancing these competing con-
      siderations in a variety of settings has been to assure that
      an individual’s reasonable expectation of privacy is not
      subject to arbitrary invasions solely at the unfettered dis-
      cretion of officers in the field. . . . To this end, the Fourth
      Amendment requires that a seizure must be based on
      specific, objective facts indicating that society’s legiti-
      mate interests require the seizure of the particular indi-
      vidual, or that the seizure must be carried out pursuant
      to a plan embodying explicit, neutral limitations on the
      conduct of individual officers.
Brown v. Texas, 443 U.S. at 50-51 (citations omitted).
   The U.S. Supreme Court also applied the balancing test
from Brown v. Texas, supra, in Illinois v. Lidster, 540 U.S.
419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004). The Lidster
Court addressed the reasonableness of a suspicionless check-
point stop to gather information regarding a fatal hit-and-run
accident that occurred 1 week prior at that location. In that
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                          STATE v. WOLDT
                        Cite as 23 Neb. App. 42

case, police set up a checkpoint 1 week after a hit-and-run
accident at the same location where the accident occurred.
Officers briefly stopped each vehicle, asked whether the occu-
pants had seen anything the week before, and gave each
driver a flyer with relevant information. When the defendant
approached, he swerved and almost hit an officer, and upon
contact, the officer smelled alcohol on his breath. Following a
sobriety test, the defendant was arrested and convicted of driv-
ing while under the influence of alcohol.
   In Lidster, the U.S. Supreme Court distinguished
Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L.
Ed. 2d 333 (2000), a case relied on by the Illinois Supreme
Court in its decision below. The primary purpose of the
checkpoint at issue in Edmond was to determine whether the
vehicle’s occupants were committing a crime, and the Court
found that type of checkpoint violated the Fourth Amendment.
In distinguishing Edmond, the Lidster Court stated:
     [I]nformation-seeking highway stops are less likely to
     provoke anxiety or to prove intrusive [than the type of
     stop in Edmond]. The stops are likely brief. The police
     are not likely to ask questions designed to elicit self-
     incriminating information. And citizens will often react
     positively when police simply ask for their help . . . .
540 U.S. at 425. The Lidster Court stated further:
     [T]he law ordinarily permits police to seek the voluntary
     cooperation of members of the public in the investiga-
     tion of a crime. “[L]aw enforcement officers do not
     violate the Fourth Amendment by merely approaching
     an individual on the street or in another public place, by
     asking him if he is willing to answer some questions,
     [or] by putting questions to him if the person is willing
     to listen.” . . . That, in part, is because voluntary requests
     play a vital role in police investigatory work. . . .
         The importance of soliciting the public’s assistance
     is offset to some degree by the need to stop a motorist
     to obtain that help—a need less likely present where a
     pedestrian, not a motorist, is involved. The difference
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      is significant in light of our determinations that such
      an involuntary stop amounts to a “seizure” in Fourth
      Amendment terms. . . . That difference, however, is not
      important enough to justify an Edmond-type rule here.
      After all, as we have said, the motorist stop will likely
      be brief. Any accompanying traffic delay should prove no
      more onerous than many that typically accompany nor-
      mal traffic congestion. And the resulting voluntary ques-
      tioning of a motorist is as likely to prove important for
      police investigation as is the questioning of a pedestrian.
      Given these considerations, it would seem anomalous
      were the law (1) ordinarily to allow police freely to seek
      the voluntary cooperation of pedestrians but (2) ordinar-
      ily to forbid police to seek similar voluntary cooperation
      from motorists.
540 U.S. at 425-26.
   The Lidster Court then applied the balancing test from
Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d
357 (1979), finding the relevant public concern at issue,
investigation of a fatal traffic accident, to be grave, noting
that the police objective was to seek help in finding the per-
petrator of a specific and known crime. The Court also found
that the checkpoint stops significantly advanced the grave
public concern as they were appropriately tailored to meet
law enforcement’s criminal investigatory needs. Specifically,
the checkpoint was set up 1 week later near the accident
location, and at about the same time of night, and it sought
information from drivers who might have been in the area
when the crime occurred. Finally, the Court found that the
interference with drivers’ liberty interest was minimal. The
police systematically and briefly stopped all vehicles at the
checkpoint, asked if they had information, and handed out
flyers. Accordingly, the Court concluded that the checkpoint
was constitutional.
