Petition for Writ of Certiorari — Nebraska v. Childs

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No.

In The

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Supreme Court of the United States; -¢ ; a

October Term, 1992

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APR O 1 19

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f GSS OF THE ¢

STATE OF NEBRASKA, eee

Petitioner,

V.

STEVEN W. CHILDS,

Respondent.

*

Petition For A Writ Of Certiorari

To The Nebraska Supreme Court

*

PETITION FOR A WRIT OF CERTIORARI

¢

Don STENBERG, #14023

Nebraska Attorney General

J. MicHAEL TEsAR #14169

Special Assistant

Attorney General

Hall of Justice 2-West

17th & Farnam St.

Omaha, NE 68183

(402) 444-5294

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225 6964

OR CALL COLLECT (402) 342 2831

QUESTION PRESENTED

Is the investigatory stop of an unregistered motor

vehicle unreasonable within the meaning of the Fourth

Amendment when made pursuant to a statute which

allows the operation of “In Transit” vehicles (i.e. vehicles

bearing a decal provided by dealers in motor vehicles for

15 days after purchase by which time the vehicle is to be

licensed and registered) upon condition that the operator

of such vehicles provides upon demand documents

showing ownership or lawful possession of such motor

vehicle.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

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CA Or AG Peres ORES 5 a ew a nnn eee eee ili

PE ePeGR MENON cues cece yada ee be) ee eae eee 2

STATEMENT OF JLIRGoar. Us os 5c ce evant ceees 2

CONSTITUTIONAL PROVISIONS AND STATUTES

iit & , Deen rer nr en AM ieee 2

Sue emer Se GOO ovina ss ta ene 3

REASONS FOR GRANTING WRIT................. 5

Ck ER tre rn Fe eo er 10

PEF TPEA cea Saw e es a chs kag Pea ee la

A. OPINION OF THE NEBRASKA SUPREME

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B. OPINION OF THE NEBRASKA COURT OF

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TABLE OF AUTHORITIES

Page

Cases

Colonnade Corp. v. United States, 397 U.S. 72, 90

ie See gm &” EO) 8

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59

8 lg See ae ee

Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69

a Ere a are 8

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

rn ee eee 5

New York v. Burger, 482. U.S. 691, 107 S.Ct. 2636, 96

nae 6, 9

New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89

6 | ere eh Fao

South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct.

| ee 6

State v. Childs, 242 Neb. 426, 495 N.W.2d 475 (1993) passim

United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593,

i BOE). go Sar 8, 9

STATUTES

Neb. Rev. Stat. Sec. 39-6,188 (Reissue 1988)........... 3

Neb. Rev. Stat. Sec. 60-302 (Cum. Supp. 1990)........ 3

Rs Er 3

Ree RMR, , GSA OMO). 66. ee eee 3

UR, GE, PSSM) vn cee cee ea eee eae 4

TE es rr ee 2

4

In The

Supreme Court of the United States

October Term, 1992

¢

STATE OF NEBRASKA,

Petitioner,

STEVEN W. CHILDS,

Respondent.

Petition For A Writ Of Certiorari

To The Nebraska Supreme Court

¢

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, the State of Nebraska, respectfully

prays that a writ of certiorari issue to review the judg-

ment of the Supreme Court of Nebraska entered on Feb-

ruary 12, 1993, in State v. Childs, 242 Neb. 426, 495 N.W.2d

475 (1993)

OPINIONS BELOW

The February 12, 1993, opinion of the Nebraska

Supreme Court, whose judgment is herein sought to be

reviewed is reported at State v. Childs, 242 Neb. 426, 495

N.W.2d 475 (1993) and is reprinted in the separate

Appendix to this Petition, Appendix A.

STATEMENT OF JURISDICTION

The judgment of the Nebraska Supreme Court was

entered February 12, 1993. The jurisdiction of this Court

is invoked under 28 U.S.C. Section 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

This case involves an issue concerning police conduct

challenged as repugnant to the Fourth Amendment to the

Constitution of the United States, which provides as fol-

lows:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

An Omaha police officer stopped Respondent’s Ford

automobile which displayed “In Transit” stickers. Officer

Greg Wyant noticed Respondent’s vehicle because it ”. . .

had no license plates on it.” [12:11] All that could be read

on a decal in the window were the words “in transit.”

[12:17] After the stop the officer asked Respondent, the

driver, for a bill of sale. The officer noticed that Respon-

dent was intoxicated and arrested him for drunk driving.

[14:19]

Nebraska’s statutory scheme for regulating such

operat’ on is set out in the opinion sought to be reviewed

as follows:

Neb. Rev. Stat. Sec. 60-302 (Cum. Supp. 1990) pro-

vides that “[n]o motor vehicle . . . unless otherwise

expressly provided, shall be operated on the highways of

this state unless such vehicle is registered in accordance

with Chapter 60, article 3.” Any person who operates a

vehicle which has not been registered is subject to the

penalty for a Class III misdemeanor. See Neb. Rev. Stat.

Secs. 60-302.03 and 39-6,188 (Reissue 1988). Section

60-320(3)(b), the statute in effect when Childs was

arrested, provided an exception to the registration

requirement: A person who purchases a motor vehicle

from a licensed dealer may drive the vehicle on a

Nebraska highway

without charge or registration of such vehicle or

trailer. There shall be displayed on the front and

rear windows of such motor vehicle . . . a decal

on which shall be plainly printed in black letters

not less than two inches high the words In Tran-

sit... such transit decal shall allow such owner

to operate the motor vehicle .. . for a period of

fifteen days in order to effect proper registration

of the new or used motor vehicle or trailer

. . . Upon demand of proper authorities, there

shall be presented by the person in charge of

such motor vehicle or trailer, for examination, a

duly executed bill of sale therefor, a certificate

of title, or other satisfactory evidence of the

right of possession by such person of such

motor vehicle .. .

Section 60-320(5) states in part that “[i]t shall be the

duty of all law enforcement officers to arrest and pros-

ecute all violators” of the aforementioned statutes con-

cerning registration of motor vehicles and use of In

Transit decals. State v. Childs, 242 Neb. 426, 429, 495

N.W.2d 475 (1993). Appendix A p. 4a-5a.

