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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. NIELSEN

Cite as 301 Neb. 88

State of Nebraska, appellee, v. 

Matthew W. Nielsen, appellant.

___ N.W.2d ___

Filed September 14, 2018. No. S-17-1033.

1. Appeal and Error. Where no timely statement of errors is filed in an 

appeal from a county court to a district court, appellate review is limited 

to plain error.

2. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate the Fourth Amendment 

protection is a question of law that an appellate court reviews independently of the trial court’s determination.

3. Constitutional Law: Courts: Search and Seizure: Police Officers 

and Sheriffs: Evidence. A court may decline to apply the exclusionary rule when evidence is obtained pursuant to an officer’s objective 

and reasonable reliance on a law that is not clearly unconstitutional at 

the time.

4. Appeal and Error. An appellate court does not consider errors which 

are argued but not assigned.

5. Search and Seizure: Proof. The State has the burden of showing that 

the good faith exception applies.

Appeal from the District Court for Lancaster County, Andrew

R. Jacobsen, Judge, on appeal thereto from the County Court 

for Lancaster County, Timothy C. Phillips, Judge. Judgment of 

District Court affirmed.

John S. Berry, of Berry Law Firm, for appellant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/09/2018 08:12 AM CST
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. NIELSEN

Cite as 301 Neb. 88

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Matthew W. Nielsen was convicted for driving under the 

influence, after having submitted to a pre-Birchfield blood 

draw.1 Based upon the exclusionary rule’s good faith exception, the county court denied Nielsen’s motion to suppress. 

On appeal, the district court affirmed. On appeal to this court, 

Nielsen contends that the exception does not apply and that 

the State failed to raise the issue in the county court. Because 

our holding in State v. Hoerle2 controls and because the State 

sufficiently raised the issue, the county court correctly denied 

the motion and the district court properly affirmed. Therefore, 

we also affirm.

BACKGROUND

Arrest

On December 17, 2015, a police officer conducted a traffic 

stop and arrested Nielsen under suspicion of drunk driving. 

Ultimately, the arresting officer took Nielsen to a hospital. 

There, he read the “Post Arrest Chemical Test Advisement 

Form” to Nielsen. Nielsen signed the form and agreed to a 

blood draw.

Motion to Suppress

Based upon the results of the blood test, the State charged 

Nielsen in the county court with driving under the influence. 

Nielsen moved to suppress evidence obtained from the traffic 

1 See Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 

2d 560 (2016).

2 State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017).
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. NIELSEN

Cite as 301 Neb. 88

stop and warrantless blood draw. There were other charges not 

pertinent to this appeal.

On his motion to suppress, Nielsen argued that the U.S. 

Supreme Court decision in Birchfield v. North Dakota3 should 

retroactively control, because the Court determined that warrantless blood tests are an unconstitutional search under the 

Fourth Amendment. According to the county court’s order 

disposing of the motion, the State responded that Birchfield

should not apply retroactively based upon the decision in Davis 

v. United States.

4

The county court determined that while the blood draw was 

not voluntarily given, retroactive application of Birchfield was 

inappropriate, because the officer “acted on a good faith-belief 

that his conduct in obtaining the blood [draw] was lawful.” 

Accordingly, the court denied the motion.

Remaining Procedural History

The county court bifurcated Nielsen’s trial. The driving 

under the influence charge was tried to a jury and the remaining charges to the bench. The jury found Nielsen guilty, and the 

court imposed a sentence.

Nielsen timely appealed to the district court. But he failed 

to submit a statement of errors, and that court reviewed only 

for plain error. It determined that the jury had sufficient 

evidence to convict and that the county court did not err in 

denying the motion to suppress. It affirmed the county court’s 

judgment.

ASSIGNMENTS OF ERROR

Nielsen assigns that (1) the district court erred in finding the good faith exception to the exclusionary rule applied 

and (2) the State failed to preserve the good faith exception 

for review.

3 Birchfield, supra note 1.

4 Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 

(2011).
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. NIELSEN

Cite as 301 Neb. 88

STANDARD OF REVIEW

[1] Where no timely statement of errors is filed in an appeal 

from a county court to a district court, appellate review is limited to plain error.5

[2] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger 

or violate the Fourth Amendment protection is a question of 

law that an appellate court reviews independently of the trial 

court’s determination.6

ANALYSIS

Good Faith Exception Application

to Birchfield

[3] Nielsen argues that the good faith exception should not 

be applied to pre-Birchfield cases, because consent was not 

voluntarily given. We settled this issue in Hoerle.

