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11/03/2017 09:14 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                   STATE v. HOERLE
                                                   Cite as 297 Neb. 840




                                        State of Nebraska, appellee, v.
                                          Jared S. Hoerle, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 22, 2017.   No. S-16-1003.

                1.	 Criminal Law: Motions for New Trial: Appeal and Error. In a
                     criminal case, a motion for new trial is addressed to the discretion of the
                     trial court, and unless an abuse of discretion is shown, the trial court’s
                     determination will not be disturbed.
                2.	 Search and Seizure. Application of the good faith exception to the
                     exclusionary rule is a question of law.
                3.	 Judgments: Appeal and Error. On a question of law, an appellate court
                     reaches a conclusion independent of the court below.
                4.	 Drunk Driving: Blood, Breath, and Urine Tests. A court must con-
                     sider the totality of the circumstances to determine whether a driver’s
                     consent to a blood test was freely and voluntarily given.
                5.	 Constitutional Law: Search and Seizure: Evidence. The Fourth
                     Amendment does not expressly preclude the use of evidence obtained
                     in violation of its commands.
                6.	 ____: ____: ____. The exclusionary rule operates as a judicially cre-
                     ated remedy designed to safeguard Fourth Amendment rights generally
                     through its deterrent effect, rather than a personal constitutional right of
                     the party aggrieved.
                 7.	 ____: ____: ____. A Fourth Amendment violation does not necessarily
                     mean that the exclusionary rule applies.
                8.	 Courts: Search and Seizure. Because the exclusionary rule should not
                     be applied to objectively reasonable law enforcement activity, the U.S.
                     Supreme Court created a good faith exception to the rule.
                9.	 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.
                                      - 841 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                               STATE v. HOERLE
                               Cite as 297 Neb. 840

  Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Affirmed.
      Mark E. Rappl for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
      Cassel, J.
                       INTRODUCTION
   One day after Jared S. Hoerle’s conviction for driving under
the influence (DUI), the U.S. Supreme Court held that a blood
test may not be administered without a warrant as a search
incident to an arrest for DUI.1 Hoerle moved for a new trial,
arguing that it was error to admit the result of a warrantless
test of his blood. The district court overruled the motion, and
Hoerle appeals. Because we determine that the good faith
exception to the exclusionary rule applies, we affirm the
court’s denial of a new trial.
                        BACKGROUND
   A motorist called the 911 emergency dispatch service after
witnessing Hoerle wreck his motorcycle. An officer respond-
ing to the scene observed clues that Hoerle may be impaired
by alcohol, and Hoerle admitted consuming alcoholic bever-
ages. Based on the result of a preliminary breath test, the offi-
cer determined that he needed Hoerle to submit to a chemical
test. A phlebotomist at a hospital obtained blood from Hoerle
at the officer’s request.
   The State charged Hoerle with “DUI- .15+ (2 prior con-
victions).” At trial, the parties stipulated that the blood test

 1	
      See Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed.
      2d 560 (2016).
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                 Nebraska Supreme Court A dvance Sheets
                         297 Nebraska R eports
                                 STATE v. HOERLE
                                 Cite as 297 Neb. 840