How The Federal Question Was Raised

The federal question was raised in the trial court ina

suppression motion which urged the trial court to

exclude evidence as seized in violation of the Fourth

Amendment. [T4] Appendix C p. 25a. The trial court, the

District Court for Nebraska’s Fourth District, denied that

motion. [23:6]

The Fourth Amendment issues were raised in the

appellate courts (the Nebraska Court of Appeals and the

Nebraska Supreme Court) by assignment of error. Appen-

dix D p. 26a. The Nebraska Court of Appeals in State v.

Childs, 1 N.C.A. 478, 482 (1992) Appendix B p. 23a,

affirmed the trial court holding no Fourth Amendment

violation occurred. The Nebraska Supreme Court

reversed the lower courts by holding that the investiga-

tory stop of Respondent’s vehicle violated the Fourth

Amendment. State v. Childs, 242 Neb. 426, 438, 495

N.W.2d 475 (1993). Appendix A p. 16a.

While the Nebraska Supreme Court mentions a pro-

vision of the Nebraska Constitution in addition to the

Fourth Amendment, it is important to note that the

Fourth Amendment is the exclusive grounds urged for

exclusion in Respondent’s Suppression Motion [T4]

Appendix C and when the Suppression Motion was

renewed at trial and overruled. [29:1-9]

The assignment of error reproduced at Appendix D

likewise mentions the Fourth Amendment but makes no

reference to the Nebraska Constitution.

e

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the Nebraska

Supreme Court has decided a federal question in a way

that conflicts with applicable decisions of this Court or

has decided an important question of federal law which

has not been, but should be, settled by this Court.

While a citizen does not surrender all the protections

of the Fourth Amendment by entering an automobile,

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d

660 (1979); New York v. Class, 475 U.S. 106, 106 S.Ct. 960,

89 L.Ed.2d 81 (1986); the State’s intrusion into a particular

area, whether an automobile or elsewhere, cannot result

in a Fourth Amendment violation unless the area is one

in which there is a “Constitutionally protected reasonable

expectation of privacy.” Katz v. United States, 389 US. 347,

88 S.Ct. 507, 19 L.Ed.2d 576 (1967): New York v. Class, 475

L.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).

Since automobiles are the subject of pervasive gov-

ernmental regulation, the operator of a motor vehicle has

a diminished expectation of privacy. South Dakota v.

Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000

(1976); New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89

L.Ed.2d 81 (1986).

Part of the pervasive regulation of motor vehicles is

the ubiquitous requirement that they be registered and

carry current license plates. Within the licensing /registra-

tion sphere of State regulation is the contri of under

what circumstances, if any, a motor vehicle may be oper-

ated after it is purchased but before it is registered and

license plates are issued for it.

Thus, if Respondent had an expectation of privacy

which the Court finds reasonable, the seizure of his auto-

mobile in this investigatory stop was in violation of the

Fourth Amendment and all of the evidence of his intox-

ication must be suppressed by virtue of the exclusionary

rule. If, on the other hand, Respondent's expectation of

privacy was so diminished by his involvement in the

pervasively regulated activity of operating a motor vehi-

cle that had not yet been registered or issued license

plates then no Fourth Amendment violation occurred.

Effect of “Pervasive Regulation”

This Court has had several occasions to examine the

impact of pervasive regulation upon a citizen’s expecta-

tion of privacy.

In New York v. Class, above, this Court held there was

no Fourth Amendment violation in a police officer’s

reaching into the passenger compartment of a vehicle to

move papers obscuring the VIN, Vehicle Identification

Number, after the vehicle’s driver had been stopped for a

traffic violation and had exited the car. After discussing

the pervasive regulation of vehicles, the Court noted at 99

S.Ct. 965: “The factors that generally diminish the reason-

able expectation of privacy in automobiles are applicable

a fortiori to the VIN.” Likewise the factors that generally

diminish the reasonable expectation of privacy in auto-

mobiles are applicable a fortiori to one who has yet to

register his vehicle and is required by statute to produce

upon demand a bill of sale or its equivalent.

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59

L.Ed.2d 660 (1979), this Court held that except in those

situations in which there is at least articulable and rea-

sonable suspicion that a motorist is unlicensed or that an

automobile is not registered, or that either the vehicle or

an occupant is otherwise subject to seizure for violation

of law, stopping an automobile and detaining the driver

in order to check his driver’s license and the registration

of the automobile are unreasonable under the Fourth

Amendment. Stops of “In Transit” vehicles meet this test

because such vehicles are by definition not yet registered.

Delaware v. Prouse, above, made specific reference to

the presence of license plates negating the need for spot

checks saying,

Furthermore, in Delaware, as elsewhere, vehi-

cles must carry and display current license

plates, which themselves evidence that the vehi-

cle is properly registered; . . . and, because there

is nothing to show that a significant percentage

of automobiles from other States do not also

require license plates indicating current registra-

tion, there is no basis for concluding that stop-

ping even out-of-state cars for document checks

substantially promotes the State’s interest. 99

S.Ct. at 1399, 1400, 400 U.S. at 660, 661.

Respondent's vehicle had no license plates.

Delaware v. Prouse, above, required an articulable

basis amounting to reasonable suspicion that a vehicle is

unregistered as one alternative justification for stopping a

motor vehicle, 440 U.S. at 661, 99 S.Ct. at 1400. The officer

who stopped Respondent upon seeing the In Transit decal

thereby knew Respondent’s vehicle was not yet regis-

tered.

In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96

L.Ed.2d 601 (1987), a case involving the warrantless

administrative search of a junkyard by police officers, the

Court reviewed the Colonnade-Biswell doctrine which

states that there is a reduced expectation of privacy ina

closely regulated business. In addition to junkyard opera-

tion, such activities as sale of liquor Colonnade Corp. v.

United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60

(1970); traffic in firearms United States v. Biswell, 406 U.S.

311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); and mining

Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d

262 (1981), have a history of regulation that reduces the

expectation of privacy the owner or operator of such

businesses enjoys. New York v. Burger, above, noted,

We pointed out that the doctrine is essentially

defined by “The pervasiveness and regularity of

the federal regulation” and the effect of such

regulation upon an owner's expectation of pri-

vacy. 482 U.S. at 701, 107 S.Ct. at 2643.

Likewise, driving an automobile is a “pervasively

regulated” activity, New York v. Class, above, and since the

legislature is not required to give any “grace period,” that

is, it could strictly prohibit operation of any vehicle with-

out current plates and registration, the stopping of

drivers during this in transit or grace period pursuant to

a statute saying they are required to produce proof of

ownership is reasonable.

New York v. Burger, above, quotes from United States v.

