- 496 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

State of Nebraska, appellee, v. 

Brian A. McCrickert, appellant.

___ N.W.2d ___

Filed February 7, 2017. No. A-15-1161.

1. 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 Fourth Amendment 

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

2. Investigative Stops: Motor Vehicles: Probable Cause. Traffic violations, no matter how minor, create probable cause to stop the driver of 

a vehicle.

3. Constitutional Law: Search and Seizure: Motor Vehicles. In determining whether the government’s intrusion into a motorist’s Fourth 

Amendment interests was reasonable, the question is not whether the 

officer issued a citation for a traffic violation or whether the State ultimately proved that violation.

4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: 

Probable Cause. An officer’s stop of a vehicle is objectively reasonable 

when the officer has probable cause to believe that a traffic violation 

has occurred.

5. Probable Cause: Words and Phrases. Probable cause is a flexible, 

commonsense standard that depends on the totality of the circumstances.

6. Probable Cause: Police Officers and Sheriffs. Probable cause is 

not defeated because an officer incorrectly believes that a crime has 

been or is being committed. But implicit in the probable cause standard is the requirement that a law enforcement officer’s mistakes be 

reasonable.

Nebraska Supreme Court Online Library

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

02/07/2017 09:08 AM CST
- 497 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

7. Probable Cause: Appeal and Error. An appellate court determines 

whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

Appeal from the District Court for Seward County: James C. 

Stecker, Judge. Affirmed.

William J. O’Brien for appellant.

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

for appellee.

Moore, Chief Judge, and Pirtle, Judge, and McCormack, 

Retired Justice.

Pirtle, Judge.

INTRODUCTION

Brian A. McCrickert appeals from his conviction for possession of marijuana, more than 1 pound, a Class IV felony. 

He asserts the evidence obtained during a traffic stop should 

have been suppressed because there was no probable cause to 

initiate the stop. For the reasons that follow, we affirm.

BACKGROUND

On December 4, 2013, Sgt. Michael Vance of the Seward 

County sheriff’s office was on duty and conducting traffic 

control on Interstate 80. At approximately 7 p.m., Vance 

observed a black vehicle traveling eastbound in the left-hand 

lane, also known as the passing lane, traveling at a slower 

speed. He observed two other vehicles using the “slow lane” 

to pass the vehicle on the right. Vance activated his patrol 

vehicle’s radar and determined the vehicle in the left-hand 

lane was traveling at 66 miles per hour in a 75-mile-perhour zone.

Vance pulled up near the vehicle to let the driver know that 

he was there and activated his patrol vehicle’s in-car camera. 

Then Vance backed off so the driver could change lanes, but 
- 498 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

the driver did not do so. Vance testified that he would have 

moved on if the vehicle had moved into the right-hand lane. 

At that point, Vance pulled into the left-hand lane behind the 

vehicle and activated his patrol vehicle’s emergency lights to 

conduct a traffic stop. Vance testified that he made the decision 

to stop the vehicle because it was in violation of the Nebraska 

Rules of the Road. He testified that even though the vehicle 

was traveling under the speed limit, it was not a dangerous 

speed. The driver was not driving below the minimum speed 

allowed, nor above the maximum speed allowed. Vance stated 

that drivers in the inside lane are supposed to maintain the 

speed limit, because “[i]f you are causing cars to pass you in 

the right lane, it’s called impeding traffic.”

There was one occupant in the vehicle, and his driver’s 

license indicated he was McCrickert. Vance issued McCrickert 

a warning for a traffic infraction. Vance searched the passenger compartment of the vehicle with McCrickert’s consent and 

found approximately 3 pounds of marijuana in the trunk.

McCrickert filed a motion to suppress the evidence citing 

numerous grounds, including the assertion that the traffic stop 

was unconstitutional. Vance testified at the suppression hearing, and a DVD of the video captured by the in-car camera was 

admitted as an exhibit. The video shows a white van approaching McCrickert’s vehicle in the left lane and using the right 

lane to pass.

The district court issued a “Memorandum Opinion” overruling McCrickert’s motion to suppress on December 3, 2014. 

