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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

STATE V. TEMME

Cite as 32 Neb. App. 397

State of Nebraska, appellee, v. 

Timothy J. Temme, appellant.

___ N.W.2d ___

Filed November 14, 2023. No. A-22-918.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

5. Criminal Law: Courts: Appeal and Error. When deciding appeals 

from criminal convictions in county court, an appellate court applies the 

same standards of review that it applies to decide appeals from criminal 

convictions in district court.

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

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

to suppress, whether based on a claimed violation of the Fourth 

Amendment or on a statement’s alleged involuntariness, an appellate 

court applies a two-part standard of review. Regarding historical facts, 

the appellate court reviews the trial court’s findings for clear error. 

Whether those facts meet constitutional standards, however, is a question of law, which the appellate court reviews independently of the 

court’s determination.

7. Trial: Convictions: Evidence: Appeal and Error. An appellate court 

will sustain a conviction in a bench trial of a criminal case if the 

Nebraska Supreme Court Online Library

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

11/21/2023 10:09 AM CST
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properly admitted evidence, viewed and construed most favorably to 

the State, is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, evaluate explanations, or reweigh 

the evidence presented, which are within a fact finder’s province 

for disposition.

8. Constitutional Law: Search and Seizure. The Fourth Amendment 

guarantees the right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, as does 

article I, § 7, of the Nebraska Constitution.

9. Constitutional Law: Search and Seizure: Investigative Stops: Motor 

Vehicles. A traffic stop is a seizure for Fourth Amendment purposes, and 

therefore is accorded Fourth Amendment protections.

10. Constitutional Law: Investigative Stops: Motor Vehicles: Police 

Officers and Sheriffs. The Fourth Amendment permits brief investigative stops of vehicles based on reasonable suspicion when a law enforcement officer has a particularized and objective basis for suspecting the 

particular person stopped of criminal activity.

11. Police Officers and Sheriffs: Investigative Stops. One of the circumstances for evaluating whether reasonable suspicion exists to initiate a 

stop is the nature of the area and the time of day during which the suspicious activity occurred.

Appeal from the District Court for Lancaster County, Lori 

A. Maret, Judge, on appeal thereto from the County Court 

for Lancaster County, Joseph E. Dalton, Judge. Judgment of 

District Court affirmed.

Matthew K. Kosmicki for appellant.

Yohance L. Christie, Lincoln City Attorney, and Marcee A. 

Brownlee for appellee.

Bishop, Arterburn, and Welch, Judges.

Arterburn, Judge.

INTRODUCTION

After a stipulated bench trial in the county court, Timothy 

J. Temme was convicted of driving under the influence (second offense). Temme appealed his conviction to the district 

court, which affirmed. Temme now appeals to this court. On 
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STATE V. TEMME

Cite as 32 Neb. App. 397

appeal, Temme alleges that the district court erred in affirming the county court’s decision to overrule his motion to suppress and erred in finding there was sufficient evidence to 

support his conviction. For the reasons set forth herein, we 

affirm the decision of the district court that affirmed Temme’s 

county court conviction for driving under the influence (second offense).

BACKGROUND

On November 10, 2020, at approximately 11:30 p.m., 

Officer Shane Jensen with the Lincoln Police Department 

was working the night shift in the areas of the “Railyard” and 

“Haymarket” in Lincoln, Nebraska. A significant number of 

restaurants and bars are located in this area. While Jensen was 

patrolling in his cruiser, his attention was drawn to a vehicle 

parked in a diagonal parking stall on the northeast corner of 

Q Street. The vehicle’s brake lights “illuminate[d],” then turned 

off, then turned back on. Jensen thought this was “strange.” As 

he continued to patrol in the area, he drove by this vehicle at 

least three more times. Each time, Jensen observed the brake 

lights on the vehicle turn on and off. In addition, at one point, 

he observed that the vehicle had been turned on and was running, but later was turned off without ever having exited the 

parking stall. Based on his observations, Jensen believed that 

the driver might have been having some difficulty operating 

the vehicle.