Biswell, 482 U.S. at 701, 107 S.Ct. at 2643, saying:

When a dealer chooses to engage in this per-

vasively regulated business and to accept a fed-

eral license, he does so with the knowledge that

his business records, firearms, and ammunition

will be subject to effective inspection.

New York v. Burger, 482 U.S. at 711, 107 S.Ct. at 2648,

96 L.Ed.2d at 619, goes so far as to say that the New York

statute provides a “constitutionally adequate substitute”

for a warrant. Likewise in this case, an automobile bear-

ing in transit decals and no license plates is subject to

statutory regulation and its operator knows the inspec-

tion of his proof of ownership is not a discretionary act of

an officer but is conducted pursuant to statute.

While we recognize the limits of the analogy between

administrative inspections of regulated businesses and police

stops of unlicensed cars, the failure of the Nebraska Supreme

Court to apply the diminished expectation of privacy ratio-

nale of those cases in its analysis of Delaware v. Prouse,

constitutes a conflict with this Court’s guidelines.

10

In Nebraska when a driver chooses to engage in the

pervasively regulated activity of operating an automobile

and to accept the statutory privilege of operating a vehi-

cle under an exception to the usual requirements concern-

ing license plates and registration, he does so with the

knowledge that he is subject to a stop to check his proof

of ownership pursuant to statute. Therefore, no enforce-

able expectation of privacy is violated by such stops.

+

CONCLUSION

Wherefore, Peititioner, prays that a Writ of Certiorari

issue from this Honorable Court to review the judgment

of the Supreme Court of Nebraska in State v. Childs, 242

Neb. 426, 495 N.W.2d 475 (1993). In the event that the

Petition is granted, Petitioner prays that the judgment of

the court below be reversed, that the cause be remanded,

and that the court below be directed to affirm Respon-

dent’s Drunken Driving conviction since it was not based

upon tainted and inadmissible evidence.

STATE OF NEBRASKA,

Petitioner,

Don STENBERG, #14023

Attorney General

By J. MicHaAeEL Tesar #14169

Special Assistant Attorney

General

Hall of Justice 2-West

17th & Farnam St.

Omaha, NE 68183

(402) 444-5294

Attorneys for Petitioner.

la

APPENDIX A

STATE OF NEBRASKA, APPELLEE,

v. STEVEN W. CHILDS, APPELLANT.

242 Neb. 426, 495 N.W.2d 475 (1993)

Filed February 12, 1993. No. S-91-192.

Petition for further review from the Nebraska Court

of Appeals, CoNNoLLy, IRwiN and MILLER-LERMAN, Judges,

on appeal thereto from the District Court for Douglas

County, Jerry M. Gitnick, Judge. Judgment of Court of

Appeals reversed, and cause remanded with direction.

David W. Childs for appellant.

Don Stenberg, Attorney General, and Gary P. Buc-

chino, Omaha City Prosecutor, and J. Michael Tesar for

appellee.

Michael F. Gutowski for amicus curiae Nebraska

Civil Liberties Union Foundation.

Hastincs, C.]., BosLAUGH, WHITE, CAPORALE, SHANAHAN,

GRANT, and FAHRNBRUCH, J.J.

SHANAHAN, J.

Pursuant to Neb. Rev. Stat. § 24-1107 (Cum. Supp.

1992), this court has accepted the petition of Steven W.

Childs for our review of the decision by the Nebraska

Court of Appeals, namely, State v. Childs, 1 NCA 478

(1992), wherein the Nebraska Court of Appeals affirmed

Childs’ conviction of driving while under the influence of

alcohol (drunk driving), in violation of Neb. Rev. Stat.

§ 39-669.07 (Cum. Supp. 1990). At issue is the refusal of

2a

the district court for Douglas County to suppress evi-

dence obtained at the time of Childs’ arrest and used by

the State for Childs’ conviction in a bench trial.

Around 2:30 a.m. on October 16, 1990, Officer Greg

Wyant of the Omaha Police Division was on routine

cruiser patrol near 60th and Northwest Radial Highway

in Omaha when he observed a blue 1989 Ford Tempo

moving on the highway. Wyant saw nothing suspicious or

out of the ordinary about the general appearance of the

Ford or its operation, that is, no appearance of physical

deficiency on the car, such as a missing or burned-out

headlight, no unusual or erratic movement, and nothing

unlawful in the driver’s handling of the automobile.

However, from his cruiser Wyant did see “In Transit”

stickers or decals displayed on the Ford’s front and rear

windows. At that time, Wyant did not know who was

driving the Ford, although the driver was later identified

as Childs. Also, Wyant had no information that a vehicle,

matching the description of the Ford, or its occupant had

been involved in any criminal activity. Nevertheless,

Wyant stopped the Ford, walked by the “In Transit”

sticker displayed on one of the Ford’s windows, noted

that the sticker was still within the In Transit period and

was therefore, valid, and then went to the driver’s win-

dow where he asked Childs for a bill of sale and motor

vehicle registration for the Ford. During this exchange,

Wyant noticed that Childs exhibited “symptoms of intox-

ication.” As a result of field sobriety tests administered to

Childs, Wyant arrested him for drunk driving.

After the drunk driving complaint was filed in the

district court, Childs filed his suppression motion, seek-

ing exclusion of evidence obtained as the result of

3a

Wyant’s stop which, Childs claimed, was an unlawful

stop with a consequent unreasonable search and seizure

contrary to U.S. Const. amend. IV and Neb. Const. art. I,

‘7.

At the suppression hearing, Wyant testified about his

general observations of Childs’ Ford shortly before the

highway stop. During his testimony, Wyant acknowl-

edged that while he was in his cruiser and before he

stopped Childs, he did see the In Transit stickers or

decals displayed on the windows of Childs’ car. The

decals inside Childs’ Ford satisfied the printing and dis-

play requirements of Neb. Rev. Stat. § 60-320(3)(b) (Reis-

sue 1988) (window display, front and rear, of a decal on

which In Transit shall be printed in black letters at least 2

inches high). As Wyant confirmed, each of the displayed

decals on Childs’ car was “a legal in-transit from a

dealer.” Wyant also testified that his sole reason or pur-

pose for stopping Childs’ car was “to check the validity

of the in-transits” and that he had no information or

indication that any Nebraska law or Omaha ordinance

had been violated, or was being violated, by Childs,

either apart from his driving or while driving the Ford

that Wyant stopped.

The district court denied Childs’ suppression motion.