showed a blood alcohol concentration of .195 gram of alcohol
per 100 milliliters of blood. A jury returned a verdict finding
Hoerle guilty of DUI and found that the State proved Hoerle
had a concentration of .150 of 1 gram or more by weight of
alcohol per 100 milliliters of blood. The district court pro-
ceeded with an enhancement hearing and found Hoerle guilty
of DUI over .15 with two prior convictions.
   The following day, the U.S. Supreme Court released its deci-
sion in Birchfield v. North Dakota.2 In that case, the Court con-
sidered “whether motorists lawfully arrested for drunk driving
may be convicted of a crime or otherwise penalized for refus-
ing to take a warrantless test measuring the alcohol in their
bloodstream.”3 The Court held that the Fourth Amendment
permits a warrantless breath test as a search incident to a law-
ful arrest for drunk driving, but does not allow a warrantless
blood test as a search incident to arrest. The Court also touched
on whether a blood test is permissible based on a driver’s
statutory implied consent and stated that “motorists cannot be
deemed to have consented to submit to a blood test on pain of
committing a criminal offense.”4
   Hoerle timely moved for a new trial. He detailed that the
officer (1) acquired his blood sample without a warrant, (2)
stated Hoerle was required to submit to a chemical blood test,
and (3) told Hoerle refusal to submit to such test was a sepa-
rate crime for which Hoerle may be charged. Hoerle claimed
that in light of the new rule of constitutional law announced
in Birchfield, the introduction of evidence regarding his blood
alcohol constituted an error of law and the guilty verdict was
not sustained by sufficient admissible evidence.
   The district court held a hearing on the motion for new trial
at which the arresting officer testified. The officer testified

 2	
      Id.
 3	
      Id., 136 S. Ct. at 2172.
 4	
      Id., 136 S. Ct. at 2186.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                              STATE v. HOERLE
                              Cite as 297 Neb. 840

that he was denied permission to use the breath-testing facil-
ity at the jail due to concerns as to whether Hoerle was “fit
for confinement” as a result of the accident. The officer then
transported Hoerle to a hospital so that Hoerle’s medical
condition could be checked. Because the officer was already
at the hospital and in order to preserve as much evidence as
possible, he decided “to get everything done at the hospital,
one shot.” The officer read Hoerle the postarrest chemical
test advisement form which advised that “refusal to submit to
[the chemical test] is a separate crime for which you may be
charged.” The officer testified that Hoerle cooperated with his
request for a blood sample and did not resist in any way. The
officer did not attempt to obtain a warrant for the blood draw,
because his knowledge at that time was that a warrant was not
needed. The court overruled the motion.
   After the district court imposed a sentence, Hoerle filed this
appeal. We granted the State’s petition to bypass review by the
Nebraska Court of Appeals.

                ASSIGNMENT OF ERROR
  Hoerle assigns that the district court abused its discretion by
denying his motion for new trial.

                  STANDARD OF REVIEW
   [1-3] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed.5 Application of the good faith exception to the
exclusionary rule is a question of law.6 On a question of law,
an appellate court reaches a conclusion independent of the
court below.7

 5	
      State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
 6	
      State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).
 7	
      State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. HOERLE
                                Cite as 297 Neb. 840

                           ANALYSIS
                   Birchfield v. North Dakota
   We begin with a brief review of Birchfield. The opinion
addressed the consolidated cases of three individuals: one who
refused a blood test, another who refused a breath test, and a
third who submitted to a blood test after being told that the law
required submission. Because Hoerle similarly submitted to a
blood test after being read the postarrest chemical test advise-
ment, we focus on the third individual’s case.
   Steven Michael Beylund agreed to have his blood drawn
after he was informed that under North Dakota’s implied
consent advisory, refusing the blood test would itself be a
crime punishable in the same manner as DUI and may result
in a revocation of driving privileges for a minimum of 180
days and up to 3 years. Beylund’s driver’s license was there-
after suspended for 2 years after an administrative hearing,
and he appealed from that decision. Although Beylund’s case
concerned an administrative license proceeding rather than a
criminal proceeding, the Birchfield Court stated that “if such
warrantless searches are constitutional, there is no obstacle
under federal law to the admission of the results that they
yield in either a criminal prosecution or a civil or administra-
tive proceeding.”8
   The Birchfield Court then turned to the issue of consent. The
Court stated that “[i]t is well established that a search is rea-
sonable when the subject consents . . . and that sometimes con-
sent to a search need not be express but may be fairly inferred
from context . . . .”9 But Beylund argued that his consent was
coerced by the officer’s warning that refusing the blood test
would itself be a crime. The Court distinguished implied-
consent laws that impose civil penalties from those imposing
criminal penalties:

