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300 Nebraska Report

STATE v. PETSCH

Cite as 300 Neb. 401

State of Nebraska, appellee, v.

Adam T. Petsch, appel

___ N.W.2d ___

Filed June 29, 2018. No. S-17-997.

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 protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

2. Trial: Investigative Stops: Warrantless Searches: Appeal and Error. 

The ultimate determinations of reasonable suspicion to conduct an 

investigatory stop and probable cause to perform a warrantless search 

are reviewed de novo, and findings of fact are reviewed for clear error, 

giving due weight to the inferences drawn from those facts by the 

trial judge.

3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. 

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from trial and from the hearings on the motion to suppress.

4. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure: Arrests. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive questioning and does not involve any restraint of liberty of the citizen. Because 

tier-one encounters do not rise to the level of a seizure, they are outside 

the realm of Fourth Amendment protection. A tier-two police-citizen 

encounter involves a brief, nonintrusive detention during a frisk for 

weapons or preliminary questioning. A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy 

search or detention. Tier-two and tier-three police-citizen encounters are 

Nebraska Supreme Court Online Library

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

08/17/2018 09:09 AM CDT
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STATE v. PETSCH

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seizures sufficient to invoke the protections of the Fourth Amendment to 

the U.S. Constitution.

5. Warrantless Searches: Probable Cause: Police Officers and Sheriffs. 

Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that 

is reasonably trustworthy under the circumstances, which would cause a 

reasonably cautious person to believe that a suspect has committed or is 

committing a crime.

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

commonsense standard that depends on the totality of the circumstances.

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.

8. Probable Cause: Police Officers and Sheriffs. An arresting officer’s 

state of mind is irrelevant to the existence of probable cause.

9. Probable Cause: Appeal and Error. Appellate courts should avoid 

an excessively technical dissection of the factors supporting probable 

cause. The test to be employed is whether the totality of the circumstances would suggest that probable cause existed.

Appeal from the District Court for Lancaster County, Rober

R. Otte, Judge, on appeal thereto from the County Cour

for Lancaster County, Timothy C. Phillips and Thomas

Zimmerman, Judges. Judgment of District Court affirmed

Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder 

& Blomenberg, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

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

Papik, JJ., and Johnson, District Jud

Heavican, C

INTRODUCTION

Adam T. Petsch was charged with aggravated driving under 

the influence and displaying unlawful or fictitious license 

plates. His motion to suppress was denied, and he was convicted following a stipulated bench trial. He appeals.
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STATE v. PETSCH

Cite as 300 Neb. 401

We moved this case to our docket because it presented 

similar facts to, and Petsch relied upon the Nebraska Court 

of Appeals’ opinion in, State v. Botts.

1

 We recently reversed 

the Court of Appeals’ opinion in Botts on petition for further 

review.2 We affirm Petsch’s convictions.

BACKGROUND

On November 20, 2015, at approximately 11:25 a.m., Troy 

Aksamit, an officer with the Lincoln, Nebraska, police department, observed a white sport utility vehicle (SUV) with an 

expired license plate. Aksamit was traveling in his patrol 

vehicle in the opposite direction, and so he conducted a U-turn 

and proceeded to follow the SUV. The SUV had turned left 

by that time, so Aksamit also turned left. Aksamit testified he 

felt that the driver was “attempting to speed up and flee from 

me.” At that time, Aksamit activated his patrol vehicle’s overhead lights and sirens. Despite this, the SUV did not pull over 

and continued to make left turns before eventually coming to 

a stop.

A review of the video of the stop supports Aksamit’s testimony that the SUV was attempting to flee from him. The 

video shows that it took Aksamit approximately 20 seconds to 

catch up to the SUV. At that time, Aksamit activated his patrol 

vehicle’s lights and sirens. From that point, the SUV drove on 

for over 45 seconds, making left turns on mostly deserted side 

streets and also stopping at a stop sign, but then crossing that 

street, with Aksamit’s patrol vehicle following behind with 

lights flashing.

While stopped behind the SUV, Aksamit noted that it had 

tinted windows and some equipment stored in the back, but 

testified that he could see some movement inside the SUV. 