At his bench trial, Childs renewed his constitutional

objection that Wyant obtained evidence in violation of

Childs’ right to be free from an unreasonable search and

seizure by police. See, U.S. Const. amend. IV; Neb. Const.

Art. I, § 7. Subject to Childs’ constitutional objection, the

State introduced evidence, obtained after Wyant stopped

Childs, showing that Childs was under the influence of

4a

alcoholic liquor when Wyant stopped Childs’ automobile.

See § 39-669.07. The Court found Childs guilty of drunk

driving and imposed a sentence on him.

In Childs’ appeal to the Nebraska Court of Appeals,

the focal point became several Nebraska statutes perti-

nent to registration of motor vehicles.

Neb. Rev. Stat. § 60-302 (Cum. Supp. 1990) provides

that “[n]o motor vehicle . . . unless otherwise expressly

provided, shall be operated on the highways of this state

unless such vehicle is registered in accordance with

Chapter 60, article 3.” Any person who operates a vehicle

which has not been registered is subject to the penalty for

a Class III misdemeanor. See Neb. Rev. Stat. §§ 60-302.03

and 39-6,188 (Reissue 1988). Section 60-320(3)(b), the stat-

ute in effect when Childs was arrested, provided an

exception to the registration requirement: A person who

purchases a motor vehicle from a licensed dealer may

drive the vehicle on a Nebraska highway

without charge or registration of such vehicle or

trailer. There shall be displayed on the front and

rear windows of such motor vehicle . . . a decal

on which shall be plainly printed in black letters

not less than two inches high the words In Tran-

sit... . Such transit decal shall allow such owner

to operate the motor vehicle . . . for a period of

fifteen days in order to effect proper registration

of the new or used motor vehicle or trailer... .

Upon demand of proper authorities, there shall

be presented by the person in charge of such

motor vehicle or trailer, for examination, a duly

executed bill of sale therefor, a certificate of title,

or other satisfactory evidence of the right of

Oe

5a

possession by such person of such motor vehi-

ee

Section 60-320(5) states in part that “[i]t shall be the duty

of all law enforcement officers to arrest and prosecute all

violators” of the aforementioned statutes concerning reg-

istration of motor vehicles and use of In Transit decals.

In affirming Childs’ conviction, the Nebraska Court

of Appeals concluded that the district court properly

denied Childs’ suppression motion, since “Childs was

stopped because he had In Transit stickers on his win-

dows” and Wyant’s stop was “required by § 60-320,”

State v. Childs, 1 NCA 478, 481 (1992), for the reason that

the only way to determine if the registration is

current in a newly purchased vehicle is to stop

the vehicle. Pursuant to the statute these ran-

dom stops may only be directed at vehicles

which carry In Transit stickers. The stops shall

only be made for the first 15 days of vehicle

ownership, and the officer must check the bill of

sale and certificate of title. This type of stop is

not the “standardless and unconstrained” gov-

ernmental discretionary evil about which the

U.S. Supreme Court was concerned in [Delaware

v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed.

2d 660 (1979)].

1 NCA at 481-82. The Nebraska Court of Appeals contin-

ued:

The Nebraska statute does not grant the

police “unlimited interference with the use of

the highways” [United States v. Martinez-Fuerte,

428 U.S. 543, 559, 96 S. Ct. 3074, 49 L. Ed. 2d

1116 (1976)], merely a 15-day window where the

motorist may be stopped, § 60-320(3)(b). Lastly,

6a

the motorist, recognizing that the registration

date on the In Transit stickers cannot be read

unless the driver is stopped, is essentially on

notice, and therefore the driver’s concern or

fright at being stopped is appreciably less. This

court agrees with the trial court that based on

the record in this case, the stop was neither

arbitrary, Oppressive, nor an indiscriminate

abuse of discretion and is therefore consistent

with the Fourth Amendment.

1 NCA at 482.

SUPPRESSION OF EVIDENCE

Childs’ First Assignment of Error.

As his first assignment of error, Childs claims that

the district court erred by denying Childs’ suppression

motion concerning evidence obtained as the result of

Wyant’s stop and used by the State to convict Childs.

Standard of Review.

In determining the correctness of a trial

court’s ruling on a motion to suppress evidence

claimed to be constitutionally inadmissible, an

appellate court will uphold the trial court’s find-

ings of fact unless those findings are clearly

erroneous. In reviewing a trial court’s findings

On a suppression motion, an appellate court rec-

ognizes the trial court as the “trier of fact” and

takes into consideration that the trial court has

observed witnesses testifying regarding such

motion.

State v. Thomas, 240 Neb. 545, 547, 483 N.W.2d 527, 530

(1992). Accord, State v. Coleman, 239 Neb. 800, 478 N.W.2d

7a

349 (1992). See, also, State v. Staten, 238 Neb. 13, 469

N.W.2d 112 (1991); State v. Abdouch, 230 Neb. 929, 434

N.W.2d 317 (1989).

CONSTITUTIONALITY OF THE STOP

State’s Burden.

“If police have acted without a search warrant, the

State has the burden to prove that the search was con-

ducted under circumstances substantiating the rea-

sonableness of such search or seizure.” State v. Staten, 238

Neb. at 21, 469 N.W.2d at 118. Accord, State v. Thomas,

supra; State v. Juhl, 234 Neb. 33, 449 N.W.2d 202 (1989);

State v. Abdouch, supra; State v. Vrtiska, 225 Neb. 454, 406

N.W.2d 114 (1987), cert. denied 484 U.S. 863, 108 S.Ct. 180,

98 L.Ed.2d 133.

Constitutional Guarantee Against Unreasonable Search and

Seizure.

Both the U.S. Const. amend IV and Neb. Const. art. I,

§ 7, guarantee “[t]he right of people to be secure in their

persons, houses, papers, and effects against unreasonable

searches and seizures shall not be violated.”

Thus, to determine whether evidence obtained after,

and produced by, Childs’ stop was constitutionally inad-

missible, we must first determine whether Wyant’s stop-

ping Childs’ car violated U.S. Const. amend. IV or Neb.

Const. art. I, § 7.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968), the U.S. Supreme Court considered the right

to privacy of a person who, while walking on a public

8a

street, was stopped and searched by police. In Terry, the

Court observed:

The Fourth Amendment provides that “the

right of the people to be secure in their persons,

houses, papers, and effects, against unreason-

able searches and seizures, shall not be vio-

lated. ... ” This inestimable right of personal

security belongs as much to the citizen on the

streets of our cities as to the homeowner clos-

eted in his study to dispose of his secret affairs.

