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State v. Borth5/6/2003
(Not Designated for Permanent Publication)
INTRODUCTION
Gordon R. Borth appeals from his conviction and sentence for fourth-offense driving under the influence . On appeal, Borth contends that the Madison County District Court erred in overruling his motion to suppress, finding that his three prior driving under the influence convictions were suitable for sentencing enhancement purposes and overruling his objections to all evidence obtained after the stop and detention of his vehicle. For the reasons stated herein, we affirm.
BACKGROUND
On April 24, 2002, an information was filed in the Madison County District Court charging Borth with driving under the influence on or about February 22, his fourth offense, to which charge Borth entered a plea of not guilty. Borth then filed a motion to suppress any and all evidence obtained as the result of the stop of his vehicle alleging that the "initial stop and detention of [Borth's] vehicle was without reasonable suspicion" he had committed or was committing a crime, that "the initial stop and detention of [Borth] was unlawful," that the "stop and arrest" was in violation of Borth's constitutional rights, and that the arrest was made without a valid warrant. Borth's motion came on for hearing on April 30.
The evidence adduced at the suppression hearing established that David Ramsey, a probationary Nebraska State Patrol trooper, underwent basic training from August 2001 to January 2002 and that at the time of the hearing, he was still engaged in field training in which he accompanies another officer. Trooper Ramsey testified that while in basic training, he learned that some of the indicators that a person is driving under the influence of alcohol are driving 10 or more miles per hour under the speed limit, hunching over the steering wheel, weaving within or outside the lanes, making slow and wide turns, and "hitting the corner when turning." Since beginning his probationary officer training, Trooper Ramsey has made approximately 14 stops and arrests specifically for driving under the influence and approximately 11 other arrests.
Trooper Ramsey testified that he and his training partner, Nebraska State Patrol Trooper Mark Zach, were working on the night of February 22, 2002, and were riding in a marked patrol car. Around 1:30 a.m., the troopers were proceeding west on Pasewalk Avenue in Norfolk, Nebraska, when they came upon a gray Chevrolet Blazer proceeding north in the "lane closest to the center lane" on First Street which is a known problem area for drunk driving. As they drove by the Blazer, they observed that the driver was hunched over with his face approximately 4 inches from the steering wheel, "almost as if he was hugging it." The troopers began to follow the vehicle and observed that the driver was traveling approximately 10 miles per hour under the speed limit. The driver of the Blazer took a circuitous route before eventually turning into a grocery store parking lot. Although the troopers observed that the Blazer's brake lights were functioning en route to the grocery store, they observed that the left brake light ceased functioning when the driver entered the parking lot and parked in a parking space. The troopers then made contact with Borth, the driver of the Blazer. Trooper Ramsey testified that he would have made contact with Borth regardless of whether the brake light had ceased functioning. In the instant case, we note that the troopers did not technically "stop" Borth's vehicle. They simply followed Borth and made contact with him only after Borth parked his vehicle in a grocery store parking lot. However, for purposes of this discussion, we will refer to the troopers' contact w
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