                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                         STATE V. HINZ


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


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                                 STEVEN M. HINZ, APPELLANT.


                          Filed December 13, 2016.     No. A-16-568.


        Appeal from the District Court for Lancaster County, JODI NELSON, Judge, on appeal
thereto from the County Court for Lancaster County, JAMES L. FOSTER, Judge. Judgment of
District Court affirmed.
       David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., for appellant.
       Jessica Kerkhofs, Assistant Lincoln City Attorney, for appellee.



       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       RIEDMANN, Judge.
                                      INTRODUCTION
       Steven M. Hinz was found guilty of one count of driving while under the influence. The
county court for Lancaster County sentenced him to 6 months’ probation and ordered him to pay
a $500 fine. Hinz appealed his conviction to the district court, where it was affirmed. Hinz now
appeals his conviction to this court. Following our review of the record, we affirm.
                                       BACKGROUND
       On June 6, 2015, Lincoln Police Department Officer Kenneth Morrow was on patrol on
northbound interstate 180 in Lancaster County, Nebraska. Shortly after 2 a.m., he was walking
back to his cruiser upon completing a traffic stop on the Superior Street off ramp when a white




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Dodge pickup caught his attention. The pickup was among a group of cars going north on 180 and
it caught Morrow’s attention because its lights were remarkably bright. Morrow testified later that
he could only see a single block of light and it looked like a train was coming towards him. He
said that the lights were so bright that he could not see anything else in that direction, such as the
vehicles behind or to the side of the pickup. The truck was approximately 300 yards away from
Morrow when he first saw it as it proceeded towards him on the Superior Street off ramp. As the
truck came closer, Morrow could see that the lights were actually separate from the vehicle’s
headlights. The headlights were turned on but apart from the headlights was what Morrow
described as an LED light bar that spanned the entire front of the vehicle’s grill. It was these lights,
rather than the headlights, that were extraordinarily bright.
        Immediately before passing Morrow’s cruiser on the off ramp, the driver turned off the
bright lights, leaving only his regular headlights. Morrow acknowledged that the entire time the
bright lights were on, he was outside of his vehicle and did not signal to the driver in any way to
turn his lights down.
        After the pickup passed, Morrow got back into his cruiser and began pursuit. He briefly
followed the vehicle before initiating a traffic stop at the intersection of First and Benton. Morrow
stated that while following the pickup he did not observe the driver commit any additional traffic
violations. He testified that he believed the bright lights were a dangerous hazard to other drivers
on the road and his sole reason for stopping the vehicle was the brightness of the lights.
        Morrow made contact with the driver, later identified as Hinz. Upon making contact,
Morrow noticed the odor of alcohol coming from inside the vehicle or on Hinz’s person and he
initiated a driving under the influence investigation. During the course of the investigation, Hinz
admitted that he had been drinking. He was subsequently placed under arrest for driving under the
influence of alcohol and cited for both that offense as well as failure to dim his lights pursuant to
Lincoln Municipal Code (L.M.C.) § 10.22.050. He was charged with driving under the influence
of alcohol in violation of L.M.C. § 10.16.030 and operating a motor vehicle with a headlamp that
projected a glaring or dazzling light in violation of L.M.C. § 10.22.050.
        Hinz filed a demurrer and a motion to quash in regard to the headlamp charge, as well as a
motion to suppress. He also filed a motion to declare L.M.C. § 10.22.050 unenforceable. Before
any hearings on these motions could take place, the State dismissed the headlamp charge, leaving
only the driving under the influence charge.
        Despite the dismissal of the headlamp charge, Hinz proceeded on his motion to declare
L.M.C. § 10.22.050 unenforceable because it was the basis for the stop. The county court overruled
Hinz’s motion to declare the ordinance unenforceable as well as his motion to suppress. After a
bench trial, the county court found Hinz guilty of driving under the influence.
        Hinz appealed his conviction to the district court, alleging that the county court erred in
overruling his motion to suppress, failing to declare the Lincoln ordinance unenforceable, finding
him guilty of driving under the influence, and overruling several evidentiary objections at trial.
The district court affirmed Hinz’s conviction. Hinz now appeals to this court.
                                    ASSIGNMENT OF ERROR
        Hinz’s sole assignment of error is that the county court and the district court erred in failing
to sustain his motion to suppress.