   [7] The Nebraska Supreme Court has also addressed the
constitutionality of checkpoint stops. In State v. Crom, 222
Neb. 273, 383 N.W.2d 461 (1986), Nebraska adopted the
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                         STATE v. WOLDT
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unfettered discretion standard of Brown v. Texas, supra. In
the Crom case, several low-ranking police officers decided to
set up transitory checkpoints and stop every fourth vehicle to
check the operator’s license and vehicle registration, although
the real purpose of the stops was to detect alcohol use. The
checkpoints were not subject to any standards, guidelines, or
procedures established by the police department, and the offi-
cers were free to move the checkpoints from place to place at
various times as they saw fit. The court cited Brown and found
that a motorist has a reasonable expectation of privacy which
is not subject to arbitrary invasions solely at the unfettered
discretion of police officers in the field. State v. Crom, supra.
The court found the checkpoints at issue unconstitutional
because there was no plan made at the policymaking level of
the police department or elsewhere, leaving the officers free
to determine everything about the checkpoints and subjecting
stopped motorists to arbitrary invasion at the officers’ unfet-
tered discretion.
   [8,9] More recently, in State v. Piper, 289 Neb. 364, 855
N.W.2d 1 (2014), the Nebraska Supreme Court applied Brown
v. Texas, supra, and cited Illinois v. Lidster, 540 U.S. 419, 124
S. Ct. 885, 157 L. Ed. 2d 843 (2004), in determining that a
stop of the defendant’s vehicle at a highway checkpoint con-
ducted by the Nebraska State Patrol was reasonable. When
the defendant in Piper stopped at the checkpoint, the officer
observed that her eyes were bloodshot and watery and that
the odor of alcohol emanated from the vehicle. Following the
administration of field sobriety tests and a preliminary breath
test, the defendant was arrested and subsequently convicted
of DUI. On appeal, the court observed that a vehicle stop at a
highway checkpoint effectuates a seizure within the meaning
of the Fourth Amendment. State v. Piper, supra. The court,
citing Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447,
148 L. Ed. 2d 333 (2000), observed that the public interest
served by a checkpoint is assessed according to the primary
purpose of the checkpoint, that checkpoints with the pri-
mary purpose of uncovering evidence of ordinary wrongdoing
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violate the Fourth Amendment. The court also noted that in
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.
Ct. 2481, 110 L. Ed. 2d 412 (1990), the U.S. Supreme Court
approved the use of sobriety checkpoints intended to prevent
drunk driving. The Piper court considered the purpose of
the checkpoint, the degree of intrusion, and the discretion of
the officers. The court found permissible the purpose of the
checkpoint, which was called a vehicle check but was funded
by an alcohol enforcement grant and intended to target alco-
hol violations. The degree of intrusion was minimal as, absent
signs of criminal activity, drivers were allowed to proceed
after a brief check of their condition, license, vehicle registra-
tion, insurance, and certain aspects of the vehicle condition.
In considering the officers’ discretion, the court noted that a
highway checkpoint must be both authorized by an approved
plan and conducted in a manner that complies with the plan
and the policy established by the authority at the policymak-
ing level. State v. Piper, supra. The court analyzed various
aspects of the plan approving the checkpoint and of the offi-
cers’ application of the plan at the checkpoint, and it found
that the plan complied with State Patrol policy and did not
allow the officers to exercise unfettered discretion in admin-
istering the checkpoint. Accordingly, the court affirmed the
defendant’s conviction and sentence.
   The present case, while involving an information gathering
stop by law enforcement, did not involve a stop at a check-
point or roadblock and thus was not subject to the policy
protections that were present with respect to the plan for the
checkpoint in Piper. Accordingly, we turn to cases that have
construed and applied Brown v. Texas, 443 U.S. 47, 99 S. Ct.