Jensen parked his cruiser about a block to a block and 

a half away from the vehicle on Q Street, where he “regularly” parks to look for traffic violations. From this vantage 

point, Jensen could further observe the parked vehicle and 

its driver, who had now exited the vehicle. Approximately 

3 or 4 minutes after parking his cruiser on Q Street, Jensen 

observed the driver of the vehicle, whom he later identified as Temme, begin to walk toward his cruiser. Ultimately, 

Temme approached the cruiser and asked Jensen what he 

was doing. When Jensen responded by asking Temme if he 
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STATE V. TEMME

Cite as 32 Neb. App. 397

needed anything, Temme responded that he did not need any 

assistance. Temme then walked away, but did not return to 

his vehicle—instead standing outside of a nearby restaurant. 

Based on Temme’s behavior, Jensen believed that Temme was 

waiting for him to leave.

During Jensen’s brief conversation with Temme, he became 

suspicious that Temme was intoxicated. Specifically, Jensen 

noticed that Temme appeared to walk in a slow and unsteady 

fashion. When Temme approached the cruiser, he could not 

walk in a straight line. Jensen also observed that Temme had 

“noticeabl[y]” slurred speech. Temme did not get close enough 

to Jensen’s vehicle for Jensen to detect whether he smelled of 

alcohol. Jensen did note, however, that Temme was located 

in an area with a number of restaurants and bars. Jensen 

further noted that during his shifts working in that area, he 

would typically encounter people who had been drinking alcoholic beverages.

While Temme was still standing outside of his vehicle, 

Jensen drove away and continued his routine patrol of the area. 

When he returned to Q Street, he observed Temme to have 

returned to his vehicle and to be backing the vehicle out of 

the parking spot in order to proceed west on Q Street. Because 

Jensen suspected that Temme was impaired, he initiated a traffic stop “just after the vehicle had backed out” of the parking 

spot. Upon contacting Temme after the stop, Jensen was now 

able to detect a “strong” odor of alcohol coming from his 

person. Jensen asked Temme to perform multiple field sobriety tests, during which he showed impairment. Temme also 

admitted that he had consumed two alcoholic drinks in the half 

hour before he began driving. Ultimately, Temme was arrested. 

Subsequent testing of his breath revealed a result of .151 of a 

gram of alcohol per 210 liters of his breath.

On November 24, 2020, the State filed a complaint in 

the county court charging Temme with driving under the 

influence, second offense, contrary to Lincoln Mun. Code 

§ 10.16.030 (2017). Temme filed a motion to suppress, asking 
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STATE V. TEMME

Cite as 32 Neb. App. 397

the court to suppress all statements and evidence obtained as 

a result of the violation of his “constitutional rights as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments.” 

At the hearing on the motion, Temme argued that Jensen did 

not possess either the probable cause or the reasonable suspicion necessary to initiate the stop of his vehicle and that, as 

a result, all of the evidence obtained after the stop, including 

the field sobriety tests and the results of the breath test, should 

be suppressed.

During the hearing on Temme’s motion to suppress, Jensen 

testified regarding his observations and interactions with 

Temme prior to initiating the traffic stop on November 10, 

2020, and regarding the traffic stop itself. In addition, he 

testified regarding his extensive experience and training in 

identifying impaired drivers, including his participation in 

hundreds of driving under the influence investigations and 

his contact with intoxicated individuals on a daily basis as a 

patrol officer.

The county court overruled Temme’s motion to suppress. 

The court found that Jensen had reasonable suspicion that a 

crime was being committed at the time that he initiated the 

traffic stop. The court explained:

Upon review of the entire record, the Court finds 

that Officer Jensen had a reasonable suspicion based on 

articulable facts to believe that a crime had been committed and to briefly detain [Temme]. This was based 

on his observations of [Temme’s] brake lights going on 

and off while parked in a parking stall on a public street 

and his initial contact with [Temme] who was on foot 

when Officer Jensen observed [Temme] to have slurred 

speech, was walking slowly, and staggered as he walked 

away from their initial encounter. Officer Jensen believed 

[Temme] was intoxicated based on the behaviors that 

he observed.

Officer Jensen’s suspicion was confirmed when, as 

he approached [Temme] upon the stop, he observed 
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STATE V. TEMME

Cite as 32 Neb. App. 397

[Temme] to have a strong odor of alcohol coming from 

[his] person and [Temme] had red/watery/bloodshot eyes. 