 8	
      Birchfield v. North Dakota, supra note 1, 136 S. Ct. at 2173.
 9	
      Id., 136 S. Ct. at 2185.
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                 Nebraska Supreme Court A dvance Sheets
                         297 Nebraska R eports
                                 STATE v. HOERLE
                                 Cite as 297 Neb. 840

      Our prior opinions have referred approvingly to the gen-
      eral concept of implied-consent laws that impose civil
      penalties and evidentiary consequences on motorists who
      refuse to comply. . . . [N]othing we say here should be
      read to cast doubt on [those laws].
         It is another matter, however, for a State not only to
      insist upon an intrusive blood test, but also to impose
      criminal penalties on the refusal to submit to such a
      test. There must be a limit to the consequences to which
      motorists may be deemed to have consented by virtue of
      a decision to drive on public roads.10
The Court stated that in applying the reasonableness standard,
“motorists cannot be deemed to have consented to submit to a
blood test on pain of committing a criminal offense.”11
   But the Court ultimately did not resolve the consent issue
as a matter of law. Instead, the Birchfield Court remanded
Beylund’s cause to the state court to reevaluate Beylund’s
consent given the officer’s partial inaccurate advisory that the
State could permissibly compel both blood and breath tests.
In doing so, the Court noted that “voluntariness of consent
to a search must be ‘determined from the totality of all the
circumstances.’”12
   Birchfield called into question the voluntariness of a motor-
ist’s consent to a blood test when the motorist is advised
that refusal will result in a criminal charge. But it is unclear
whether Birchfield created a categorical rule that consent given
after threat of criminal prosecution is per se involuntary. The
Court’s remand suggests that it did not.
   Following Birchfield, state appellate courts have taken dif-
ferent paths. One court determined that a warrantless blood
draw could not be upheld based on consent after the driver
was informed that failure to submit constituted a separate

10	
      Id.
11	
      Id., 136 S. Ct. at 2186.
12	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                               STATE v. HOERLE
                               Cite as 297 Neb. 840

crime.13 Another court followed the lead of Birchfield and
remanded the cause to the trial court for a reevaluation of con-
sent.14 Other courts have considered the totality of the circum-
stances to determine whether the driver’s consent was freely
and voluntarily given.15
   [4] We conclude that Birchfield does not make categori-
cally invalid a warrantless blood draw based on actual consent
when a driver is incorrectly advised that the driver is required
to submit to such a test or will face criminal penalties for a
refusal. Rather, a court must consider the totality of the cir-
cumstances to determine whether a driver’s consent to a blood
test was freely and voluntarily given.
   In the case before us, the timing dictated an unusual proce-
dure. Because the Birchfield decision came after completion
of the trial, there was no opportunity for a motion to suppress.
Instead, the consent issue was presented through a motion for
new trial. The district court made no express factual findings.
No one asserts error to the lack of such findings.
   Although we could discern implicit factual findings regard-
ing consent, before doing so another course deserves our atten-
tion. If the good faith exception to the exclusionary rule applies
to pre-Birchfield blood draws, we can resolve the appeal on
that basis.

                   Exclusionary Rule and
                    Good Faith Exception
   [5-7] The Fourth Amendment does not expressly preclude
the use of evidence obtained in violation of its commands.16

13	
      See State v. Schmidt, 53 Kan. App. 2d 225, 385 P.3d 936 (2016).
14	
      See Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016).
15	
      See, People v. Mason, 8 Cal. App. 5th Supp. 11, 214 Cal. Rptr. 3d 685
      (2016); State v. Charlson, 160 Idaho 610, 377 P.3d 1073 (2016); State v.
      Blackman, ___ Wis. 2d ___, 898 N.W.2d 774 (2017).
16	
      See, United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d
      677 (1984); State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
                                       - 847 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. HOERLE
                                Cite as 297 Neb. 840