After about 30 seconds, Aksamit made contact with Petsch, the 

driver of the SUV. The video shows that Aksamit approached 

the SUV with his service revolver drawn from its holster, but 

1 See State v. Botts, 25 Neb. App. 372, 905 N.W.2d 704 (2017).

2 See State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).
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held the revolver pointed down to the ground. As soon as 

Petsch exited the SUV and indicated compliance through his 

actions, Aksamit holstered his revolver. The revolver remained 

unholstered for under 30 seconds and was never brandished 

in a threatening manner. Askamit testified that he drew the 

weapon for officer safety reasons because he was unaware of 

whether there was another occupant in the SUV; it transpired 

that Petsch was the only occupant of the SUV.

After exiting the SUV, Petsch was handcuffed without incident; Aksamit testified that he also handcuffed Petsch for 

officer safety reasons. After other officers arrived at the scene, 

Aksamit placed Petsch in the back of his patrol vehicle. Petsch 

declined to undergo field sobriety tests and refused consent for 

a search of his SUV.

Aksamit testified that he noticed Petsch seemed “impaired” 

and had a “slowed response” and that he “had to ask him four 

times, basically, the same question.” Aksamit was concerned 

that Petsch might be having a medical episode. Aksamit also 

testified that he noted Petsch had a “little bit of a problem 

walking.” Aksamit left Petsch alone in the patrol vehicle for a 

few minutes; upon returning, Aksamit “immediately detected 

a strong odor of alcoholic beverage.” The record shows that a 

second officer also detected this odor.

Aksamit testified that he did not see anything in plain view 

when he looked into Petsch’s SUV, but that he later searched 

it. In so searching, Aksamit found a cup in the SUV that 

contained a “strong alcoholic beverage.” Aksamit also found 

one empty 50-milliliter bottle and two unopened 50-milliliter 

bottles of “Jack Daniel’s Tennessee Honey” whiskey.

Because of Petsch’s “reactions to the questions, me asking 

questions four or five times, him slow to respond, acting as 

though he was confused . . . a very strong odor of alcoholic 

beverage,” Aksamit concluded that Petsch was under the influence of alcohol. Upon being transported to “detox,” a chemical 

test was performed and Petsch’s breath test registered at .286 

of a gram of alcohol per 210 liters of breath.
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Petsch was cited for driving under the influence (DUI), 

fleeing to avoid arrest, and failing to attach renewal decals to 

his license plate. While Aksamit testified that Petsch’s SUV’s 

front license plate did not have an updated sticker, he testified 

that the back license plate did have such a sticker.

Petsch was charged in the county court with DUI and driving with fictitious plates. Petsch filed a motion to suppress 

“any and all evidence regarding observations made of [Petsch], 

statements . . . made by [Petsch], any results of chemical tests 

of [Petsch’s] blood, breath, or urine or evidence of any kind 

that was obtained by law enforcement personnel as a result 

of the stop and subsequent arrest.” As relevant to this appeal, 

Petsch alleged that law enforcement lacked (1) reasonable suspicion to stop and seize his SUV, (2) probable cause to handcuff him, and (3) probable cause to arrest him for DUI.

Following a hearing, the county court denied Petsch’s 

motion to suppress. Petsch was eventually found guilty in a 

stipulated bench trial. For the DUI conviction, Petsch was 

sentenced to probation, with a 30-day term of house arrest and 

a $1,000 fine. For the fictitious plates conviction, Petsch was 

fined $50. Petsch appealed to the district court, which affirmed. 

He appeals.

ASSIGNMENTS OF ERROR

Petsch assigns that the district court erred in (1) finding 

that he was not arrested when he was handcuffed at gunpoint, 

(2) finding sufficient probable cause to arrest him for DUI, 

(3) overruling his motion to suppress, and (4) finding him 

guilty of second-offense DUI and unlawful/fictitious display of 

license plates.

STANDARD OF REVIEW

[1,2] 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.3

3 Id.
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STATE v. PETSCH

Cite as 300 Neb. 401

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of 

law that an appellate court reviews independently of the trial 

court’s determination.4 The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de 

novo, and findings of fact are reviewed for clear error, giving 

due weight to the inferences drawn from those facts by the 

trial judge.5

[3] When a motion to suppress is denied pretrial and again 

during trial on renewed objection, an appellate court considers 

all the evidence, both from trial and from the hearings on the 

motion to suppress.6

ANALYSIS

The crux of Petsch’s appeal is that the county court erred 

in denying his motion to suppress. Petsch contended in the 

motion to suppress that law enforcement lacked (1) reasonable 

suspicion to stop and seize his vehicle, (2) probable cause to 

handcuff him, and (3) probable cause to arrest him for DUI. 