For, as this Court has always recognized, “No

right is held more sacred, or is more carefully

guarded, by the common law, than the right of

every individual to the possession and control

of his own person, free from all restraint or

interference of others, unless by clear and

unquestionable authority of law.” Union Pac. R.

Co. v. Botsford, 141 U.S. 250, 251 (1891). . .

Unquestionably [Terry] was entitled to the pro-

tection of the Fourth Amendment as he walked

down the street in Cleveland.

392 U.S. at 8-9.

Thus, a motorist on a public highway or street may

have a legitimate expectation of privacy within a motor

vehicle, or, as expressed in Delaware v. Prouse, 440 U.S.

648, 662, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979): “An indi-

vidual operating or traveling in an automobile does not

lose all reasonable expectation of privacy simply because

the automobile and its use are subject to government

regulation.” See, also, State v. Crom, 222 Neb. 273, 383

N.W.2d 461 (1986).

In Delaware v. Prouse, supra, a case involving a police

officer’s discretionary spot check for a driver’s license

9a

and motor vehicle registration, the U.S. Supreme Court

also stated:

The Fourth and Fourteenth Amendments

are implicated in this case because stopping an

automobile and detaining its occupants consti-

tute a “seizure” within the meaning of those

Amendments, even though the purpose of the

Stop is limited and the resulting detention quite

brief... . The essential purpose of the proscrip-

tions in the Fourth Amendment is to impose a

standard of “reasonableness” upon the exercise

of discretion by government officials, including

law enforcement agents, in order “ ‘to safeguard

the privacy and security of individuals against

arbitrary invasion. ...’” Marshall v. Barlow’s,

Inc., 436 U.S. 307, 312 (1978), quoting Camara v.

Municipal Court, 387 U.S. 523, 528 (1967).

440 U.S. at 653-54.

Investigatory Stops; Basis.

“[P]olice can constitutionally stop and briefly detain

a person for investigative purposes if the police have a

reasonable suspicion, supported by articulable facts, that

criminal activity exists, even if probable cause is lacking

under the fourth amendment.” State v. Staten, 238 Neb.

13, 18, 469 N.W.2d 112, 116 (1991). Accord, State v.

Thomas, 240 Neb. 545, 483 N.W.2d 527 (1992); State v.

Coleman, 239 Neb. 800, 478 N.W.2d 349 (1992); State v.

Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991). “Reasonable

suspicion entails some minimal level of objective justi-

fication for detention, something more than an inchoate

and unparticularized suspicion or ‘hunch,’ but less than

10a

the level of suspicion required for probable cause.” State

v. Staten, 238 Neb. at 18, 469 N.W.2d at 116-17.

Reasonable suspicion, as a prerequisite for a constitu-

tional investigatory stop, cannot be based only on a

police officer’s desire to verify compliance with motor

vehicle registration statutes. In Delaware v. Prouse, supra,

the U.S. Supreme Court emphatically rejected arbitrary

police stops for the sole purpose of conducting a regula-

tory inspection of vehicles or drivers and offered the

following observation and condemnation:

When there is not probable cause to believe that

a driver is violating any one of the multitude of

applicable traffic and equipment regulations -

or other articulable basis amounting to reason-

able suspicion that the driver is unlicensed or

his vehicle unregistered — we cannot conceive of

any legitimate basis upon which a patrolman

could decide that stopping a particular driver

for a spot check would be more productive than

stopping any other driver.

440 U.S. at 661.

If police, for an investigatory purpose, unconstitu-

tionally stop a person, evidence obtained by a search of

the person stopped is constitutionally inadmissible as the

“fruit of the poisonous tree.” Wong Sun v. United States,

371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See State v.

Thomas, supra.

In Wong Sun, the U.S. Supreme Court required

exclusion not only of evidence directly pro-

duced by a constitutionally invalid search but

lla

also evidence indirectly derived from the uncon-

Stitutional search. Reference to “fruit of the poi-

sonous tree” in Wong Sun is a condemnation of

the government’s subsequent exploitation of a

prior violation of a defendant’s constitutional

right. As expressed in Wong Sun, whether evi-

dence is the derivative product of a constitu-

tionally invalid search turns on the question

“ “whether, granting establishment of the pri-

mary illegality, the evidence to which instant

objection is made has been come at by exploita-

tion of that illegality or instead by means suffi-

ciently distinguishable to be purged of the

primary taint.’ ” 371 U.S. at 488. (Quoting from

J. Maguire, Evidence of Guilt (1959).)

State v. Abdouch, 230 Neb. 929, 943-44, 434 N.W.2d 317,

326 (1989). Accord State v. Thomas, supra. Thus, evidence

obtained by an unreasonable search and seizure, includ-

ing evidence that is indirectly derived from the uncon-

Sstitutional search and seizure, is constitutionally

inadmissible in a criminal trial.

Although there may be some circumstances “ ‘in

which wholly lawful conduct might justify the suspicion

that criminal activity was afoot.’” State v. Thomas, 240

Neb. at 559, 483 N.W.2d at 537 (quoting from Reid v.

Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890

(1980)), to determine whether stopping a person on a

public street is constitutionally permissible, a court must

assess all the circumstances surrounding the stop, includ-

ing “all of the objective observations and considerations,

as well as the suspicion drawn by a trained and experi-

enced police officer by inference and deduction that the

individual stopped is or has been or is about to be

12a

engaged in criminal behavior.” State v. Ebberson, 209 Neb.

41, 45, 305 N.W.2d 904, 907 (1981).

In its opinion rendered in Childs’ appeal, the

Nebraska Court of Appeals cited United States v. Mar-

tinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116

(1976), as support for its conclusion that Wyant’s stop of

Childs was constitutionally permissible. However, Mar-

tinez-Fuerte can be readily distinguished from Childs’

case: (1) In Martinez-Fuerte, the questioned stop occurred

at a permanent border checkpoint, whereas Wyant

stopped Childs while he was in the process of lawfully

driving on a public street, and (2) according to the U.S.

Supreme Court, decreasing the number of illegal entrants

into the United States was a national policy, but posed

formidable law enforcement problems. Ensuring compli-

ance with vehicular registration statutes does not rise to

the level of, and cannot be compared with, the enforce-

ment of immigration laws in conjunction with a national

policy.