The exclusionary rule “operates as ‘a judicially created rem-
edy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional
right of the party aggrieved.’”17 Thus, a Fourth Amendment
violation does not necessarily mean that the exclusionary rule
applies.18
   [8] Because the exclusionary rule should not be applied
to objectively reasonable law enforcement activity, the U.S.
Supreme Court created a good faith exception to the rule.19 We
have followed suit and applied the good faith exception in a
number of cases.20
   Birchfield did not directly address whether the good faith
exception to the exclusionary rule should apply in a situation
where consent to a blood test is given following an incorrect
advisement that refusal could be criminally punished. But the
State draws guidance from the following footnote:
         If the court on remand finds that Beylund did not
      voluntarily consent, it will have to address whether the
      evidence obtained in the search must be suppressed when
      the search was carried out pursuant to a state statute, see
      Heien v. North Carolina, . . . 135 S.Ct. 530, 537-539,
      190 L.Ed.2d 475 (2014), and the evidence is offered in
      an administrative rather than criminal proceeding, see
      Pennsylvania Bd. of Probation and Parole v. Scott, 524
      U.S. 357, 363-364, 118 S.Ct. 2014, 141 L.Ed.2d 344
      (1998). And as Beylund notes, remedies may be available
      to him under state law.21

17	
      United States v. Leon, supra note 16, 468 U.S. at 906.
18	
      See State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).
19	
      See United States v. Leon, supra note 16.
20	
      See, e.g., State v. Tyler, supra note 18; State v. Henderson, supra note 16;
      State v. Hill, supra note 6; State v. Bromm, 285 Neb. 193, 826 N.W.2d 270
      (2013); State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).
21	
      Birchfield v. North Dakota, supra note 1, 136 S. Ct. at 2186 n.9.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                               STATE v. HOERLE
                               Cite as 297 Neb. 840

   The State’s argument focuses on the first case cited in the
footnote. In Heien v. North Carolina,22 the Court held that an
officer’s mistake of the law was reasonable and that thus, there
was reasonable suspicion justifying the stop under the Fourth
Amendment. Because there was no Fourth Amendment viola-
tion, the Heien Court did not need to consider the appropri-
ate remedy.
   The other case cited in the footnote involved application of
the exclusionary rule. In Pennsylvania Bd. of Probation and
Parole v. Scott,23 the Court recognized that it had “repeatedly
declined to extend the exclusionary rule to proceedings other
than criminal trials.” Ultimately, the Court held that “parole
boards are not required by federal law to exclude evidence
obtained in violation of the Fourth Amendment.”24
   Although neither of the majority opinions mentioned the
good faith exception, the Birchfield Court’s juxtaposition of the
two cases is significant. One case held that a stop was lawful
because the officer’s mistake as to the law was reasonable. The
other case, in discussing whether the exclusionary rule should
apply in a noncriminal proceeding, emphasized that use of the
rule is unwarranted where its deterrence benefits would not
outweigh its social costs. Together, these cases do not fore-
close application of the good faith exception where the Fourth
Amendment violation was due to an officer’s reasonable mis-
take of law.
   [9] A court may decline to apply the exclusionary rule
when evidence is obtained pursuant to an officer’s objective
and reasonable reliance on a law that is not clearly uncon-
stitutional at the time. The U.S. Supreme Court declared

