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State v. Hisey - 15 Neb. App. 100, 723 N.W.2d 99 (2006)


The concept of probable cause is not readily, or even usefully, reduced to a neat set of legal rules. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant. Probable cause is determined by an objective standard of reasonableness: whether the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found.


On May 1, 2004, Officer Sharon Lewis of the Kimball Police Department arrested defendant Richard Hisey for driving with a suspended license, driving under the influence, and driving with an open container in his vehicle. At the time of the arrest, Lewis was on duty, in uniform, and on patrol in a marked patrol car. Prior to the arrest, Lewis observed Hisey drive his pickup truck by her patrol car. She watched as Hisey stopped his vehicle in front of his house and exited the vehicle. Lewis then drove her patrol car toward Hisey's parked vehicle because she was under the impression that Hisey's license was still impounded. Her belief was also confirmed by a dispatcher based on an information provided by Nebraska Department of Motor Vehicle's (DMV) records. Lewis later testified that at the time of the arrest, she had this belief because at an earlier date, she had attended a trial at which Hisey had been convicted of driving under the influence of alcohol and refusal to submit to an alcohol test and his license had been impounded. After Hisey's arrest, but before disposition of the charges against him, it was discovered that his license was not under impoundment at the time of arrest. On May 24, 2004, in Nebraska county court, Hisey was charged with, inter alia, driving under the influence of alcoholic liquor, second offense, in violation of Neb. Rev. Stat. § 60-6,196(1)(a)(c) (Supp. 2003), and driving with an open container of alcohol in his vehicle, in violation of Neb. Rev. Stat. § 60-6,211.08(2) (Reissue 2004). Hisey filed a motion to suppress all evidence obtained from the stop, search, and arrest. On Sept. 14, the county court overruled Hisey's motion to suppress, opining that Lewis' conduct before and during the arrest was not unlawful. After trial, a jury found Hisey guilty of driving under the influence of alcoholic liquor, and the court found him guilty of driving with an open container of alcohol in his vehicle. On appeal, Hisey argued that his Fourth Amendment rights were violated and that evidence discovered as a result of the stop and detention should have been excluded from evidence at trial because the stop was illegal. The district court found that the initial stop violated the Fourth Amendment of the United States Constitution, and thus, the information obtained from it should be suppressed. Accordingly, the district court vacated the convictions and sentences. The State appealed.


Should the evidence in question be suppressed because it is a result of an unlawful arrest?




The appellate court affirmed the district's court decision. The court held that while the initial stop of Hisey was not unlawful, the subsequent arrest of Hisey was made without probable cause and was unlawful. The court opined that the evidence obtained during Hisey's arrest should be suppressed. According to the court, warrantless searches were generally unreasonable under the Fourth Amendment, subject to a limited number of specific exceptions. The warrantless search exceptions recognized by the Supreme Court of Nebraska included: (i) searches undertaken with consent or with probable cause; (ii) searches under exigent circumstances; (iii) inventory searches; (iv) searches of evidence in plain view; and (v) searches incident to a valid arrest. The State had the burden to prove that one of these circumstances was present during a warrantless search. In the case at bar, the court noted that at the time of the arrest, neither the officer nor the dispatcher possessed any true fact that supported probable cause for the stop. The "fact" forming the basis for probable cause—that Hisey's license was under impoundment—was false. Therefore, the stop was not based on any reasonably trustworthy information, and there was no probable cause for the arrest.

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