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State v. Biggerstaff12/18/2001
ings of fact are clearly erroneous. State v. Merrill, 252 Neb. 510, 563 N.W.2d 340 (1997); State v. Matthews, 8 Neb. App. 167, 590 N.W.2d 402 (1999); State v. Beeken, 7 Neb. App. 438, 585 N.W.2d 865 (1998).
In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.State v. Chitty, 253 Neb. 753, 571 N.W.2d 794 (1998); State v. Matthews, supra; State v. Beeken, supra.
Regarding questions of law, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
ANALYSIS
On appeal, the State contends that the district court erred in granting Biggerstaff's motion to suppress evidence. More specifically, the State's assigned error can be broken down into two assertions: (1) The district court erred in finding that Lozo had not received an appointment to be a police officer pursuant to § 17-107, and (2) even if there was not proper appointment pursuant to § 17-107, the exclusionary rule does not compel the exclusion of the evidence in the instant case.
Appointment as Police Officer.
First, I address the State's claim that the district court erred in finding that Lozo had not received an appointment to be a police officer pursuant to § 17-107. I specifically note that the State concedes Lozo did not qualify as a "reserve officer" because no reserve force was created in Scribner and that the State has not appealed the district court's finding that Lozo could not avail himself of the citizen's arrest powers granted pursuant to § 29-402 because he had no reason to believe that Biggerstaff was guilty of a petit larceny or a felony.
Section 17-107 provides, in part, that " he mayor, by and with the consent of the council, shall appoint such a number of regular police officers as may be necessary. All police officers appointed by the mayor and council shall be removable at any time by the mayor." Further, Neb. Rev. Stat. § 81-1414(2) (Reissue 1999) provides:
Any person who has not been awarded . . . a [training] certificate may receive an appointment conditioned on satisfactory completion of such training if he or she immediately applies for admission to the training center and enrolls in the next available basic training class. If such training is not completed within one year after the appointment, the person's employment shall not be renewed by appointment or otherwise and such person shall no longer be recognized as a law enforcement officer . . . .
The evidence is undisputed that Lozo was not appointed by Mayor Baumert and that Lozo's appointment was not conditioned on his undertaking or successful completion of any certification training. Thus, because no appointment occurred pursuant to § 17-107, this claim is without merit.
Applicability of Exclusionary Rule.
Next, I address the State's claim that the exclusionary rule does not compel the exclusion of evidence in the instant case.
The exclusionary rule was adopted to "'"effectuate the Fourth Amendment right of all citizens 'to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .'"'" City of Omaha v. Savard-Henson, 9 Neb. App. 561, 569, 615 N.W.2d 497, 504 (2000), quoting Grames v. Illinois State Police, 254 Ill. App. 3d 191, 625 N.E.2d 945, 192 Ill. Dec. 790 (1993).
Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment to the U.S. Cons
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