Opinion
No. A-11-577
02-21-2012
STATE OF NEBRASKA, APPELLEE, v. KERRY L. ELLIS, APPELLANT.
Shelley Stall, of Student Legal Services, University of Nebraska-Lincoln, for appellant. John C. McQuinn, Chief Lincoln City Prosecutor, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Lancaster County, ROBERT R. OTTE, Judge, on appeal thereto from the County Court for Lancaster County, LAURIE YARDLEY, Judge. Judgment of District Court reversed and remanded with directions.
Shelley Stall, of Student Legal Services, University of Nebraska-Lincoln, for appellant.
John C. McQuinn, Chief Lincoln City Prosecutor, for appellee.
INBODY, Chief Judge, and CASSEL and PIRTLE, Judges.
INBODY, Chief Judge.
INTRODUCTION
Kerry L. Ellis appeals the order of the district court for Lancaster County affirming her conviction in Lancaster County Court for driving under the influence, second offense, and following another vehicle too closely.
STATEMENT OF FACTS
Ellis was charged in county court with one count of driving under the influence, second offense, and one count of following another vehicle too closely. Ellis pled not guilty to both charges and, thereafter, filed a motion to suppress all evidence and any statements made by Ellis, alleging that the stop of her vehicle was made in violation of her Fourth Amendment rights.
At the hearing on the motion to suppress, Officer Brock Wagner with the Lincoln Police Department testified that on January 29, 2010, at 2:30 a.m., he pulled Ellis' vehicle over. Wagner testified that he was traveling eastbound on A Street in Lincoln, Lancaster County, Nebraska, approximately a quarter of a block behind Ellis. Wagner testified that when he was at the intersection of 16th and A Streets, Ellis was traveling behind a vehicle of which he concluded that Ellis was following too closely. Wagner testified that Ellis applied her brakes "four or five" times, explaining that the vehicle in front of Ellis appeared to be traveling at the 35-m.p.h. speed limit and that Ellis' vehicle appeared to speed up and brake while following the vehicle in front of her too closely. At the intersection of 19th and A Streets, Wagner testified that he initiated the traffic stop of Ellis' vehicle.
On cross-examination, Wagner testified that, at the time of the stop, traffic was on the street and there were stop lights at the intersections of 16th and A Streets, and 17th and A Streets. Wagner testified that he did not remember if either vehicle had stopped at the lights or not. Wagner also specifically testified that Ellis had not weaved within her lane line, had not hit the curb, and did not exceed the speed limit. Wagner also testified that he could not actually see the vehicle in front of Ellis' vehicle and that he had to swerve the police cruiser to the left into the left lane to see the other vehicle.
After the hearing, the county court sustained Ellis' motion to suppress, finding in a journal entry and order, "Follow to[o] close has to be taken into context with what else is going on at the time: amount of traffic, slowing or stopping between traffic control devices, etc. and that was not done in this case." The county court gave the State 15 days to file a notice of appeal or the case was to be dismissed.
Pursuant to Neb. Rev. Stat. §§ 29-824 to 29-826 (Reissue 2008), the State appealed the county court's order sustaining Ellis' motion to suppress to the district court. The district court found that Ellis' vehicle was about 5 feet from the vehicle in front of hers and that Ellis' vehicle swerved to the left, would speed up and then apply its brakes. The district court found that Ellis' driving was unusual and potentially dangerous and that "no 'rule of thumb' is necessary to show that a vehicle traveling five, or even ten to fifteen feet, behind another at a speed of thirty to thirty five miles per hour, is not [sic] following the other vehicle too closely." The district court further determined that the county court's conclusion was not supported by the evidence and was "grounded in conjecture or hypothetical situations that are not present" and reversed the county court's order sustaining the motion to suppress and remanded the matter for further proceedings.
A stipulated bench trial was held before the county court, during which Ellis objected to the evidence based upon her motion to suppress. The county court overruled the motion to suppress based upon the district court's order and found Ellis guilty of driving under the influence, second offense, and following another vehicle too closely. Ellis was sentenced to 30 days in jail, a $500 fine, and 1 year's driver's license revocation for driving under the influence, second offense, and to a $60 fine for following another vehicle too closely. Ellis appealed the convictions to the district court, which affirmed the judgment of the county court. Ellis has now timely appealed to this court.
ASSIGNMENTS OF ERROR
Ellis assigns, rephrased and consolidated, that the district court erred by reversing the county court's order to sustain her motion to suppress. In her brief, Ellis assigns, but does not argue, that the district court erred by affirming her convictions in county court, and argues, but does not assign, that the district court utilized the improper standard of review in reviewing Ellis' convictions. These two issues have not been properly assigned and argued, and therefore, we shall not address either contention on appeal. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
STANDARD OF REVIEW
In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or for abuse of discretion. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id.
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 historical 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 independently of the trial court's determination. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
When reviewing a trial court's ruling on a motion to suppress evidence, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).
ANALYSIS
Ellis' appeal revolves around the district court's reversal of the county court's order sustaining her motion to suppress. However, before reaching the merits of Ellis' argument, we must discuss the county court's articulation of its findings of fact.
In State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996), the Nebraska Supreme Court held that district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress, with the degree of specificity required varying from case to case. In the present case, the motion to suppress was made by the county court and then reviewed by the district court. This court, in State v. Puls, 13 Neb. App. 230, 690 N.W.2d 423 (2004), also held that the county courts were similarly required to comply with the dictates of State v. Osborn, supra.
In Ellis' case, after the suppression hearing, the county court sustained Ellis' motion to suppress, finding in a journal entry and order, "Follow to[o] close has to be taken into context with what else is going on at the time: amount of traffic, slowing or stopping between traffic control devices, etc. and that was not done in this case."
This set of purported findings of fact gives very little information and appears to set forth a finding of what did not occur in this case, and completely fails to articulate any of the findings of fact which did occur and which were the basis for the county court's granting of the motion to suppress. Thus, it follows that the district court's more specific findings of fact set forth in its reversal of the county court's order could not have been based upon the findings of fact of the county court, but were instead the district court improperly reweighing the evidence and/or resolving conflicts in the evidence.
We find that the county court's findings of fact granting Ellis' motion to suppress are insufficient and that in cases such as this, such findings may be indispensable to a proper appellate review. See State v. Osborn, supra. Therefore, we reverse the judgment of the district court reversing the county court's granting of Ellis' motion to suppress with directions to the district court to remand the matter to the county court to set aside Ellis' judgment of convictions and vacate the sentences imposed. Further, we direct the county court to make a determination of the findings of fact in this case based upon the evidence presented at the original hearing on the motion to suppress held in county court on April 9, 2010.
REVERSED AND REMANDED WITH DIRECTIONS.