22	
      Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475
      (2014).
23	
      Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118
      S. Ct. 2014, 141 L. Ed. 2d 344 (1998).
24	
      Id., 524 U.S. at 369.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                              STATE v. HOERLE
                              Cite as 297 Neb. 840

that the exclusionary rule did not apply to evidence obtained
by police who acted in objectively reasonable reliance on
a statute authorizing warrantless administrative searches,
but which was subsequently found to violate the Fourth
Amendment.25
   The Court explained the underlying rationale:
      The application of the exclusionary rule to suppress
      evidence obtained by an officer acting in objectively
      reasonable reliance on a statute would have as little
      deterrent effect on the officer’s actions as would the
      exclusion of evidence when an officer acts in objectively
      reasonable reliance on a warrant. Unless a statute is
      clearly unconstitutional, an officer cannot be expected
      to question the judgment of the legislature that passed
      the law. If the statute is subsequently declared uncon-
      stitutional, excluding evidence obtained pursuant to it
      prior to such a judicial declaration will not deter further
      Fourth Amendment violations by an officer who has
      simply fulfilled his responsibility to enforce the statute
      as written.26
   Applying this rationale, we discern no deterrent value
in suppressing the results of Hoerle’s blood test. The offi-
cer advised Hoerle that refusal to submit to a chemical
test was a separate crime for which he may be charged, an
advisement required by the statute.27 And the statute was
not clearly unconstitutional at the time of Hoerle’s arrest in
April 2015.
   Following Birchfield, state courts are not uniform as to
whether the good faith exception to the exclusionary rule
should apply. At least two states have adopted the good faith

25	
      See Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364
      (1987).
26	
      Id., 480 U.S. at 349-50.
27	
      See Neb. Rev. Stat. § 60-6,197(5) (Cum. Supp. 2016).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                               STATE v. HOERLE
                               Cite as 297 Neb. 840

exception.28 And at least two states have determined that the
exception did not apply.29
   We are not persuaded by the reasoning of the courts declin-
ing to apply the exception. Each advanced a different rationale,
which we discuss separately.
   The Arizona Supreme Court reasoned that an officer should
have known that a departmental practice of directing blood
draws from DUI suspects, without making a case-specific
determination whether a warrant could be timely secured,
was either impermissible or at least constitutionally suspect.30
But it seems to us that law enforcement officers are gener-
ally tasked with enforcing the law as written, and it would be
unwise to expect them to make their own judgment calls as to
the constitutionality of such statutes. The U.S. Supreme Court
cogently stated:
         Police are charged to enforce laws until and unless
      they are declared unconstitutional. The enactment of a
      law forecloses speculation by enforcement officers con-
      cerning its constitutionality—with the possible exception
      of a law so grossly and flagrantly unconstitutional that
      any person of reasonable prudence would be bound to
      see its flaws. Society would be ill-served if its police
      officers took it upon themselves to determine which
      laws are and which are not constitutionally entitled to
      enforcement.31
   The Wisconsin Supreme Court feared that if it did not sup-
press the evidence, officers would continue to read the incor-
rect advisory form to others in order to provide the basis for

28	
      See, State v. Schmidt, supra note 13; State v. Reynolds, 504 S.W.3d 283
      (Tenn. 2016).
29	
      See, State v. Havatone, 241 Ariz. 506, 389 P.3d 1251 (2017); State v.
      Blackman, supra note 15.
30	
      See State v. Havatone, supra note 29.
31	
      Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61 L. Ed. 2d 343
      (1979).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. HOERLE
                                Cite as 297 Neb. 840

voluntary consent.32 But as the dissent pointed out, an offi-
cer who did so after release of the majority opinion would
be unable to rely on the good faith exception.33 To us, the
Wisconsin dissent seems more persuasive.
   Because the officer here acted in objectively reasonable reli-
ance on a statute that had not been found unconstitutional at
the time, excluding the results of Hoerle’s blood test would not
serve the purpose of the exclusionary rule. We conclude that
the good faith exception applies to warrantless pre-Birchfield
blood draws.
                       CONCLUSION
   Because we conclude that the good faith exception applies to
warrantless blood draws conducted prior to the U.S. Supreme
Court’s decision in Birchfield, we find no abuse of discre-
tion by the district court in overruling Hoerle’s motion for
new trial.
                                                   A ffirmed.

32	
      See State v. Blackman, supra note 15.
33	
      See id. (Roggensack, C.J., dissenting).
