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State v. Koncaba2/10/2004
INTRODUCTION
Anton H. Koncaba was convicted of driving under the influence , second offense, in the county court for Scotts Bluff County, Nebraska, and sentenced to serve 90 days in jail. Koncaba appealed, and the Scotts Bluff County District Court affirmed. On further appeal to this court, Koncaba alleges that his conviction should have been reversed because evidence of his intoxication had been obtained as a result of an illegal search and seizure in connection with a vehicle check stop conducted by the Nebraska State Patrol. For the reasons set forth herein, we affirm.
BACKGROUND
On September 7, 2001, the State Patrol conducted a vehicle check stop on Scotts Bluff County Road 34 located north of McGrew, Nebraska, in Scotts Bluff County. The check stop had been planned by Sgt. James Brady on August 18. The "Selective Enforcement / Vehicle Check Form" prepared by Brady set forth the troop area ("E") and sergeant area ("1") where the stop was to take place; the badge numbers of the officers who were to perform the stop ("283" and "300," identified by Brady as those of Troopers Jeff Wallace and Manuel Jimenez); the stop's date (Friday, September 7), start time (4 p.m.), end time (6 p.m.), and location ("N. McGrew"); the roadway type ("CR," identified by Brady as county road); and the stop's causative factor ("10-52," identified by Brady as a vehicle check). The form was initialed as approved by Brady on August 18. Brady testified that the purpose of the check stop was to check drivers for licensing and vehicles for registration and equipment violations. Brady testified that the check stop plan was implemented according to the guidelines set forth in a written policy of the State Patrol, which guidelines specify how vehicle check stops are to be conducted. According to Brady, troopers have a limited amount of discretion in following the guidelines.
On the day of the check stop, Wallace arrived at the check stop location shortly before 4 p.m.; however, Jimenez did not arrive until about 4:20 or 4:30 p.m., as he had misread his work schedule. Thereafter, the troopers immediately began to conduct the check stop by stopping all vehicles. Wallace worked the northbound traffic, and Jimenez worked the southbound traffic.
Koncaba was driving northbound on county Road 34 north of McGrew in a light-colored pickup truck when he approached the vehicle check stop. The record reflects that Koncaba passed Wallace's side of the check stop and that Wallace radioed Jimenez and told him that the light-colored pickup had passed him and that he had not checked it. Jimenez testified that he was standing in the middle of the road and had motioned with his hand for the pickup to stop, but that it continued to drive around him. Jimenez testified that he then turned around and yelled to Koncaba to stop, after which time Koncaba hit the brakes and stopped beside the road. Jimenez estimated that the pickup traveled between 5 and 15 feet before it stopped, and he testified that he had considered Koncaba's actions suspicious. Jimenez stated that he asked Koncaba (whom he had not yet identified) why he did not stop earlier and that Koncaba responded that he was not sure. Jimenez related that he proceeded to ask Koncaba for his driver's license, registration, and proof of insurance and then continued with a routine vehicle check that revealed no violations. Jimenez described Koncaba as having been calm, but testified that he had observed that Koncaba's eyes were a "little on the glossy side" and also had detected an odor of alcohol about Koncaba. Jimenez testified that he inquired of Koncaba whether he had been drinking and that Koncaba responded that he had just had supper at a local ea
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