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Decisions of the Nebraska Court of Appe

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STATE v. WOLDT

Cite as 23 Neb. App. 42

State of Nebraska, appellee, v

Adam T. Woldt, appell

___ N.W.2d ___

Filed July 21, 2015. No. A-14-573.

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

the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

protect individuals against unreasonable searches and seizures by the 

government.

4. ____: ____. A seizure in the Fourth Amendment context occurs only if, 

in view of all the circumstances surrounding the incident, a reasonable 

person would have believed that he or she was not free to leave.

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

Officers and Sheriffs: Search and Seizure. Temporary detention of 

individuals during the stop of an automobile by the police, even if only 

for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of the Fourth Amendment.

6. Constitutional Law: Investigative Stops: Warrantless Searches: 

Probable Cause: Police Officers and Sheriffs. Police can constitutionally stop and briefly detain a person for investigative purposes if 
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the police have a reasonable suspicion, supported by articulable facts, 

that criminal activity exists, even if probable cause is lacking under the 

Fourth Amendment.

7. Constitutional Law: Search and Seizure: Motor Vehicles. A motorist 

has a reasonable expectation of privacy which is not subject to arbitrary invasions solely at the unfettered discretion of police officers in 

the field.

8. Constitutional Law: Highways: Motor Vehicles: Investigative Stops: 

Search and Seizure. A vehicle stop at a highway checkpoint effectuates 

a seizure within the meaning of the Fourth Amendment.

9. Highways: Investigative Stops. A highway checkpoint must be both 

authorized by an approved plan and conducted in a manner that complies with the plan and the policy established by the authority at the 

policymaking level.

10. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

11. Double Jeopardy: Evidence: New Trial: Appeal and Error. The 

Double Jeopardy Clause does not forbid a retrial so long as the sum of 

all the evidence admitted by a trial court, whether erroneously or not, 

would have been sufficient to sustain a guilty verdict.

Appeal from the District Court for Cuming County, James

G. Kube, Judge, on appeal thereto from the County Court for

Cuming County, Michael L. Long, Judge. Judgment of Distr

Court reversed, and cause remanded with directions.

Thomas B. Donner for appellant.

Jon Bruning, Attorney General, and Austin N. Relph for 

appellee.

Moore, Chief Judge, and Irwin and Riedmann, Ju

Moore, Chief Judge

INTRODUCTION

Adam T. Woldt appeals from the order of the district 

court for Cuming County which affirmed his conviction in 

the county court for driving under the influence (DUI). The 

sole issue presented to us in this appeal is whether the stop 

of Woldt’s vehicle for the purpose of gathering information about a third party’s possible criminal activity violated 
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STATE v. WOLDT

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Woldt’s constitutional right to be free from an unreasonable search and seizure. We conclude that the stop was 

unlawful and that Woldt’s motion to suppress should have 

been sustained.

BACKGROUND

On September 26, 2013, the State filed a complaint in the 

county court, charging Woldt with first-offense DUI in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a Class W 

misdemeanor.

Woldt filed a motion to suppress, which was heard by the 

county court on November 5, 2013. The State presented testimony from police officers involved in the investigations on 

the evening in question. Woldt testified and also presented 

testimony from the other individual who was investigated on 

the evening in question.

The evidence at the hearing showed generally that on 

September 13, 2013, Officer Randy Davie of the Wisner Police 

Department received a call from dispatch about a report that 

someone driving a white Chevrolet pickup was knocking over 

traffic cones on the highway that is the main street of Wisner, 

Nebraska. At the scene, Davie observed 38 cones knocked 

down along both sides of the highway.

While picking up the cones, Davie heard squealing tires 

north of his location. After picking up the cones, he drove 

north on a side street. Davie was driving without lights because 

he “was going to see who was squealing their tires.” He then 

observed a white Chevrolet pickup followed within a car 

length or less by a dark-colored pickup proceeding toward him 

south on the side street.

When the white pickup neared Davie’s location, Davie 

turned on his patrol car’s headlights and extended his arm 

straight out of the patrol car’s window indicating that the 

white pickup should stop. Davie did not turn on his patrol 

car’s overhead lights or sirens during the stop of the white 

pickup. The driver of the white pickup, whom Davie recognized as Jacob Biggerstaff, pulled over and stopped south of 
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STATE v. WOLDT

Cite as 23 Neb. App. 42

Davie’s patrol car by about four to five car lengths. Davie 

stopped the white pickup because he thought that it might 

have been involved in knocking over the traffic cones on 

the highway. Davie exited his patrol car, left its door open, 

and walked over to contact Biggerstaff. Upon contacting 

Biggerstaff, Davie smelled the odor of alcohol, and at that 

point, he began a DUI investigation of Biggerstaff. Davie did 

not ask Biggerstaff about the traffic cone incident but asked 

him to step out of the pickup. When Biggerstaff complied, 

Davie took him to the patrol car. Davie remained outside of 

the patrol car, and Biggerstaff seated himself in the passenger 

side of the patrol car without Davie’s assistance.

