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11/22/2017 08:11 PM CST




                                                         - 709 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                   STATE v. RIVERA
                                                  Cite as 297 Neb. 709




                                        State of Nebraska, appellee, v.
                                        Jonathan J. R ivera, appellant.
                                                    ___ N.W.2d ___

                                        Filed September 15, 2017.   No. S-16-255.

                1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
                     Appeal and Error. In reviewing a trial court’s ruling on a motion to
                     suppress based on a claimed violation of the Fourth Amendment, an
                     appellate court applies a two-part standard of review. Regarding histori-
                     cal facts, an appellate court reviews the trial court’s findings for clear
                     error, but whether those facts trigger or violate Fourth Amendment pro-
                     tection is a question of law that an appellate court reviews independently
                     of the trial court’s determination.
                2.	 Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
                     When a motion to suppress is denied pretrial and again during trial on
                     renewed objection, an appellate court considers all the evidence, both
                     from trial and from the hearings on the motion to suppress.
                3.	 Constitutional Law: Search and Seizure. The Fourth Amendment to
                     the U.S. Constitution and article I, § 7, of the Nebraska Constitution
                     guarantee against unreasonable searches and seizures.
                4.	 ____: ____. For the protections of the Fourth Amendment to apply, a
                     seizure must have occurred.
                 5.	 ____: ____. 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.
                6.	 Police Officers and Sheriffs: Search and Seizure. A police officer may
                     make a seizure by a show of authority and without the use of physi-
                     cal force.
                7.	 Constitutional Law: Police Officers and Sheriffs: Search and
                     Seizure. There is no seizure without actual submission; otherwise, there
                     is at most an attempted seizure, so far as the Fourth Amendment is con-
                     cerned. Thus, a seizure requires either a police officer’s application of
                     physical force to a suspect or a suspect’s submission to an officer’s show
                     of authority.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. RIVERA
                               Cite as 297 Neb. 709

 8.	 Witnesses: Evidence: Appeal and Error. In reviewing a trial court’s
     factual findings for clear error, an appellate court does not pass on the
     credibility of witnesses or reweigh the evidence presented.
 9.	 Police Officers and Sheriffs: Search and Seizure: Intent. A law
     enforcement officer’s subjective intent is irrelevant for determining
     whether a seizure did in fact occur.
10.	 Police Officers and Sheriffs: Search and Seizure: Motor Vehicles.
     A seizure does not occur simply because a law enforcement officer
     approaches an individual who voluntarily stopped his or her vehicle.
11.	 Judgments: Appeal and Error. A correct result will not be set aside
     merely because the lower court applied the wrong reasoning in reaching
     that result.

   Petition for further review from the Court of Appeals,
Moore, Chief Judge, and R iedmann and Bishop, Judges, on
appeal thereto from the District Court for Lancaster County,
A ndrew R. Jacobsen, Judge, on appeal thereto from the County
Court for Lancaster County, Thomas W. Fox, Judge. Judgment
of Court of Appeals affirmed.
      Mark E. Rappl for appellant.
  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
      Cassel, J.
                       INTRODUCTION
   The county court overruled Jonathan J. Rivera’s motion
to suppress. In doing so, it applied the community caretak-
ing exception to the Fourth Amendment.1 On further review,
we conclude that the initial police-citizen encounter did not
amount to a seizure. Because the encounter began without a
seizure, it was not necessary to invoke the community caretak-
ing exception. We affirm the decision of the Nebraska Court of
Appeals, albeit on different grounds.

 1	
      See State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007).
                              - 711 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. RIVERA
                        Cite as 297 Neb. 709