Moreover, in Martinez-Fuerte, the Court recognized

that random and roving patrol stops were constitu-

tionally intolerable because such stops

the residents of [the area] to potentially unlimited inter-

would subject

ference with their use of the highways, solely at the

discretion of [police].’” 428 U.S. at 558-59. Therefore,

Martinez-Fuerte and its involvement of a legitimate and

permanent or stationary checkpoint is inapplicable to

Childs’ case.

13a

DID WYANT CONSTITUTIONALLY STOP CHILDS?

In our analysis of the undisputed testimony, Wyant,

before stopping Childs, had no indication and, therefore,

no real or factually based suspicion that Childs had been

engaged in, was presently engaged in, or was about to

engage in any criminal activity. According to Wyant, the

sole and simple basis for his stopping Childs’ car was to

“check if the vehicle was within the in-transit period.”

The State asserts that Wyant had a particularized

suspicion that Childs was violating § 60-302 because, in

every situation where a motorist drives a car displaying

an In Transit decal, “the officer who sees a car being

driven on a street without plates should suspect a viola-

tion is occurring in his presence.” Brief for appellee at 6.

If the State’s argument that an In Transit plate furnishes a

particularized suspicion of lawbreaking, and, therefore,

criminal activity, the result would be a constitutionally

Suspect presumption that every motorist who uses In

Transit decals is presumed to be a lawbreaker involved in

criminal activity. Yet, “[t]he presumption of innocence,

although unarticulated in the U.S. and Nebraska Consti-

tutions, is a basic component of a defendant’s fair trial

and, therefore, an aspect of due process in the criminal

justice system.” State v. Jasper, 237 Neb. 754, 759, 467

N.W.2d 855, 859 (1991). Accord State v. Harney, 237 Neb.

512, 466 N.W.2d 540 (1991). See, also, Estelle v. Williams,

425 US. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

Moreover, § 60-302, read in conjunction with

§ 60-320(3)(b), authorizes operation of a motor vehicle for

15 days provided that the vehicle properly displays In

Transit decals.

l4a

It is true that § 60-320(3)(b) states that

[u]pon demand of proper authorities, there shall

be presented by the person in charge of such

motor vehicle or trailer, for examination, a duly

executed bill of sale therefor, a certificate of title,

or other satisfactory evidence of the right of

possession by such person of such motor vehicle

or trailer.

However, the preceding statute does not direct police to

stop all vehicles displaying In Transit decals. Hence, the

inescapable questions are: For a stop to check the validity

of In Transit decals, what is the standard for a police

officer’s stopping a particular vehicle but not another?

On what basis does an officer stop an In Transit motorist

from among all other In Transit motorists who, for all

appearances and purposes, are lawfully traveling on a

public highway or street? None of the Nebraska statutes

implicated in Childs’ case supplies a reasonable standard

for stopping a motorist whose vehicle displays In Transit

decals. Moreover, whatever might be statutorily pre-

scribed or authorized for stopping In Transit motorists is

subject to the constitutional safeguard against an unrea-

sonable search and seizure. Without a reasonable stan-

dard for stopping motorists to check the validity of In

Transit decals, a distinct and perhaps substantial segment

of the motoring public is left to random and roving stops

by police in the “ ‘unfettered discretion of officers in the

field.’ ” State v. Crom, 222 Neb. 273, 277, 383 N.W.2d 461,

463 (1986) (quoting from Brown v. Texas, 443 U.S. 47, 99

S.Ct. 2637, 61 L.Ed.2d 367 (1979)).

When faced with a question similar to that in Childs’

appeal, courts in at least two other states have held that

15a

police exceed their authority for an investigatory stop of

a vehicle when the basis for the stop is solely the display

of temporary or In Transit license plates, placards, or

decals. See State v. Chatton, 11 Ohio St. 3d 59, 63, 463

N.E.2d 1237, 1240 (1984), cert. denied 469 U.S. 856, 105

S.Ct. 182, 83 L.Ed.2d 116: “[O]nce the police officer herein

observed the temporary tags, appellee could no longer be

reasonably suspected of operating an unlicensed or

unregistered vehicle.” See, also, State v. Farley, 308 Or. 91,

94, 775 P.2d 835, 836 (1989): “Upon seeing the temporary

permit, the justification of any investigation was vitiated.

Plain and simple, the officer had no statutory authority to

proceed further. That authority ended with the officer’s

discovery that the traffic infraction he was investigating

had not actually occurred.”

We cannot accept that every motorist who operates a

vehicle displaying In Transit decals waives the protection

against an unconstitutional stop and invalid search and

seizure as a consequence of the stop. First, even if In

Transit decals were issued in return for a motorist’s

waiver of the constitutional protection against an unrea-

sonable search and seizure, surrender of the constitu-

tional guarantee in exchange for In Transit decals might

well be too costly and excessive a price to pay for driving

a vehicle on a public highway or street. Second, assuming

that a waiver of the protection against an unreasonable

search and seizure were constitutionally permissible

under the circumstances, none of the evidence in Childs’

case supports existence of a waiver, “the voluntary and

intentional relinquishment of a known right, privilege, or

claim, [which] may be demonstrated by or inferred from

a person’s conduct.” State v. Kennedy, 224 Neb. 164, 170,

l6a

396 N.W.2d 722, 726 (1986). Accord, Ehlers v. Perry, ante p.

208, _ N.W.2d __ (1993); Stuhr v. Stuhr, 240 Neb. 239,

481 N.W.2d 212 (1992); State v. Clear, 236 Neb. 648, 463

N.W.2d 581 (1990).

We believe that there are other, less intrusive means

to check the validity of In Transit decals without random

and roving stops for that purpose. However, we decline

to comment about those other available means, lest our

expression be an intrusion into the province of the legis-

lative or executive branch, or both branches, appro-

priately controlling operation of motor vehicles on public

highways and streets. Consequently, we hold that

because Wyant lacked a reasonable and articulable suspi-

cion or basis for the conclusion that Childs had been

involved, was presently involved, or was about to

become involved in any criminal activity, Wyant’s stop-

ping Childs violated U.S. Const. amend. IV and Neb.

