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09/14/2018 08:09 AM CDT




                                                          - 88 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                   STATE v. NIELSEN
                                                   Cite as 301 Neb. 88




                                        State of Nebraska, appellee, v.
                                        M atthew W. Nielsen, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 14, 2018.   No. S-17-1033.

                1.	 Appeal and Error. Where no timely statement of errors is filed in an
                    appeal from a county court to a district court, appellate review is limited
                    to plain error.
                2.	 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 the Fourth Amendment
                    protection is a question of law that an appellate court reviews indepen-
                    dently of the trial court’s determination.
                3.	 Constitutional Law: Courts: Search and Seizure: Police Officers
                    and Sheriffs: Evidence. A court may decline to apply the exclusion-
                    ary rule when evidence is obtained pursuant to an officer’s objective
                    and reasonable reliance on a law that is not clearly unconstitutional at
                    the time.
                4.	 Appeal and Error. An appellate court does not consider errors which
                    are argued but not assigned.
                5.	 Search and Seizure: Proof. The State has the burden of showing that
                    the good faith exception applies.

                  Appeal from the District Court for Lancaster County, A ndrew
               R. Jacobsen, Judge, on appeal thereto from the County Court
               for Lancaster County, Timothy C. Phillips, Judge. Judgment of
               District Court affirmed.

                    John S. Berry, of Berry Law Firm, for appellant.
                                      - 89 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                STATE v. NIELSEN
                                Cite as 301 Neb. 88

   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
      Cassel, J.
                        INTRODUCTION
   Matthew W. Nielsen was convicted for driving under the
influence, after having submitted to a pre-Birchfield blood
draw.1 Based upon the exclusionary rule’s good faith excep-
tion, the county court denied Nielsen’s motion to suppress.
On appeal, the district court affirmed. On appeal to this court,
Nielsen contends that the exception does not apply and that
the State failed to raise the issue in the county court. Because
our holding in State v. Hoerle 2 controls and because the State
sufficiently raised the issue, the county court correctly denied
the motion and the district court properly affirmed. Therefore,
we also affirm.
                       BACKGROUND
                           A rrest
   On December 17, 2015, a police officer conducted a traffic
stop and arrested Nielsen under suspicion of drunk driving.
Ultimately, the arresting officer took Nielsen to a hospital.
There, he read the “Post Arrest Chemical Test Advisement
Form” to Nielsen. Nielsen signed the form and agreed to a
blood draw.
                     Motion to Suppress
  Based upon the results of the blood test, the State charged
Nielsen in the county court with driving under the influence.
Nielsen moved to suppress evidence obtained from the traffic

 1	
      See Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed.
      2d 560 (2016).
 2	
      State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).
                                      - 90 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. NIELSEN
                               Cite as 301 Neb. 88

stop and warrantless blood draw. There were other charges not
pertinent to this appeal.
   On his motion to suppress, Nielsen argued that the U.S.
Supreme Court decision in Birchfield v. North Dakota 3 should
retroactively control, because the Court determined that war-
rantless blood tests are an unconstitutional search under the
Fourth Amendment. According to the county court’s order
disposing of the motion, the State responded that Birchfield
should not apply retroactively based upon the decision in Davis
v. United States.4
   The county court determined that while the blood draw was
not voluntarily given, retroactive application of Birchfield was
inappropriate, because the officer “acted on a good faith-belief
that his conduct in obtaining the blood [draw] was lawful.”
Accordingly, the court denied the motion.
                R emaining Procedural History
   The county court bifurcated Nielsen’s trial. The driving
under the influence charge was tried to a jury and the remain-
ing charges to the bench. The jury found Nielsen guilty, and the
court imposed a sentence.
   Nielsen timely appealed to the district court. But he failed
to submit a statement of errors, and that court reviewed only
for plain error. It determined that the jury had sufficient
evidence to convict and that the county court did not err in
denying the motion to suppress. It affirmed the county court’s
judgment.
                ASSIGNMENTS OF ERROR
   Nielsen assigns that (1) the district court erred in find-
ing the good faith exception to the exclusionary rule applied
and (2) the State failed to preserve the good faith exception
for review.