                        BACKGROUND
                   Police-Citizen Encounter
   We first describe the scene of the encounter. At approxi-
mately 10:35 p.m. on May 24, 2014, two patrolling Nebraska
Game and Parks Commission conservation officers came
across two groups of people on opposite sides of a paved road.
According to all of the testimony, the scene was very dark at
the time. The road was within the Branched Oak Lake recre-
ation area and had no lane markings but had grassy areas to
each side.
   Before Rivera arrived, the officers parked their marked
patrol vehicle on the right side of the road and exited the
vehicle to investigate. When one of the officers approached
the groups, the other officer returned to the patrol vehicle to
call dispatch.
   While sitting inside the patrol vehicle, the officer noticed
another vehicle, driven by Rivera, approach and stop behind
the patrol vehicle. The vehicle then pulled off the road onto
the grassy shoulder to the right of the patrol vehicle and
advanced along the shoulder at a slow speed. According to
both officers at the scene, if the vehicle had attempted to pass
the patrol vehicle on the left, the vehicle would still have left
the paved portion of the road.
   Concerned because the vehicle was approaching the group
on the side of the road, the officer exited and walked around
the front of the patrol vehicle toward Rivera’s vehicle. The
officer was wearing a uniform and displaying a badge, and
he had a firearm on his person, though he did not draw or
display it. Rivera saw the officer and stopped his vehicle as
its front end was even with that of the patrol vehicle. At this
time, the group of people on the side of the road was 15 to 20
feet away.
   The officer approached and informed Rivera that he would
move the patrol vehicle if Rivera would wait a few min-
utes. During this interaction, the officer noticed that Rivera
had bloodshot, watery eyes and slurred speech. When asked
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                              STATE v. RIVERA
                             Cite as 297 Neb. 709

whether he had been drinking alcohol that evening, Rivera
replied that he had. The officer then detained Rivera for a
driving under the influence investigation which ultimately led
to Rivera’s arrest.

                      Motion to Suppress
   Before trial on his charge for driving under the influence,
Rivera filed a motion to suppress evidence obtained as a result
of the stop. The county court overruled the motion after find-
ing that the arresting officer was operating in a community
caretaking function when he made contact with Rivera. It later
overruled Rivera’s renewed motion to suppress at a bench trial
and found Rivera guilty of driving under the influence. The
county court revoked Rivera’s driver’s license for 18 months,
imposed a $1,000 fine, sentenced him to 30 days’ imprison-
ment and 24 months’ probation, and ordered that he perform
20 hours of community service and pay all associated costs
and fees.

                      A ppellate History
   Rivera appealed to the district court and alleged that the
county court erred in overruling his motion to suppress by
concluding the arresting officer had reasonable grounds to
detain him. The district court affirmed the judgment of the
county court after concluding that it did not err in determining
that the community caretaking exception applied to the police-
citizen encounter.
   On further appeal to the Court of Appeals, Rivera advanced
the same argument and assigned that the district court erred in
affirming the denial of his motion to suppress. In a split deci-
sion, the Court of Appeals affirmed the district court’s ruling.2
   We granted Rivera’s petition for further review to address a
perceived expansion of the community caretaking exception.

 2	
      State v. Rivera, No. A-16-255, 2017 WL 977345 (Neb. App. Mar. 14,
      2017) (selected for posting to court website).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. RIVERA
                               Cite as 297 Neb. 709

                 ASSIGNMENT OF ERROR
   Rivera assigns that the Court of Appeals erred by applying
the community caretaking exception to the Fourth Amendment
in affirming the county court’s order overruling his motion
to suppress.
                  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.3
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.4 When a motion to suppress is denied
pretrial and again during trial on renewed objection, an appel-
late court considers all the evidence, both from trial and from
the hearings on the motion to suppress.5
                          ANALYSIS
   Rivera asserts that the Court of Appeals erred by find-
ing the community caretaking exception applicable to the
police-citizen encounter in question. He argues in his peti-
tion for further review that in doing so, the Court of Appeals
“broadly expanded the community caretaking exception to
unprecedented levels in direct contradiction to [the Nebraska
Supreme] Court’s explicit mandate that the community care-
taking exception be narrowly and carefully applied in order to
prevent its abuse.”6
   [3,4] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against

 3	
      State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
 4	
      Id.
 5	
      Id.
 6	
      Citing State v. Bakewell, supra note 1.
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                               STATE v. RIVERA
                              Cite as 297 Neb. 709