7

 A court 

may decline to apply the exclusionary rule when evidence is 

obtained pursuant to an officer’s objective and reasonable reliance on a law that is not clearly unconstitutional at the time.8

We reasoned, “Because the officer here acted in objectively 

reasonable reliance on a statute that had not been found unconstitutional at the time, excluding the results of [the defendant’s] 

blood test would not serve the purpose of the exclusionary 

rule.”9 We concluded that “the good faith exception applies to 

warrantless pre-Birchfield blood draws.”10

5 State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).

6 State v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018).

7 Hoerle, supra note 2.

8 Id.

9 Id. at 851, 901 N.W.2d at 334.

10 Id.
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. NIELSEN

Cite as 301 Neb. 88

The same conclusion applies here. Nielsen was arrested on 

December 17, 2015, and Birchfield was decided on June 23, 

2016. The county court applied the good faith exception to 

Nielsen’s pre-Birchfield blood draw. The district court found 

no plain error. Neither do we.

Asserting Good Faith Exception

Nielsen argues that in the county court, the State failed 

to assert the good faith exception. Thus, he contends, this 

court should not consider whether the exception applies. The 

State responds that it did raise good faith in the county court. 

Moreover, the State argues, Nielsen cited no authority precluding the State from asserting the exception on appeal.

But, as we have already implicitly recognized, the State did

raise the exception. The county court, in denying the motion, 

stated that “[i]n support of it[s] position [the State] cites Davis 

v. United States . . . .” The Davis Court held that “searches 

conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.”11 In 

doing so, the Davis Court expressly relied on the United States 

v. Leon12 good faith exception rationale. Because the State 

cited to Davis, it sufficiently raised the issue.

[4] Nielsen argues that at the suppression hearing, the arresting officer’s testimony on this point was on redirect examination that exceeded the scope of cross-examination. Thus, 

he argues, it cannot be used to show that the officer relied 

on the implied consent statute when he conducted the blood 

draw. But Nielsen did not object to the testimony. Nor did he 

raise the matter in the district court—he filed no statement of 

errors. And even in this court, his brief assigned no evidentiary 

error. An appellate court does not consider errors which are 

argued but not assigned.13 For a multiplicity of reasons, we do 

11 Davis, supra note 4, 564 U.S. at 232.

12 United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 

(1984).

13 State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. NIELSEN

Cite as 301 Neb. 88

not address Nielsen’s argument regarding allegedly improper 

redirect examination.

[5] Although we do not reach the State’s argument that 

raising good faith for the first time on appeal is sufficient, 

Nielsen’s contrary premise seems unconvincing. Our decision 

in State v. Tompkins14 declined to answer the precise question. 

We recognize that the State has the burden of showing that the 

good faith exception applies.15 In Tompkins, we stressed that 

an appellate court on its own motion cannot consider the good 

faith exception. In brief and at oral argument, except perhaps 

for a fleeting reference, the State did not challenge the holding of Tompkins. But we also said that “at the appellate level, 

the State has ample opportunity to raise the Leon good faith 

exception.”16 This would suggest that in order for an appellate court to consider the good faith exception, the State can 

raise it either at the trial court or on appeal. Here, the State 

presented the county court with case law expressly relying on 

a good faith exception. The citation directly spoke to the issue 

of good faith. Even if Nielsen’s premise was correct, no more 

was required. Once again, we find no plain error.

CONCLUSION

We conclude that the district court did not err in performing 

its review for plain error. There was no plain error in applying 

the good faith exception to warrantless pre-Birchfield blood 

draws or in determining that the State raised the good faith 

exception. We affirm the decision of the district court.

Affirmed.

14 State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 (2006).

15 See id. See, also, U.S. v. Diehl, 276 F.3d 32 (1st Cir. 2002); State v. 

Havatone, 241 Ariz. 506, 389 P.3d 1251 (2017); People v. Willis, 28 Cal. 4th 

22, 46 P.3d 898, 120 Cal. Rptr. 2d 105 (2002); People v. Gutierrez, 222 P.3d 

925 (Colo. 2009).

16 Tompkins, supra note 14, 272 Neb. at 552, 723 N.W.2d at 349.