[Temme] appeared unsteady on his feet, swaying as he 

stood still and had slurred speech. [Temme] admitted 

to consuming two drinks about half an hour prior to the 

stop and further, showed impairment on the [field sobriety tests]. The Court further finds that the officer had 

probable cause to arrest [Temme] for Driving Under the 

Influence of Alcohol.

A stipulated bench trial was held on June 15, 2021. The 

State offered various exhibits, depicting the circumstances 

surrounding the traffic stop and subsequent arrest of Temme. 

Temme renewed his motion to suppress, but did not offer any 

evidence. The court found Temme guilty of operating a motor 

vehicle while under the influence of alcohol in violation of the 

Lincoln Municipal Code. The court subsequently sentenced 

Temme to 18 months’ probation, which was suspended pending 

any appeal.

Temme timely appealed his conviction to the district court. 

In his statement of errors, he alleged, first, that the county 

court erred by overruling his motion to suppress and finding that the evidence supported that Jensen had a reasonable 

articulable suspicion to initiate a traffic stop and, second, that 

the county court erred by finding sufficient evidence to convict 

him of driving under the influence.

In an order entered on November 9, 2022, the district court 

affirmed Temme’s conviction. The court stated:

This court agrees with the [county] court, in that Officer 

Jensen had a reasonable suspicion based on articulable 

facts to conduct an[] investigatory stop of [Temme]. The 

Officer’s suspicion was confirmed upon further contact 

with [Temme]. As [Temme’s] sufficiency of the evidence 

[claim] rests upon the determination of the Motion to 

Suppress, it is the conclusion of the court that sufficient 

evidence was adduced to support the finding of guilty 

of Operating a Motor Vehicle while Under the Influence 
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Cite as 32 Neb. App. 397

of Alcohol. Therefore, the court finds that these assignments of error are without merit and concludes that the 

judgment of the County Court should be affirmed.

Temme now appeals to this court.

ASSIGNMENTS OF ERROR

Temme appeals to this court, alleging that the district court 

erred in (1) affirming the county court’s decision to overrule 

his motion to suppress and (2) finding sufficient evidence was 

presented in the county court to support his conviction for driving under the influence.

STANDARD OF REVIEW

[1-5] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, 

and its review is limited to an examination of the record for 

error or abuse of discretion. State v. Avey, 288 Neb. 233, 846 

N.W.2d 662 (2014). Both the district court and a higher appellate court generally review appeals from the county court for 

error appearing on the record. Id. When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 

is whether the decision conforms to the law, is supported 

by competent evidence, and is neither arbitrary, capricious, 

nor unreasonable. Id. But an appellate court independently 

reviews questions of law in appeals from the county court. Id. 

When deciding appeals from criminal convictions in county 

court, an appellate court applies the same standards of review 

that it applies to decide appeals from criminal convictions in 

district court. Id.

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

Amendment or on a statement’s alleged involuntariness, 

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

Regarding historical facts, the appellate court reviews the 

trial court’s findings for clear error. Whether those facts 

meet constitutional standards, however, is a question of law, 

which the appellate court reviews independently of the court’s 
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STATE V. TEMME

Cite as 32 Neb. App. 397

determination. State v. McClain, 285 Neb. 537, 827 N.W.2d 

814 (2013). See, also, State v. Woldt, 293 Neb. 265, 876 

N.W.2d 891 (2016).

[7] An appellate court will sustain a conviction in a bench 

trial of a criminal case if the properly admitted evidence, 

viewed and construed most favorably to the State, is sufficient 

to support that conviction. State v. Buol, 314 Neb. 976, 994 

N.W.2d 98 (2023). In making this determination, an appellate 

court does not resolve conflicts in the evidence, pass on the 

credibility of witnesses, evaluate explanations, or reweigh the 

evidence presented, which are within a fact finder’s province 

for disposition. Id. Instead, the relevant question is whether, 

after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable 

doubt. Id.