The court noted Vance’s testimony that McCrickert violated 

Neb. Rev. Stat. § 60-6,131(2) (Reissue 2010) for failing to 

drive on the right half of the roadway and that the video 

confirms McCrickert was driving in the left lane and was 

not passing while he was driving in the left lane. The court 

stated that a traffic violation, no matter how minor, creates 

probable cause to stop the driver, and it concluded the traffic 

stop of McCrickert’s vehicle was valid and not a violation of 

his rights.
- 499 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

On December 9, 2014, McCrickert filed a motion to 

reconsider urging the court to reconsider the findings in the 

order issued on December 3. The court granted McCrickert’s 

motion to reconsider, but issued a memorandum opinion on 

December 17, concluding that the stop was valid and not a 

violation of McCrickert’s rights.

On March 31, 2015, the parties agreed to a stipulated bench 

trial on the allegations in the amended information. The court 

read McCrickert his rights, and McCrickert indicated that he 

understood them. The court found that McCrickert knowingly, 

voluntarily, and intelligently waived his rights to a preliminary hearing and to a jury trial. The defense requested that 

the court reconsider the motion to suppress and the motion in 

limine, and it was overruled.

The court found McCrickert guilty of count I of the amended 

information: possession of marijuana, more than 1 pound, a 

Class IV felony. On November 16, 2015, McCrickert was sentenced to 28 days’ imprisonment and was given credit for the 

28 days he had served. McCrickert was also ordered to pay a 

$5,000 fine. McCrickert timely appealed.

ASSIGNMENT OF ERROR

McCrickert asserts the evidence obtained during the traffic 

stop should have been suppressed because the State failed to 

meet its burden to show there was probable cause or reasonable suspicion to initiate the stop.

STANDARD OF REVIEW

[1] 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 Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. State v. Rolenc, ante p. 282, 885 N.W.2d 

568 (2016).
- 500 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

ANALYSIS

McCrickert asserts there was no probable cause or reasonable suspicion for Vance to initiate the traffic stop which led to 

the discovery of marijuana in his vehicle; thus, he argues the 

evidence should have been suppressed.

[2-4] Traffic violations, no matter how minor, create probable cause to stop the driver of a vehicle. State v. Prescott, 280 

Neb. 96, 784 N.W.2d 873 (2010). See State v. Sanders, 289 

Neb. 335, 855 N.W.2d 350 (2014). In determining whether the 

government’s intrusion into a motorist’s Fourth Amendment 

interests was reasonable, the question is not whether the officer 

issued a citation for a traffic violation or whether the State ultimately proved that violation. State v. Prescott, supra. Instead, 

an officer’s stop of a vehicle is objectively reasonable when the 

officer has probable cause to believe that a traffic violation has 

occurred. Id.

Vance testified that he pulled the vehicle over because it 

was committing a traffic infraction. Vance testified that he 

stopped McCrickert for “impeding traffic,” based upon his 

visual observation that McCrickert’s vehicle was traveling in 

the left-hand lane, at a speed slower than the speed limit, and 

that as a result, other vehicles were forced to pass the vehicle 

on the right-hand side.

McCrickert challenges the use of § 60-6,131 to determine 

that there was probable cause to justify the traffic stop in 

this case. He asserts § 60-6,131(1) is inapplicable because 

it applies to “[divided] highways that are not divided into 

separate roadways, as the Interstate is.” Reply brief for appellant at 7. He refers to State v. Brouillette, 265 Neb. 214, 

655 N.W.2d 876 (2014), in which the Nebraska Supreme 

Court determined that, because the collision occurred on a 

four-lane divided highway, a jury instruction based on Neb. 

Rev. Stat. § 60-6,141 (Reissue 2010) rather than § 60-6,131 

was appropriate.

He also asserts that the State relied on § 60-6,131(2) to 

justify the stop, which would require proof McCrickert was 
- 501 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

driving at “less than the normal speed of traffic,” and that the 

State did not meet this burden. Therefore, he asserts there was 

no legal basis for the traffic stop.