2637, 61 L. Ed. 2d 357 (1979), and Illinois v. Lidster, supra,
in other situations where vehicles have been detained by law
enforcement for the purpose of gathering information. We have
found no such cases in Nebraska. However, we do note the
case of State v. Ryland, 241 Neb. 74, 486 N.W.2d 210 (1992),
wherein the Nebraska Supreme Court found the stop of the
defendant violated Fourth Amendment principles. In that case,
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

the officer located and stopped the defendant to get a statement
from him about an accident that he witnessed the week before.
When the officer made contact, he noticed signs of alcohol
impairment by the defendant, and a DUI investigation, arrest,
and conviction followed. The officer acknowledged that there
was not an emergency situation. The court found that there
was no probable cause or reasonable suspicion of criminal
activity involved in the stop of the defendant.
   In State v. Garrison, 911 So. 2d 346 (La. App. 2005), the
Louisiana Court of Appeals held that a university police offi-
cer who heard a disturbance in the university’s offsite campus
parking lot had reasonable grounds to stop the defendant. The
officer was on patrol in a marked car and was driving near
campus when he heard the sound of tires squealing from the
offsite parking lot. The officer observed a driver approach-
ing the area. The officer did not know if a crime had been
committed, but he tried to get the driver’s attention so he
could tell him to be careful. The officer felt the driver did
not notice him, so he activated his car’s emergency lights and
pulled the driver over. The officer asked the driver whether
he had squealed his tires, and the driver denied having done
so. Because the officer smelled alcohol, he initiated a driving
while intoxicated investigation, which led to the arrest and
conviction of the defendant. In finding the stop reasonable,
the Louisiana court noted that the officer’s action in getting
the defendant to stop was the only means available in getting
his attention long enough to request information. The court
also observed that it was not a checkpoint stop, that the officer
was investigating a disturbance of public concern, and that the
officer stopped a vehicle leaving the area to inquire about what
its occupants might have seen or heard. The majority found
the intrusion under those circumstances to be minimal. We
note that the dissenting opinion in Garrison advocated that the
investigation of the incident in question was not a disturbance
of public concern.
   In Gipson v. State, 268 S.W.3d 185 (Tex. App. 2008),
police were dispatched to investigate a robbery at a retail
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

store parking lot and were given a description of the suspect.
Upon arrival at the scene, an officer entered the parking lot
with his vehicle’s lights and siren activated in the area where
the suspect had been seen fleeing. He observed a car with
several occupants preparing to exit the parking lot and posi-
tioned his vehicle to stop the car. He felt the car’s occupants
might be potential suspects or witnesses to the robbery. As
the officer exited his vehicle and approached, the driver stated
he had witnessed the robbery. The officer then detained and
questioned the occupants, one of which was the defendant.
As he was doing so, another officer approached and based
on the defendant’s demeanor initiated a pat-down search of
all of the occupants. As a result of the pat-down search of
the defendant, credit cards belonging to the robbery victim
were recovered, and the defendant was arrested. In applying
the reasoning employed in Illinois v. Lidster, 540 U.S. 419,
124 S. Ct. 885, 157 L. Ed. 2d 843 (2004), the Texas Court
of Appeals found that the occupants were lawfully detained.
The court reasoned that the officer was investigating a spe-
cific and known crime, which was of grave public concern.
The court determined that the stop advanced that concern as
it was used to seek information from possible witnesses who
were in the vicinity at the time of the crime in the area where
the suspect was last seen. The court also found the liberty
intrusion minimal as the officer had only blocked the car and
started walking toward it, when the driver announced he was
a witness. Accordingly, further detention of the car was a
result of the need to question an actual witness, rather than a
potential one.
   Another case applying Illinois v. Lidster, supra, to a non-
checkpoint stop and finding the stop reasonable was U.S. v.
Brewer, 561 F.3d 676 (7th Cir. 2009). In that case, a police
officer was responding at 2:30 a.m. to a dispatch report of a
fight at an apartment complex when he heard what sounded
like gunshots. As he approached the complex on the only
access street, he was passed by a white sport utility vehicle
(SUV) going the other way. No other vehicles were on the
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

road. He alerted other officers to watch for the SUV and
proceeded into the apartment complex where bystanders told
him the shots had come from a white SUV. The officer passed
the information along to dispatch, but by that point, the SUV
had already been stopped by a second officer. Upon inquiry
by the second officer, the driver admitted he had two guns.