Const. art. I, § 7. See, State v. Thomas,-240 Neb. 545, 483

N.W.2d 527 (1992); State v. Coleman, 239 Neb. 800, 478

N.W.2d 349 (1992); State v. Twohig, 238 Neb. 92, 469

N.W.2d °344 (1991); State v. Staten, 238 Neb. 13, 469

N.W.2d 112 (1991). For that reason, the district court,

pursuant to Childs’ suppression motion and his constitu-

tional objection renewed at trial, should have suppressed

and excluded the convictive evidence obtained after

Wyant unconstitutionally stopped Childs. Since the State

has used constitutionally inadmissible and tainted evi-

dence to convict Childs, his conviction should have been

set aside.

17a

DUE PROCESS

Childs also contends that the State’s dismissing the

charge against him in the county court, after that court

had sustained his suppression motion, and then refiling

the same charge in the district court violates his right to

due process. However, in view of our conclusion that the

stop of Childs was unconstitutional, we need not address

the due process question.

CONCLUSION

In light of our holding in this further review of

Childs’ appeal, we reverse the judgment of the Nebraska

Court of Appeals, reflected in State v. Childs, 1 NCA 478

(1992), and remand this cause to the Nebraska Court of

Appeals with direction that the Nebraska Court of

Appeals shall enter judgment reversing the district

court’s conviction of Childs and remand Childs’ case to

the district court for further proceedings.

18a

APPENDIX B

STATE OF NEBRASKA, APPELLEE,

v. STEVEN W. CHILDS, APPELLANT.

Filed May 19, 1992. No. A-91-192. (1 NCA 478)

Appeal from the District Court for Douglas County:

Jerry M. Girnick, Judge. Affirmed.

David W. Childs for appellant.

Don Stenberg, Attorney General, and Gary P. Buc-

chino, Omaha City Prosecutor, and J. Michael Tesar for

appellee.

Michael F. Gutowski for amicus curiae Nebraska

Civil Liberties Union Foundation.

CONNOLLY, IRWIN, AND MILLER-LERMAN, Judges.

Miccer-LeRMAN, Judge.

Steven W. Childs, appellant, was stopped by an

Omaha police officer to verify the validity of “In Transit”

stickers posted on Childs’ vehicle. After the stop, Childs

was noted to appear intoxicated and was subsequently

arrested for driving while under the influence of alcohol.

Childs filed a motion to suppress the evidence seized on

the grounds that the stop had violated his Fourth Amend-

ment right to be free from unreasonable search and sei-

zure. The motion was granted at the county court level.

The State of Nebraska dismissed the action and refiled in

the district court, pursuant to Neb. Rev. Stat. § 29-827

(Reissue 1989). The district court overruled Childs’

motion to suppress. Childs was found guilty of driving

while under the influence and now appeals the district

court’s ruling on the motion to suppress and asserts that

19a

the refiling of the case in district court violated Childs’

due process rights. For the reasons recited below, we

affirm the ruling of the district court.

When reviewing a trial court’s ruling on a motion to

suppress, the court will uphold the ruling unless it finds

that the ruling was clearly erroneous. State v. Pope, 239

Neb. 1009, 480 N.W.2d 169 (1992); State v. Patterson, 237

Neb. 198, 465 N.W.2d 743 (1991); State v. Walker, 236 Neb.

155, 459 N.W.2d 527 (1990).

Childs was stopped by an Omaha police officer at

2:30 a.m. on October 16, 1990. The officer stopped Childs

to verify the validity of In Transit stickers posted on the

vehicle’s windows. The officer could only read the words

“In Transit” on the sticker prior to stopping the car. After

asking Childs for a bill of sale and registration, he noted

that Childs was exhibiting symptoms of intoxication.

Childs was requested to perform field sobriety tests,

which he failed, and the officer arrested him for driving

while under the influence of alcohol (DWI).

Childs filed a motion to suppress evidence relating to

the DWI, which was granted by the Douglas County

Court. The State then dismissed the action in the county

court, pursuant to § 29-827, and refiled in the Douglas

County District Court. Childs filed another motion to

suppress, which was overruled on February 6, 1991, and

the case went to trial. Childs timely objected at trial to the

district court’s denial of the suppression motion and sub-

sequently perfected this appeal.

Childs presents essentially two issues on appeal.

First, Childs contends that the vehicle stop to check the

validity of the In Transit stickers violated his rights under

20a

the Fourth Amendment to be free from unreasonable

search and seizure. Second, Childs contends that the pro-

cedure utilized by the State, pursuant to § 29-827, of filing

a complaint in the district court after an adverse ruling

on a motion to suppress in a county court constitutes a

denial of Childs’ due process rights.

SEARCH AND SEIZURE

The Nebraska Legislature requires that a motor vehi-

cle operated on the highways in Nebraska must be regis-

tered. Neb. Rev. Stat. § 60-302 (Reissue 1988). Any person

who operates a vehicle which has not been registered is

subject to penalty. Neb. Rev. Stat. § 60-302.03 (Reissue

1988). At the time of this incident a person who pur-

chased a motor vehicle was permitted to drive the vehicle

without registration for 15 days, provided an In Transit

decal was displayed on the front and rear windows of the

vehicle. Neb. Rev. Stat. § 60-320(3)(b) (Reissue 1988).

Upon demand of proper authorities, there shall

be presented by the person in charge of such

motor vehicle or trailer, for examination, a duly

executed bill of sale therefor, a certificate of title,

or other satisfactory evidence of the right of

possession by such person of such motor vehicle

or trailer.

Id.

Additionally, the statute stated that “[i]t shall be the

duty of all law enforcement officers to arrest and pros-

ecute all violators” of the above-cited provisions.

(Emphasis supplied.) § 60-320(5).

a

2la

The Nebraska Supreme Court addressed the issue of

enforcing the state’s licensing laws in State v. Holmberg,

194 Neb. 337, 231 N.W.2d 672 (1975). In Holmberg a

. Nebraska trooper stopped the defendant’s vehicle for the

purpose of checking his operator’s license, pursuant to

Neb. Rev. Stat. § 60-435 (Reissue 1974). However, the

court held that the statute, which authorized random

stops of motorists, was not unconstitutional; that stop-

ping the vehicle was the only practical method of enforc-

ing the law; and that the inconvenience to the motorist

was slight compared to the benefits derived to the state.

Id. The court added that if facts indicated the stop was a

pretext to search for some evidence of some possible

crime, the stop would be arbitrary and unreasonable. Id.

Since Holmberg, the U.S. Supreme Court has held that

stopping an automobile and detaining its occupants con-

stitutes a “seizure” within the meaning of the Fourth

Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct.