unreasonable searches and seizures.7 But, for the protections
of the Fourth Amendment to apply, a seizure must have
occurred.8 Therefore, we must first review the factual find-
ings of the trial court for clear error and determine whether
a seizure within the meaning of the Fourth Amendment actu-
ally occurred.
   [5-7] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he
or she was not free to leave.9 A police officer may make a
seizure by a show of authority and without the use of physi-
cal force.10 However, there is no seizure without actual sub-
mission; otherwise, there is at most an attempted seizure, so
far as the Fourth Amendment is concerned.11 Thus, a seizure
requires either a police officer’s application of physical force
to a suspect or a suspect’s submission to an officer’s show
of authority.12
   It is apparent from the record that Rivera voluntarily stopped
after seeing the uniformed officer approach the front of his
vehicle. Regarding Rivera’s stop, the trial court found:
       To ensure the safety of the group of people near the
       front of the patrol pickup, [the officer] then got out of
       his patrol pickup, walked around the front of the patrol
       pickup to the passenger front side, and toward [Rivera’s]
       truck that was attempting to pass.
          [Rivera’s] truck, which was attempting to pass on the
       passenger side of the patrol pickup, then stopped. [The
       officer] did not step out in front of [Rivera’s] truck as it
       was attempting to pass.

 7	
      State v. Rogers, supra note 3.
 8	
      See State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
 9	
      State v. Rogers, supra note 3.
10	
      State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
11	
      Id.
12	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                               STATE v. RIVERA
                              Cite as 297 Neb. 709

         . . . At no time did [the officer] activate the emergency
      overhead lights or siren on the patrol pickup, nor did [the
      officer] honk the horn of the patrol pickup to get [Rivera]
      to stop his truck. [The officer] did not draw or display
      his gun. [Rivera’s] truck was not blocked in by the patrol
      pickup and was able to keep driving forward if it avoided
      the people in the area.
   [8] There was conflicting testimony as to whether the police
officer raised his hand to indicate Rivera should stop. But the
trial court did not make a specific finding as to whether the
officer made such a gesture. Instead, its detailed account of the
encounter suggests that the court implicitly found the officer
did not make any gesture to direct Rivera to stop. At oral argu-
ment, Rivera asserted that the sentence in the court’s analysis
stating the officer “was operating in a community caretaking
function when he made . . . contact with [Rivera] and caus[ed]
[Rivera] to stop his truck” was a specific finding that Rivera
was in fact stopped. To the contrary, we view that sentence
as a conclusion of law, not as a finding of historical fact. In
reviewing the county court’s findings, we do not pass on the
credibility of witnesses or reweigh the evidence presented.13
There was no clear error in the county court’s findings of his-
torical fact.
   [9,10] Though the officer admittedly intended to stop
Rivera’s vehicle, his subjective intent is irrelevant for deter-
mining whether a seizure did in fact occur.14 The officer did
not gesture at Rivera to stop or otherwise restrict his move-
ment by blocking his vehicle. Therefore, we cannot say that
a reasonable person would have believed that he or she was
not free to leave. And, Rivera voluntarily stopped his vehicle;
a seizure did not occur simply because the officer approached
him and told him he would move his patrol vehicle in a

13	
      See State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015).
14	
      See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. RIVERA
                               Cite as 297 Neb. 709

few minutes.15 The interaction between the officer and Rivera
began as a “first-tier” encounter.16
   Based on the officer’s observations of Rivera’s bloodshot,
watery eyes and slurred speech, the “first-tier” encounter
promptly escalated to “second-tier.”17 The circumstances then
clearly established reasonable suspicion that a crime was being
committed. Accordingly, the detention that followed was con-
stitutionally permitted.
   [11] Because there was no seizure at the commencement
of the encounter, there was no need to apply the community
caretaking exception. We reiterate that the exception is to be
“narrowly and carefully applied.”18 A correct result will not
be set aside merely because the lower court applied the wrong
reasoning in reaching that result.19 Although the county court
unnecessarily resorted to the community caretaking exception,
it correctly denied Rivera’s motion to suppress. Likewise, the
district court and Court of Appeals were correct in affirming
the decision of the trial court, despite having followed it down
the wrong path.
                       CONCLUSION
   Because no seizure occurred at the commencement of the
encounter, it was not necessary to resort to the community
caretaking exception. Although the lower courts began down
the wrong path, they reached the correct result. Accordingly,
we affirm the decision of the Court of Appeals.
                                                  A ffirmed.

15	
      See, e.g., State v. Hedgcock, supra note 10.
16	
      See State v. Rogers, supra note 3, 297 Neb. at 269, 899 N.W.2d at 631.
17	
      See id.
18	
      State v. Bakewell, supra note 1, 273 Neb. at 377, 730 N.W.2d at 338.
19	
      State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