Those guns, as well as additional weapons, were found in
the SUV.
   On appeal, the Seventh Circuit Court of Appeals observed
that it was likely that whoever had fired the shots had left the
complex. The court further observed that the fact the SUV
was driving away from it on the only access street at a time
when few vehicles were on the road reinforced the suspicion
that even if the driver was not the gunman, he may well have
information important for police safety. The court noted the
analysis in Illinois v. Lidster, supra, and other roadblock cases
and observed that this was not a case of random unconstrained
conduct by the first officer in deciding that the first vehicle
he encountered leaving the complex should be stopped. The
court reasoned that, as in Lidster, officers had a compelling
safety-related reason to question the driver of the first vehicle
spotted leaving the complex where shots had been fired, and
asking about a gun was the natural first question. The court
concluded that the police acted reasonably given the danger-
ousness of the crime, the brief time between when the shots
were fired and when the SUV was observed leaving the com-
plex, the minimal intrusion on the SUV’s occupants, the need
for police safety upon entering the complex, and the need to
stop potential fleeing suspects.
   Woldt urges us to find this case similar to State v. LaPlante,
26 A.3d 337 (Me. 2011). In that case, the Maine Supreme
Court considered the constitutionality of a state trooper’s stop
of a vehicle solely to seek information about another vehicle
the trooper observed speeding. As the trooper was turning
around to pursue, a motorcycle passed him. The trooper was
unable to locate the car but did reencounter the motorcycle.
The trooper activated his vehicle’s lights and stopped the
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                        STATE v. WOLDT
                      Cite as 23 Neb. App. 42

motorcycle on the chance that the driver had seen what direc-
tion the car had gone. There was no independent reason for the
trooper to stop the motorcycle. The motorcycle operator was
able to identify where the car had turned. While the trooper
was speaking to him, he noticed signs that the motorcycle
operator might have been drinking and began an investigation
that led to the operator’s arrest for DUI.
   On appeal, the Maine Supreme Court cited Illinois v.
Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843
(2004), and relevant state precedent and then applied the
balancing test from Brown v. Texas, 443 U.S. 47, 99 S. Ct.
2637, 61 L. Ed. 2d 357 (1979). The court noted other cases
in which the investigation of serious crimes had been deemed
sufficiently important to outweigh the liberty interests of
stopped motorists but concluded that the investigation of
a noncriminal speeding offense was not a matter of grave
public concern. With respect to the second factor of the bal-
ancing test, the court discussed precedent, including Lidster,
where courts have recognized that motorist stops may sig-
nificantly advance the investigation of serious crimes when
the stops take place in the vicinity of the crime and shortly
after its occurrence. The Maine court reasoned that unlike
witnesses to a hit-and-run accident or a robbery, motorists
were unlikely to take much notice of speeding. The court
reasoned further that the likelihood of motorists being able to
assist law enforcement with a speeding investigation was not
great. The court concluded that even though this particular
defendant had provided information, stopping motorists as
potential witnesses to speeding violations would not usu-
ally significantly advance such investigations. Finally, in
examining the liberty interest intrusion, the court noted that
cases upholding roadblock stops have found the degree of
intrusion lessened when the stops are brief, unlikely to cause
anxiety, and planned so as to minimize officer discretion. The
court found none of those elements present in the stop of the
motorcycle. The court found that the unplanned stop resulted
solely from the officer’s discretion and was more likely to
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

cause alarm because the motorcycle operator had no basis to
know the reason for or the likely length of the stop. Because
there were no formal restrictions on the trooper’s discretion
and the circumstances of the stop had significant potential to
cause alarm and anxiety, the court found a significant inter-
ference with the operator’s liberty interest. See, also, State v.
Whitney, 54 A.3d 1284 (Me. 2012) (random stop of motor-
ist to seek information about single vehicle accident ruled
invalid where officer was investigating crime of failure to
report accident).
