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State v. Biggerstaff12/18/2001
(not designated for permanent publication)
Appeal from the District Court for Dodge County: F.A. Gossett III, Judge. Affirmed.
INTRODUCTION
The State of Nebraska appeals the order of the Dodge County District Court granting Janet Biggerstaff's motion to suppress evidence. This single-judge review is pursuant to Neb. Rev. Stat. §§ 29-116 and 29-824 (Cum. Supp. 2000).
STATEMENT OF FACTS
On February 6, 2000, Lee Lozo, who was employed by the city of Scribner, Nebraska, conducted an investigation of Biggerstaff concerning driving under the influence of alcohol, which investigation concluded in Biggerstaff's arrest for that offense. Biggerstaff was given breath tests, but she gave a deficient sample.
On April 28, 2000, an information was filed in Dodge County District Court charging Biggerstaff with fourth-offense driving while intoxicated and with refusal to submit to a chemical test. On February 20, 2001, Biggerstaff filed a motion to suppress "any and all evidence of a stop, arrest, request for breath test and results of any such tests, as well as any statements of [Biggerstaff], observations of any law enforcement personnel either at the scene of the stop or thereafter, including the booking process." A hearing on this motion was held on July 6.
At the suppression hearing, Lozo testified that in October 1999, he was hired by the Scribner chief of police, LeeAnn Schlueter, as a reserve police officer and that he was employed by the city of Scribner as a reserve police officer preceding and following the arrest of Biggerstaff on February 6, 2000. However, Dennis W. Baumert, the mayor of Scribner since 1984, testified that the Scribner City Council has never passed any ordinances or resolutions to establish a reserve police officer force, although on September 27, 1999, the Scribner City Council approved a motion authorizing Mayor Baumert to "hire and appoint LeeAnn Schlueter as Police Chief also giving her the authority to hire whatever additional help she needed." Chief Schlueter testified that she hired Lozo as a reserve police officer, and Mayor Baumert admitted that Chief Schlueter hired Lozo.
On July 30, 2001, the district court filed an order suppressing all evidence after Lozo's stop of Biggerstaff's vehicle, including all statements allegedly made by Biggerstaff. Specifically, the court found that neither was Lozo appointed as a police officer for the city of Scribner by Mayor Baumert nor was any appointment approved by the city council as required by Neb. Rev. Stat. § 17-107 (Reissue 1997). Thus, the court found that Lozo was not a police officer at the time of his encounter with Biggerstaff, that Lozo did not have arrest powers pursuant to Neb. Rev. Stat. § 17-118 (Reissue 1997), and that Lozo could not avail himself of the citizen's arrest powers under Neb. Rev. Stat. § 29-402 (Reissue 1995) because he had no reason to believe Biggerstaff was guilty of a petit larceny or a felony. Further, the court found that since Lozo was not a peace officer duly authorized to make arrests, he was also without authority to request or conduct the procedures and testing set out in Neb. Rev. Stat. § 60-6,197 (Supp. 1999). The State has timely filed an appeal to this court.
ASSIGNMENT OF ERROR
The State's sole assigned error on appeal is that the district court erred in granting Biggerstaff's motion to suppress evidence.
STANDARD OF REVIEW
A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its find
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