ANALYSIS

Temme contends the traffic stop in this case violated the 

Fourth Amendment to the U.S. Constitution and article I, § 7, 

of the Nebraska Constitution, both of which protect individuals against unreasonable searches and seizures by the government. He argues that the November 10, 2020, traffic stop was 

not supported by either probable cause or reasonable suspicion 

and, thus, was unlawful. Upon our review, we affirm the decision of the district court, which affirmed the decision of the 

county court, finding that Jensen had reasonable suspicion to 

initiate the traffic stop of Temme’s vehicle.

[8,9] The Fourth Amendment guarantees “[t]he right of 

the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures,” as does 

article I, § 7, of the Nebraska Constitution. A traffic stop is 

a seizure for Fourth Amendment purposes, and therefore is 

accorded Fourth Amendment protections. State v. Barbeau, 

301 Neb. 293, 917 N.W.2d 913 (2018). As a general matter, 

the decision to stop an automobile is reasonable where the 
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STATE V. TEMME

Cite as 32 Neb. App. 397

police have probable cause to believe that a traffic violation 

has occurred. Id. Appellate courts have long recognized that a 

traffic violation, no matter how minor, creates probable cause 

to stop the driver of a vehicle. See, e.g., id.

[10] However, probable cause is not the only standard 

applied by courts to determine whether a traffic stop is reasonable under the Fourth Amendment. The Nebraska Supreme 

Court, in Barbeau, explained as follows:

The U.S. Supreme Court has recognized the Fourth 

Amendment permits brief investigative stops of vehicles 

based on reasonable suspicion when a law enforcement 

officer has a “‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’” [See Navarette v. California, 572 U.S. 393, 396, 

134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014), quoting 

United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 

66 L. Ed. 2d 621 (1981).] The reasonable suspicion 

needed to justify an investigatory traffic stop “‘is dependent upon both the content of information possessed by 

police and its degree of reliability.’” [Id.] Like the probable cause standard, the reasonable suspicion standard 

“takes into account ‘the totality of the circumstances—

the whole picture.’” [Id.] A mere hunch does not create 

reasonable suspicion, but the level of suspicion required 

to meet the standard is “‘considerably less than proof of 

wrongdoing by a preponderance of the evidence,’ and 

‘obviously less’ than is necessary for probable cause.” 

[Navarette v. California, 572 U.S. at 397, quoting United 

States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. 

Ed. 2d 1 (1989).]

Nebraska courts have also applied the reasonable suspicion standard when considering the lawfulness of a 

traffic stop. In doing so, this court has recognized that 

“‘[p]olice can constitutionally stop and briefly detain 

a person for investigative purposes if the police have 

a reasonable suspicion, supported by articulable facts, 
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that criminal activity exists, even if probable cause is 

lacking under the [F]ourth [A]mendment.’” [State v. 

Childs, 242 Neb. 426, 433, 495 N.W.2d 475, 479 (1993), 

quoting State v. Staten, 238 Neb. 13, 469 N.W.2d 112 

(1991).] We have explained that “‘[r]easonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and 

unparticularized suspicion or “hunch,” but less than the 

level of suspicion required for probable cause.’” [State v. 

Childs, 242 Neb. at 433, 495 N.W.2d at 479-80.] When 

determining whether there is reasonable suspicion for a 

police officer to make an investigatory stop, the totality 

of the circumstances must be taken into account.

301 Neb. at 300-02, 917 N.W.2d at 921.

A determination that reasonable suspicion exists need not 

rule out the possibility of innocent conduct. State v. Barbeau,

supra. The inquiry is not whether some circumstances may 

be susceptible of innocent explanation, but whether, taken 

together, they suffice to form a particularized and objective 

basis for the officer to suspect a crime is occurring, or is about 

to occur. Id.

The question of reasonable suspicion in this case, then, 

turns on whether, considering the totality of the circumstances, 

Jensen had reliable information that provided a particularized 

and objective basis for suspecting Temme was driving under 

the influence when he backed his vehicle out of the parking stall.

Temme does not challenge the district court’s or the county 

court’s factual findings concerning Jensen’s information and 

observations, and we find no clear error in those findings. 

Applying the constitutional principles discussed above to those 

factual findings, we conclude Jensen had an objective basis, 

based on firsthand observation, for reasonably suspecting 

Temme was operating his vehicle while under the influence.