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                                    STANDARD OF REVIEW
       In reviewing a trial court’s order on a motion to suppress based on a claimed violation of
the Fourth Amendment, appellate courts apply a two-part standard of review. State v. Hill, 288
Neb. 767, 851 N.W.2d 670 (2014); State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
Regarding historical facts, appellate courts review the trial court’s findings for clear error. Id. But
whether those facts trigger or violate Fourth Amendment protections is a question of law that
appellate courts review independently of the trial court’s determination. Id.
                                            ANALYSIS
        Hinz argues that the district court erred in affirming the county court’s order overruling his
motion to suppress. He argues that his Fourth Amendment rights were violated because he was
stopped on the basis of driving with glaring or dazzling lights but Morrow did not first signal to
him that he should dim his lights as required by Neb. Rev. Stat. § 60-6,224 (Reissue 2010). We
disagree.
        The Fourth Amendment guarantees the right to be free from unreasonable search and
seizure. State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). This guarantee requires that an arrest
be based on probable cause and limits investigatory stops to those made upon an articulable
suspicion of criminal activity. Id. A traffic stop requires only that the investigating officer have
specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has
committed or is committing a crime. Id. To determine whether there is reasonable suspicion for an
officer to make an investigatory stop, the totality of the circumstances must be taken into account.
Id.
        Morrow stopped Hinz’s vehicle based upon a violation of L.M.C. § 10.22.050. It states in
pertinent part that:
        The headlamps of motor vehicles shall be so constructed, arranged, and adjusted that,
        except as provided in subsection (b) of this section, they shall at all times mentioned in
        Section 10.22.030, and under normal atmospheric conditions and on a level road, produce
        a driving light sufficient to render clearly discernible a person 200 feet ahead, but shall not
        project a glaring or dazzling light to persons in front of such headlamp.

Section 10.22.060 makes it unlawful for any person to drive on any of the streets or alleys in the
city any vehicle which does not comply with the requirements of section 10.22.050.
        Neb. Rev. Stat. § 60-6,224 requires that:
        Whenever any person operating a motor vehicle on any highway in this state meets another
        person operating a motor vehicle, proceeding in the opposite direction and equipped with
        headlights constructed and adjusted to project glaring or dazzling light to persons in front
        of such headlights, upon signal of either person, the other shall dim the headlights of his or
        her motor vehicle or tilt the beams of glaring or dazzling light projecting therefrom
        downward so as not to blind or confuse the vision of the operator in front of such headlights.

Failure to comply with §60-6,224 is a Class V misdemeanor.
        Hinz claims that Morrow’s stop of his vehicle violated the Fourth Amendment because it
was based on his driving with glaring or dazzling lights but Morrow did not first signal for him to