1391, 59 L. Ed. 2d 660 (1979). Unless an officer has proba-

ble cause or some other “substantial and objective stan-

dard or rule to govern the exercise of discretior” the stop

will be a violation of the Fourth Amendment. 440 U.S. at

661. In Prouse the officer had arbitrarily stopped the

motorist because he had no other calls. His stop was not

based on any suspicion that the motorist was violating

the law. Neither was he “acting pursuant to any stan-

dards, guidelines, or procedures pertaining to document

spot checks, promulgated by either his department or the

State Attorney General.” 440 U.S. at 650. The Supreme

Court also stated that it did not appear that “a stop of a

Delaware-registered vehicle is necessary in order to

22a

ascertain compliance with the State’s registration require-

ments. ... ” 440 U.S. at 660.

In contrast to Prouse, in the case at bar, Childs was

stopped because he had In Transit stickers on his win-

dows. The officer’s stop was regulated and required by

§ 60-320. The officer testified that, unlike checking for

valid license plates, the only way to determine if the

registration is current in a newly purchased vehicle is to

stop the vehicle. Pursuant to the statute these random

stops may only be directed at vehicles which carry In

Transit stickers. The stops shall only be made for the first

15 days of vehicle ownership, and the officer must check

the bill of sale and certificate of title. This type of stop is

not the “standardless and unconstrained” governmental

discretionary evil about which the U.S. Supreme Court

was concerned in Prouse. 440 U.S. at 661.

Although the Fourth Amendment is implicated in

stopping a vehicle, the type of stop authorized by the

statute in the case at bar “invoives only a brief detention

of the travelers during which ‘ “[aJll that is required of

the vehicle’s occupants is a response to a brief question or

two and possibly the production of a document....”’”

(Citation omitted.) United States v. Martinez-Fuerte, 428

U.S. 543, 558, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). In

Martinez-Fuerte the Supreme Court held that a Border

Patrol’s stopping of vehicles at permanent check points

on major highways to question occupants concerning

alien status was consistent with the Fourth Amendment.

The Supreme Court weighed the minimal intrusion upon

a motorist’s privacy interest in his car against the public

interest in curbing the flow of illegal aliens. It reiterated

its concern that roving patrol stops were intolerable

23a

because they would subject lawful motorists to “ ‘unlim-

ited interference with their use of the highways, solely at

the discretion of Border Patrol officers....’” 428 US. at

559. The fixed checkpoints were acceptable because the

interference with the legitimate traffic was minimal and

officers who were not in the field determined the location

of the checkpoints, thus avoiding the possibility of discre-

tionary abuse by field officers.

The Nebraska statute does not grant the police

“unlimited interference with the use of the highways,”

id., merely a 15-day window where the motorist may be

stopped, § 60-320(3)(b). Lastly, the motorist, recognizing

that the registration date on the In Transit stickers cannot

be read unless the driver is stopped, is essentially on

notice, and therefore the driver’s concern or fright at

being stopped is appreciably less. This court agrees with

the trial court that based on the record in this case, the

stop was neither arbitrary, oppressive, nor an indiscrimi-

nate abuse of discretion and is therefore consistent with

the Fourth Amendment. The court notes that this case is

controlled by the 15-day grace period of § 60-320(3)(b)

(Reissue 1988) which has since been superseded by

§ 60-320(3)(b) (Supp. 1991), which provides for a 30-day

grace period. The court expresses no view on the appro-

priateness of a search under § 60-320(3)(b) (Supp. 1991).

PROCEDURAL DUE PROCESS

Childs also asserts that his due process rights were

violated when the State refiled the complaint in district

court after an adverse ruling on a motion to suppress in

the county court.

24a

Section 29-827 states as follows:

Where motions to suppress .. . are made in

courts inferior to the district court in cases

involving violations of state laws, the county

attorney may give notice to such court that the

property in question will be further required as

evidence, may then dismiss the action in such

court and refile the complaint in the district

court.

The Nebraska Supreme Court reviewed this statute

in State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988). In Dail

the defendant filed a motion to suppress which the

county court sustained. The State then moved for a dis-

missal pursuant to § 29-827. The county court dismissed

the complaint without prejudice and ordered any prop-

erty in evidence to be transferred to the district court. The

Nebraska Supreme Court held that jeopardy attaches

when a judge begins to hear evidence as to the guilt of

the defendant and that in disposing of a pretrial motion,

jeopardy does not attach. Id. See, also, State v. Chaniley,

223 Neb. 614, 391 N.W.2d 99 (1986). The facts in Dail are

essentially the same as in the case at bar. Accordingly, we

find that the refiling of the case in district court does not

violate defendant’s due process rights.

AFFIRMED.

25a

APPENDIX C

IN THE DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

STATE OF NEBRASKA, _ ) DOC 128 PAGE 163

Plaintiff, MOTION TO SUPPRESS

VS. ) (Filed Jan. 29, 1991)

STEVEN W. CHILDS, )

Defendant. )

Comes the Defendant and moves the court to sup-

press the evidence obtained by Plaintiff in the above

encaptioned case based on the denial of Defendant’s

Fourth Amendment right to reasonable search and sei-

zure by the Plaintiff since the arresting officers stopped

Defendant with neither probable cause that a crime was

being committed or about to be committed, nor did the

officers have any other reasonable excuse for stopping

Defendant.

Wherefore Defendant prays the court to suppress all

evidence obtained by Plaintiff subsequent to the unlawful

stop by Plaintiff.

Dated this 29 Day of January, 1991.

Signed: /s/ David W. Childs

David W. Childs

Attorney for Defendant

#17558

3422 N. 93 St. #3

Omaha, NE 68134

571-3268

26a

APPENDIX D

ASSIGNMENTS OF ERROR

1.) The trial court erred in refusing the Motion to

Suppress for the following reasons:

a. The State of Nebraska presented no evi-

dence that the seizure of the Defendant was

based on specific, objective facts indicating the

Defendant, in particular, required seizure.

b. The State of Nebraska presented no evi-

dence that the seizure of the Defendant was

based on a larger plan, such as a roadblock, or a

plan which otherwise entailed neutral limita-

tions on the conduct of the police officer.

c. The State of Nebraska presented no evi-

dence that the officer had any reasonable suspi-

cion, based on objective facts, that the

Defendant was involved in any criminal activity.

d. The trial court’s statement that this sort

of search and seizure is the least intrusive

method of enforcing the registration laws runs

counter to the Supreme Court’s express will that

random stopping to enforce registration laws is

impermissible under the Fourth Amendment.