Jensen testified that he first observed Temme inside of his 

vehicle when the vehicle was lawfully parked in a parking 
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Cite as 32 Neb. App. 397

stall at about 11:30 p.m. His attention was drawn to the vehicle because the brake lights on the vehicle repeatedly turned 

off and on, even though the vehicle never moved from the 

parking stall. In addition, at one point, Jensen observed that 

the vehicle was turned on, but was quickly turned off again 

without exiting the stall. Jensen believed that the driver may 

be having trouble operating the vehicle. Instead of contacting 

Temme at that point, Jensen continued his patrol by parking 

his cruiser a block and a half away from Temme’s vehicle. 

From this vantage point, Jensen could observe traffic, but 

could still watch Temme’s vehicle.

While Jensen was sitting in his parked cruiser, Temme voluntarily approached the cruiser from the sidewalk. As Temme 

approached, Jensen observed that Temme was walking very 

slowly and appeared unsteady on his feet. He also was not 

walking in a straight line. When Temme spoke to Jensen, 

he observed that Temme’s speech was noticeably slurred. 

After his interaction with Temme, Jensen believed, based 

upon his experience as a law enforcement officer, that Temme 

was under the influence of alcohol. Because Temme did not 

return to his vehicle at that point, Jensen did not detain him. 

However, Jensen continued to monitor Temme because he 

believed that Temme was waiting for him to leave the area. 

After circling the block in his cruiser, Jensen observed Temme 

to be backing his vehicle out of the parking stall. Jensen then 

initiated a stop of Temme.

[11] Jensen testified that when forming the opinion that 

Temme was under the influence, in addition to his direct 

observations of Temme, he also considered the area where 

Temme and his vehicle were located. The area housed many 

restaurants and bars that served alcohol. Such considerations 

about the area surrounding the traffic stop are proper. See 

State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020) 

(indicating that circumstances for determining reasonable suspicion include nature of area and time of day during which 

suspicious activity occurred). See, also, State v. Thomas, 
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STATE V. TEMME

Cite as 32 Neb. App. 397

240 Neb. 545, 483 N.W.2d 527 (1992) (reasonable suspicion 

existed based upon, among other things, defendant’s operation of his vehicle in area of known drug traffic); State v. 

Stubblefield, 2 Neb. App. 307, 311, 509 N.W.2d 243, 246 

(1993) (officer’s “frisk” of defendant for weapons during 

traffic stop was justified, in part, on stop taking place in 

“‘high drug area’”). But see State v. Hicks, 241 Neb. 357, 

488 N.W.2d 359 (1992) (person’s presence in area known for 

drug use by itself does not warrant suspicion that that person 

is involved in crime). Here, Jensen acted reasonably in considering the area in which he initiated the stop of Temme’s 

vehicle in conjunction with all of his other observations when 

determining whether there was reasonable suspicion to support the stop.

Jensen also testified that he had specific training on how 

to identify impaired drivers and that he had participated in 

hundreds of driving under the influence investigations. He had 

daily contact with intoxicated individuals as part of his patrol 

of the “downtown area” in Lincoln.

When considering the totality of the circumstances, we 

determine that the investigatory stop of Temme’s vehicle was 

supported by reasonable suspicion and comported with the 

Fourth Amendment to the U.S. Constitution and article I, § 7, 

of the Nebraska Constitution. Jensen had reasonable suspicion to believe that Temme was driving under the influence 

when he observed Temme pull his vehicle out of the parking 

stall. As such, we affirm the decision of the district court to 

affirm the county court’s ruling that overruled Temme’s motion 

to suppress.

In his brief on appeal, Temme also asserts that there was 

insufficient evidence to support his conviction for driving 

under the influence. However, Temme concedes in his brief 

that such “argument relies upon the first assignment of error 

that the County Court erred by overruling his motion to suppress.” Brief for appellant at 15. Given our conclusion that 

there was no error in denying Temme’s motion to suppress, 
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we decline to address his sufficiency of the evidence argument 

any further. The testimony of Jensen regarding his observations of Temme both prior to and during the traffic stop and 

the results of Temme’s chemical test constitute sufficient evidence to support his conviction.

CONCLUSION

We affirm the decision of the district court that affirmed the 

county court’s decision to deny Temme’s motion to suppress 

and find him guilty of driving under the influence.

Affirmed.