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dim his lights as required by § 60-6,224. Hinz contends that the Lincoln municipal ordinance that
Morrow relied upon in making the stop is in conflict with the state statute, thereby rendering the
ordinance void and unenforceable and the stop unlawful.
         The central flaw in Hinz’s argument is that Morrow made the stop based upon violation of
the municipal ordinance, not the state statute. And, as stated above, a traffic stop requires only that
the investigating officer have specific and articulable facts sufficient to give rise to a reasonable
suspicion that a person has committed or is committing a crime. State v. Bol, supra. Much of
Hinz’s argument is devoted to the application of § 60-6,224 to this case and the predicate facts
necessary for finding a violation of that section. However, we do not find this analysis applicable
since Hinz was never charged under § 60-6,224.
         Under Nebraska law, a traffic violation, no matter how minor, creates probable cause for
an officer to stop the driver of the vehicle. State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014).
In determining whether a vehicle stop was reasonable, the question is not whether the officer issued
a citation for a traffic violation or whether the State ultimately proved the violation; rather, a
vehicle stop is objectively reasonable when the officer has probable cause to believe that a traffic
violation has occurred. Id. In other words, the fact that an officer does not issue a citation for a
traffic violation, or that a charge is subsequently dismissed by the State or the court, does not in
and of itself render a vehicle stop unlawful.
         In this case, the county court found that L.M.C. § 10.22.050 “was in effect and was a valid
ordinance at that time, having not been found unconstitutional or overruled by a court. When
Officer Morrow saw those dazzling lights . . . he was relying on a valid ordinance in effect.” We
agree with the trial court that Morrow could reasonably rely upon the city ordinance in determining
whether a driver had committed a traffic violation. Upon observing Hinz’s vehicle, Morrow
concluded that its use of glaring or dazzling lights was in violation of the ordinance, giving rise to
sufficient reasonable suspicion to allow him to conduct a traffic stop. Morrow also testified that
he believed the lights created a hazard for other drivers due to their intensity. The fact that the
charge connected to Morrow’s original reason for the stop was eventually dismissed has no effect
on the validity of the stop itself.
         Additionally, Hinz claims that because L.M.C. § 10.22.050 is in conflict with the state
statute it is void and unenforceable. We need not address whether the municipal code section is
void and unenforceable because, the issue before us is whether Morrow had a reasonable suspicion
based on articulable facts which indicate that a crime has occurred, is occurring, or is about to
occur. We conclude that he did.
         Hinz makes several public policy arguments as to why the municipal ordinance should be
found void and the stop should be found unlawful. However, because we find that we need not
address whether L.M.C. § 10.22.050 is void and unenforceable, we likewise do not address these
arguments that depend upon the finding that the ordinance is unlawful.
         Furthermore, we disagree with Hinz’s assertion that because the State dismissed the
headlamp charge, it was conceding that the stop was unconstitutional. The State retains broad
discretion as to whom to prosecute and what charges to file. State v. Sanodval, 280 Neb. 309, 788
N.W.2d 172 (2010). This includes the choice not to charge the accused at all. Polikov v. Neth, 270
Neb. 29, 699 N.W.2d 802 (2005). While law enforcement officers typically initiate an arrest, they
are not required to be legal scholars. State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006). It is the


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prosecutor that is ultimately responsible for evaluating the evidence and determining which
charges, if any, he or she chooses to file, and such decision is based upon a variety of
considerations. See State v. Bartlett, 210 Neb. 886, 317 N.W.2d 102 (1982). Thus, we do not
interpret the State’s decision to dismiss the headlamp charge as a concession of anything.
        Hinz also claims that, if upheld, the reasoning used by the lower courts will make the state
statute and the Fourth Amendment meaningless. He argues that such a decision would render
§ 60-6,224 pointless and that to approve of the “I believe what I saw was dangerous” standard to
justify vehicle stops will lead to abuse by law enforcement officers, limited only by their
imaginations.
        However, we again note that § 60-6,224 was not the basis for the stop. The only issue at
bar is whether the arresting officer had reasonable suspicion to stop Hinz’s vehicle. We have
answered that question in the affirmative due to Morrow’s reliance on an ordinance that was valid
and in effect at the time of the stop. Moreover, Hinz’s claim that the lower courts relied on a
standard wherein they upheld the stop simply on the basis of the officer’s testimony that he
believed what he saw was dangerous is incorrect. The county court specifically stated that it found
the stop to be lawful due to Morrow’s reasonable reliance on a valid ordinance and his personal
observations that a violation had occurred.
        We conclude that Morrow justifiably relied upon a perceived violation of L.M.C.
§10.22.050; thus, he had a reasonable suspicion to stop Hinz’s vehicle.
                                          CONCLUSION
       Following our review of the record, we find Hinz’s assignment of error to be without merit
and therefore affirm the district court’s ruling affirming the county court’s denial of the motion to
suppress.
                                                                                          AFFIRMED.




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