# Petition for Writ of Certiorari — Nebraska v. Childs

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2282%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 940

## Text

an 5 7
GD
No.

In The
. tiuprems ¢
Supreme Court of the United States; -¢ ; a

October Term, 1992
‘ anyr
APR O 1 19

¢ e
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
SPU Se ROE URES 052 Laces eae eae ii
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
SS 8) Sere rr ee ees ot eS Seay la
B. OPINION OF THE NEBRASKA COURT OF
ry -Y | Sena Inne peri em ee re ey ye 18a
\.. TRIN OO) SUP Peeks oh os en ee eee 25a

2... ASSRSNMGN GF ERM sche sc nace eee 26a

ili

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2282%3A1. Public record. Not legal advice.