Petsch sought the suppression of “any and all evidence regarding observations made of [Petsch], statements . . . made by 

[Petsch], any results of chemical tests of [Petsch’s] blood, 

breath, or urine or evidence of any kind that was obtained by 

law enforcement personnel as a result of the stop and subsequent arrest.”

Before turning to the issues on appeal, we note what is not

at issue on appeal. In his motion to suppress, Petsch contends 

that the stop of his SUV was not supported by reasonable 

suspicion. Aksamit testified that the initial reason for stopping 

Petsch was for operating a vehicle with fictitious plates. And 

on appeal, Petsch assigns that the court erred in finding him 

4 Id.

5 Id.

6 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
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guilty of that charge. But Petsch does not challenge the stop in 

his appeal, and does not further argue his assignment of error 

regarding the fictitious plates conviction. Accordingly, we will 

not address either contention.

[4] We begin with a refresher on police-citizen encounters and probable cause. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited 

through noncoercive questioning and does not involve any 

restraint of liberty of the citizen. Because tier-one encounters do not rise to the level of a seizure, they are outside the 

realm of Fourth Amendment protection.7 A tier-two policecitizen encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning.8

 A tier-three 

police-citizen encounter constitutes an arrest, which involves 

a highly intrusive or lengthy search or detention.9 Tier-two 

and tier-three police-citizen encounters are seizures sufficient 

to invoke the protections of the Fourth Amendment to the 

U.S. Constitution.10

[5-7] Probable cause to support a warrantless arrest exists 

only if law enforcement has knowledge at the time of the arrest, 

based on information that is reasonably trustworthy under the 

circumstances, which would cause a reasonably cautious person to believe that a suspect has committed or is committing 

a crime.11 Probable cause is a flexible, commonsense standard 

that depends on the totality of the circumstances.12 An appellate court determines whether probable cause existed under an 

objective standard of reasonableness, given the known facts 

and circumstances.13

7 Id.

8 Id.

9 Id.

10 Id.

11 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

12 Id.

13 Id.
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Law Enforcement Had Probable 

Cause to Arrest Petsch Based 

Upon Petsch’s Flight.

We turn first to Petsch’s contention set forth in his first 

assignment of error: that he was arrested when Aksamit placed 

him in handcuffs after stopping his SUV and that probable 

cause to do so was lacking. We observe that Aksamit testified 

that he did not arrest Petsch at the time he handcuffed him, but, 

rather, restrained Petsch for officer safety reasons. However, 

we do not opine on the propriety of Aksamit’s action insofar 

as it relates to officer safety, because we conclude that there 

was probable cause to arrest Petsch as a result of his flight 

from Aksamit.14

[8] The U.S. Supreme Court explained in Devenpeck v. 

Alford15 that

an arresting officer’s state of mind (except for the facts 

that he knows) is irrelevant to the existence of probable cause. . . . That is to say, his subjective reason for 

making the arrest need not be the criminal offense as 

to which the known facts provide probable cause. As 

we have repeatedly explained, “‘the fact that the officer 

does not have the state of mind which is hypothecated 

by the reasons which provide the legal justification for 

the officer’s action does not invalidate the action taken 

as long as the circumstances, viewed objectively, justify 

that action.’” . . . “[T]he Fourth Amendment’s concern 

with ‘reasonableness’ allows certain actions to be taken 

in certain circumstances, whatever the subjective intent.” 

. . . “[E]venhanded law enforcement is best achieved by 

the application of objective standards of conduct, rather 

than standards that depend upon the subjective state of 

mind of the officer.”

14 See Neb. Rev. Stat. § 28-905 (Reissue 2016).

15 Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 160 L. Ed. 2d 537 

(2004) (citations omitted).
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In this case, the fact that Aksamit’s subjective belief was 

that he was handcuffing Petsch for officer safety reasons is 

immaterial. Aksamit knew that Petsch had attempted to flee 

from him when Aksamit activated his patrol vehicle’s lights 

and sirens and tried to stop Petsch. Indeed, Aksamit referenced 

in his testimony that Petsch “just took off from me,” as support for his decision to place Petsch in handcuffs. A reasonable 

officer could have believed that Petsch was operating a “motor 

vehicle to flee in such vehicle in an effort to avoid arrest or 

citation” as prohibited by § 28-905(1).