   We now turn our attention to application of the balancing
test from Brown v. Texas, supra, to the facts of the present
case. The State argues that the stop of Woldt was reasonable
because he was a potential witness to several possible crimes
in this case, including criminal mischief, reckless driving,
and DUI. We disagree and conclude that the matters under
investigation under the circumstances of this case were not
of grave public concern. Davie was investigating the report
of a specific incident that had left traffic cones scattered
along both sides of the highway, initially creating a potential
hazard for other drivers. He was dispatched to investigate the
involvement of a white pickup in the incident and was in the
process of picking up the traffic cones when he heard squeal-
ing tires in the vicinity. Davie finished picking up the traffic
cones, removing the hazard, before locating a white pickup
nearby and making contact with its driver. Because Davie
observed Woldt closely following Biggerstaff before the stop
and because Woldt also stopped and waited with his pickup’s
window down while Davie made contact with Biggerstaff, it
was reasonable for Davie to believe that Woldt was a poten-
tial witness to any crimes by Biggerstaff and might have
information for Davie that would advance his investigation of
those crimes. However, Davie recognized Woldt, knew where
he worked, and could have contacted Woldt at a later date if
necessary. This was not a situation where Davie was inves-
tigating an ongoing threat to public safety committed by an
unknown individual. Nor was it a situation where Davie was
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                         STATE v. WOLDT
                       Cite as 23 Neb. App. 42

faced with an unknown and mobile potential witness, whose
help he needed to end an ongoing threat. By the time Davie
stopped Woldt, he had already apprehended and detained
Biggerstaff. While Davie did not know at that point whether
Biggerstaff was the person responsible for knocking down the
traffic cones, the degree of any public concern had certainly
lessened by the time that he stopped Woldt. Further, while
questioning Woldt may have advanced the investigation of
any crimes committed by Biggerstaff, the evidence does not
show that stopping and questioning Woldt at that time would
have advanced the investigation to a greater degree than con-
tacting him the following day at his workplace would have.
Finally, although the degree of intrusion on Woldt’s liberty
interest was not great, under the circumstances, we cannot say
that it was outweighed by the degree of public concern and
the extent to which questioning Woldt at that time advanced
any investigation of Biggerstaff. Accordingly, the district
court erred in affirming the county court’s overruling of
Woldt’s motion to suppress on that basis.
   [10] We note the State also argues that the stop was rea-
sonable because there were objective bases for the stop,
making Davie’s subjective motivation for the stop irrelevant.
Specifically, the State argues that Davie could have stopped
Woldt because he was following Biggerstaff too closely and
because he parked his pickup so that it extended into the
intersection. See State v. Sanders, 289 Neb. 335, 855 N.W.2d
350 (2014) (traffic violation, no matter how minor, creates
probable cause for officer to stop driver; if officer has prob-
able cause to stop violator, stop is objectively reasonable
and ulterior motivation is irrelevant). Davie testified that had
Woldt not stopped initially, he would not have stopped him
because he had no reason to do so. Upon redirect examina-
tion, Davie agreed that he probably could have cited Woldt
for following Biggerstaff too closely. Neither the county court
nor the district court addressed the issue of whether the stop
of Woldt was reasonable on this basis. Accordingly, we do not
address the issue further. An appellate court will not consider
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                        STATE v. WOLDT
                      Cite as 23 Neb. App. 42

an issue on appeal that was not presented to or passed upon
by the trial court. State v. Huston, 285 Neb. 11, 824 N.W.2d
724 (2013).
   [11] Although we have concluded that Woldt’s motion to
suppress should have been sustained, this determination does
not preclude a new trial under the concepts of double jeop-
ardy. The Double Jeopardy Clause does not forbid a retrial so
long as the sum of all the evidence admitted by a trial court,
whether erroneously or not, would have been sufficient to
sustain a guilty verdict. See State v. Borst, 281 Neb. 217, 795
N.W.2d 262 (2011).
                        CONCLUSION
   The district court erred in affirming the county court’s
overruling of Woldt’s motion to suppress. Accordingly, we
remand to the district court with directions to reverse Woldt’s
conviction and to remand the cause to the county court with
directions to sustain the motion to suppress and for further
proceedings consistent with this opinion.
                    R eversed and remanded with directions.