Section 60-6,131 requires vehicles to be driven on the right 

side of the roadway except under certain circumstances; specifically, subsection (2) states:

Upon all roadways, any vehicle proceeding at less than 

the normal speed of traffic at the time and place and 

under the conditions then existing shall be driven in the 

right-hand lane then available for traffic, or as close as 

practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle 

proceeding in the same direction or when preparing 

for a left turn at an intersection or into a private road 

or driveway.

In U.S. v. Guevara, 731 F.3d 824 (8th Cir. 2013), the U.S. 

Court of Appeals for the Eighth Circuit considered a factual situation similar to this case and applied § 60-6,131. In 

Guevara, the defendant was observed to be “driving in the left 

lane and failing to move over to the right lane for faster moving cars.” 731 F.3d at 828. The Eighth Circuit determined that 

there was probable cause to initiate a traffic stop for improperly driving in the left lane of the Interstate. As noted by the 

district court for Seward County in the case at hand, U.S. v. 

Guevara, supra, is not controlling, but it is instructive in that 

the Eighth Circuit found the same driving which is the subject 

of this case to constitute probable cause, and it was sufficient 

to justify a stop of that defendant’s vehicle.

[5,6] Even if § 60-6,131 does not, in fact, apply to incidents occurring on divided roadways, such as the Interstate, 

Vance still had probable cause to initiate the traffic stop of 

McCrickert’s vehicle. In cases involving probable cause to 

support a warrantless arrest, the Nebraska Supreme Court has 

stated that probable cause is a flexible, commonsense standard that depends on the totality of the circumstances. State v. 

Matit, 288 Neb. 163, 846 N.W.2d 232 (2014); State v. McCave, 
- 502 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

282 Neb. 500, 805 N.W.2d 290 (2011). Probable cause is not 

defeated because an officer incorrectly believes that a crime 

has been or is being committed. Id. But implicit in the probable 

cause standard is the requirement that a law enforcement officer’s mistakes be reasonable. Id. Given the apparent conflict 

between Brouillette and Guevara, any potential mistake made 

by Vance with regard to the applicability of § 60-6,131 would 

be reasonable under these circumstances.

The Nebraska statutes also include a provision which states: 

“No person shall drive a motor vehicle at such a slow speed 

as to impede the normal and reasonable movement of traffic 

except when reduced speed is necessary for safe operation 

or in compliance with law.” Neb. Rev. Stat. § 60-6,193(1) 

(Reissue 2010).

[7] It is not clear which statute Vance relied upon in initiating the stop of McCrickert’s vehicle. However, the Nebraska 

Supreme Court has stated that an appellate court determines 

whether probable cause existed under an objective standard of 

reasonableness, given the known facts and circumstances. State 

v. McCave, supra.

In this case, the evidence shows that Vance objectively 

believed that a traffic violation had occurred, because he 

observed McCrickert’s vehicle to be impeding the flow of traffic on the roadway. Specifically, Vance observed McCrickert’s 

vehicle driving in the left-hand lane, while other vehicles were 

forced to pass McCrickert’s vehicle using the right-hand lane. 

The video from Vance’s in-car camera shows at least one vehicle, a white van, used the right-hand lane to pass McCrickert’s 

vehicle. Vance’s report and testimony indicate McCrickert was 

traveling 66 miles per hour in a 75-mile-per-hour zone. Vance 

initiated a traffic stop and notified McCrickert that he would 

receive a warning for impeding traffic. The evidence shows 

that Vance had probable cause to believe that a traffic violation 

had occurred, and this was sufficient to justify the initial stop 

of McCrickert’s vehicle.
- 503 -

Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

STATE v. McCRICKERT

Cite as 24 Neb. App. 496

Thus, the stop was valid and not a violation of McCrickert’s 

rights. The district court did not err in overruling McCrickert’s 

motions to suppress which were based on the allegation that 

the stop was initiated without probable cause.

CONCLUSION

A traffic violation, no matter how minor, creates probable 

cause to stop the driver; thus, the traffic stop of McCrickert’s 

vehicle was valid and not a violation of his constitutional 

rights. For the reasons stated above, we affirm the decision of 

the district court for Seward County in its entirety.

Affirmed.