There was probable cause to support Petsch’s arrest for 

operating a motor vehicle to avoid arrest. As such, we find no 

merit to Petsch’s first assignment of error.

Probable Cause to Support 

DUI Arrest.

In his second assignment of error, Petsch assigns that law 

enforcement lacked probable cause to arrest him for DUI. We 

again disagree.

Aksamit testified that Petsch had a slow reaction time, 

appeared confused, and had to be asked questions multiple 

times. According to Aksamit, Petsch stumbled while walking to Aksamit’s patrol vehicle. After being in that vehicle 

for a short period of time, both Aksamit and another officer 

noticed the odor of alcoholic beverage. Aksamit’s report, 

which was part of the trial stipulation, noted that prior to 

Petsch’s being placed into the patrol vehicle, the vehicle did 

not smell like alcohol. In other words, the record shows that 

the smell of alcohol was emanating from Petsch and not from 

another source.

Finally, Aksamit testified that he was concerned Petsch had 

tried to flee and that he, Aksamit, was unaware of what Petsch 

was doing inside his SUV during and immediately after the 

vehicle stop.

On appeal, Petsch contends that there were other indicia 

that would suggest that he was not under the influence of alcohol—for example, he did not engage in other erratic driving; 
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did not admit to drinking; did not have watery or bloodshot 

eyes; did not have slurred speech; was cooperative; and walked 

appropriately and did not fall, stagger, or sway. Also, no field 

sobriety tests were conducted and no preliminary breath test 

was requested.

[9] Relying on U.S. Supreme Court case law, we recently 

noted in State v. Botts that “appellate courts should avoid an 

‘“excessively technical dissection” of the factors supporting 

probable cause.’”16 The test to be employed is whether the 

totality of the circumstances would suggest that probable cause 

existed. We went on to observe that “[i]n assessing probable 

cause, an officer’s ‘“relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”’”17

And in applying that rationale here, we note that the fact that 

these indicia of DUI were not present does not mean that 

Aksamit was not permitted to consider the signs that were present—chief among these being the strong odor of alcohol and 

Petsch’s apparent confusion and slowed reaction time.

Petsch also argues that no field sobriety tests or preliminary 

breath test were conducted, and he further asserts that any 

suggestion that he declined those tests was not reflective of 

the record. But one of the responding officers testified, and 

the recording of the stop confirmed, that the officer tried to 

conduct a field sobriety test involving the alphabet. Petsch 

declined to participate and indicated that he would first speak 

to his lawyer. It was not unreasonable, given this request, that 

no further field sobriety testing or preliminary breath testing 

was sought.

We find that given the totality of these circumstances, probable cause existed to support the DUI arrest. There is no merit 

16 State v. Botts, supra note 2, 299 Neb. at 816, 910 N.W.2d at 788 (quoting 

District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 199 L. Ed. 

2d 453 (2018)).

17 Id. at 817, 910 N.W.2d at 788.
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to Petsch’s second assignment of error. And because there 

was probable cause to support Petsch’s detention and arrest, 

the county court’s denial of the motion to suppress was not in 

error. There is no merit to Petsch’s third assignment of error.

No Error in Guilty Finding.

Finally, Petsch assigns that the court erred in finding him 

guilty of DUI and driving with fictitious plates. As we noted 

above, Petsch does not argue the assignment of error as it 

relates to the fictitious plates. And while Petsch does preserve his assignment of error as to the DUI conviction, this 

contention is based upon his assertion, which we have above 

rejected, that the county court erred in denying his motion 

to suppress.

We have concluded that there was probable cause to arrest 

Petsch. And we further note that when alcohol breath testing 

was later completed at a detoxification center, the content of 

alcohol in Petsch’s breath was .286, which is 31⁄2 times the 

legal limit and sufficient to support Petsch’s conviction for 

DUI.18 There is no merit to Petsch’s final assignment of error.

CONCLUSION

The decision of the district court affirming the county 

court’s convictions is affirmed.

Affirmed

18 See Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197.03(5) (Supp. 

2015).