 3	
      Birchfield, supra note 1.
 4	
      Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285
      (2011).
                                     - 91 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. NIELSEN
                               Cite as 301 Neb. 88

                    STANDARD OF REVIEW
   [1] Where no timely statement of errors is filed in an appeal
from a county court to a district court, appellate review is lim-
ited to plain error.5
   [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.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger
or violate the Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.6

                            ANALYSIS
                Good Faith Exception A pplication
                           to Birchfield
   [3] Nielsen argues that the good faith exception should not
be applied to pre-Birchfield cases, because consent was not
voluntarily given. We settled this issue in Hoerle.7 A court
may decline to apply the exclusionary rule when evidence is
obtained pursuant to an officer’s objective and reasonable reli-
ance on a law that is not clearly unconstitutional at the time.8
We reasoned, “Because the officer here acted in objectively
reasonable reliance on a statute that had not been found uncon-
stitutional at the time, excluding the results of [the defendant’s]
blood test would not serve the purpose of the exclusionary
rule.” 9 We concluded that “the good faith exception applies to
warrantless pre-Birchfield blood draws.”10

 5	
      State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).
 6	
      State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018).
 7	
      Hoerle, supra note 2.
 8	
      Id.
 9	
      Id. at 851, 901 N.W.2d at 334.
10	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. NIELSEN
                               Cite as 301 Neb. 88

  The same conclusion applies here. Nielsen was arrested on
December 17, 2015, and Birchfield was decided on June 23,
2016. The county court applied the good faith exception to
Nielsen’s pre-Birchfield blood draw. The district court found
no plain error. Neither do we.
                Asserting Good Faith Exception
   Nielsen argues that in the county court, the State failed
to assert the good faith exception. Thus, he contends, this
court should not consider whether the exception applies. The
State responds that it did raise good faith in the county court.
Moreover, the State argues, Nielsen cited no authority preclud-
ing the State from asserting the exception on appeal.
   But, as we have already implicitly recognized, the State did
raise the exception. The county court, in denying the motion,
stated that “[i]n support of it[s] position [the State] cites Davis
v. United States . . . .” The Davis Court held that “searches
conducted in objectively reasonable reliance on binding appel-
late precedent are not subject to the exclusionary rule.”11 In
doing so, the Davis Court expressly relied on the United States
v. Leon12 good faith exception rationale. Because the State
cited to Davis, it sufficiently raised the issue.
   [4] Nielsen argues that at the suppression hearing, the arrest-
ing officer’s testimony on this point was on redirect exami-
nation that exceeded the scope of cross-examination. Thus,
he argues, it cannot be used to show that the officer relied
on the implied consent statute when he conducted the blood
draw. But Nielsen did not object to the testimony. Nor did he
raise the matter in the district court—he filed no statement of
errors. And even in this court, his brief assigned no evidentiary
error. An appellate court does not consider errors which are
argued but not assigned.13 For a multiplicity of reasons, we do

11	
      Davis, supra note 4, 564 U.S. at 232.
12	
      United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
      (1984).
13	
      State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
                                       - 93 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                                 STATE v. NIELSEN
                                 Cite as 301 Neb. 88

not address Nielsen’s argument regarding allegedly improper
redirect examination.
   [5] Although we do not reach the State’s argument that
raising good faith for the first time on appeal is sufficient,
Nielsen’s contrary premise seems unconvincing. Our decision
in State v. Tompkins14 declined to answer the precise question.
We recognize that the State has the burden of showing that the
good faith exception applies.15 In Tompkins, we stressed that
an appellate court on its own motion cannot consider the good
faith exception. In brief and at oral argument, except perhaps
for a fleeting reference, the State did not challenge the hold-
ing of Tompkins. But we also said that “at the appellate level,
the State has ample opportunity to raise the Leon good faith
exception.”16 This would suggest that in order for an appel-
late court to consider the good faith exception, the State can
raise it either at the trial court or on appeal. Here, the State
presented the county court with case law expressly relying on
a good faith exception. The citation directly spoke to the issue
of good faith. Even if Nielsen’s premise was correct, no more
was required. Once again, we find no plain error.
                         CONCLUSION
   We conclude that the district court did not err in performing
its review for plain error. There was no plain error in applying
the good faith exception to warrantless pre-Birchfield blood
draws or in determining that the State raised the good faith
exception. We affirm the decision of the district court.
                                                      A ffirmed.

14	
      State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 (2006).
15	
      See id. See, also, U.S. v. Diehl, 276 F.3d 32 (1st Cir. 2002); State v.
      Havatone, 241 Ariz. 506, 389 P.3d 1251 (2017); People v. Willis, 28 Cal. 4th
      22, 46 P.3d 898, 120 Cal. Rptr. 2d 105 (2002); People v. Gutierrez, 222 P.3d
      925 (Colo. 2009).
16	
      Tompkins, supra note 14, 272 Neb. at 552, 723 N.W.2d at 349.