While this was happening, the driver of the dark-colored 

pickup, whom Davie recognized as Woldt and whom Davie 

knew to be a city employee, had parked his pickup across from 

Davie’s patrol car on the west side of the side street near an 

intersection. Davie testified that the front of his patrol car was 

about even with the intersection and that Woldt’s pickup was 

parked with the rear 3 to 4 feet extending into the intersection. Woldt testified that he was in the process of making the 

turn south onto the side street when he saw Davie motion to 

stop Biggerstaff. Woldt pulled over and parked behind another 

parked car. According to Woldt, he was unable to proceed 

south down the street because his line of travel was blocked 

by Davie’s open car door and he could not continue closer 

to the curb because of the parked car in front of him. Woldt 

remained in his pickup with the window rolled down. As Davie 

and Biggerstaff were approaching the patrol car, Woldt began 

to reverse his pickup.

Davie then held up his hand and gestured for Woldt to 

approach. Woldt testified that Davie said something to him 

at that point, but he could not remember exactly what was 

said. Davie also could not remember whether he said anything 

to Woldt. Davie testified that it was his intent to speak with 

Woldt about whether he had seen Biggerstaff do anything 

and to ask why he was following Biggerstaff. Davie did not 

observe anything about the operation of Woldt’s pickup that 
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STATE v. WOLDT

Cite as 23 Neb. App. 42

led him to believe Woldt had violated any rules of the road 

or any other state laws or city ordinances. Davie testified that 

he was concerned with the white pickup, and if Woldt had 

not stopped initially, he would not have stopped him because 

he “had no reason to stop him.” During redirect examination 

by the State, Davie agreed that he probably could have cited 

Woldt for following Biggerstaff too closely.

Upon approaching Woldt’s pickup, Davie smelled the odor 

of alcohol and began a second DUI investigation. He asked 

Woldt whether he had been drinking, and at that point, Woldt 

“just put his head down.” Davie asked Woldt if he was drunk, 

and Woldt responded by shutting off his pickup and handing 

the keys to Davie. Davie contacted another officer for assistance. Woldt was then given a field sobriety test and preliminary breath test and was arrested for DUI.

On December 3, 2013, the county court entered an order 

overruling Woldt’s motion to suppress. In analyzing the stop 

of Woldt, the court utilized the three-part balancing test outlined in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 

2d 357 (1979), which balances the gravity of the public concern served by the seizure and the degree the seizure advances 

the public interest against the severity of the interference with 

the seized person’s individual liberty.

The county court found Davie’s actions were reasonable. 

The court reasoned that even though the possible offenses 

Davie was investigating were most likely misdemeanors, the 

matter did involve operation of a motor vehicle on the fourlane public highway that passes through Wisner. The court 

concluded that the acts committed in Wisner during the night 

of September 13, 2013, posed a significant threat to the safety 

of citizens driving the public roads in and through Wisner. 

The court found it was also reasonable for Davie to conclude 

that the driver of the dark-colored pickup that was following 

Biggerstaff would have been an eyewitness to Biggerstaff’s 

driving. The court stated, “This eyewitness evidence of . . . 

Biggerstaff’s driving would be essential to proving the element of whether . . . Biggerstaff was ‘under the influence of 
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alcohol’ at a jury trial on this charge.” The court found that 

the degree of interference with Woldt’s liberty in this case 

was outweighed by the other two elements of the balancing 

test outlined in Brown v. Texas, supra. The court observed 

that Woldt had voluntarily stopped and remained stopped 

on the street during the entire time Davie had contact with 

Biggerstaff and that Woldt’s pickup was stopped in the street 

with the back part of it partially in the intersection. The 

court stated, “It appears that . . . Davie intended to speak to 

. . . Woldt momentarily before continuing his investigation of 

. . . Biggerstaff.” The court concluded that Davie’s interference with Woldt’s liberty was slight and reiterated its finding 

that the stop of Woldt was reasonable.

On February 4, 2014, a bench trial on stipulated facts 

was held before the county court. At trial, Woldt renewed 

the objections raised in his motion to suppress and made at 

the suppression hearing. The court overruled Woldt’s objections. The court received into evidence the transcription of 

the suppression hearing, including the exhibits received at 

the hearing, as well as the parties’ stipulation. The stipulation included the fact that if called to testify, witnesses would 

testify that on September 13, 2013, upon Woldt’s completion 

of field sobriety tests, a law enforcement officer had reasonable grounds to believe Woldt was driving or was in actual 

physical control of a motor vehicle while under the influence 

of alcohol. The stipulation also provided that a chemical test 

of Woldt’s breath showed that he had a concentration of .08 

of 1 gram or more by weight of alcohol per 210 liters of his 

breath, with the specific result being .148. The court found 

Woldt guilty of first-offense DUI and sentenced him to probation for a period of 6 months, ordered him to pay a fine of 

$500 and all costs of prosecution, and revoked his operator’s 

license for 60 days.

Woldt appealed his conviction and sentence to the district court, and in his statement of errors, he asserted that 

the county court erred in overruling his motion to suppress, 
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STATE v. WOLDT

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admitting evidence obtained after the stop of his pickup, and 

finding sufficient evidence to convict him.

Following a hearing, the district court entered an order on 

June 17, 2014, affirming Woldt’s conviction and sentence. 

On appeal, Woldt did not dispute the appropriateness of the 

county court’s use of the balancing test from Brown v. Texas, 

433 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), even 

though this case is not one involving a checkpoint stop, but 

he argued that the county court did not place the appropriate 

weight on the factors of the test.

With respect to the gravity of the public concern served, 

the district court noted that in addition to the knocked-over 

traffic cones, Davie was investigating the possibility that 

Biggerstaff had been driving while under the influence. The 

court considered this to be significant and did not consider 

this crime to be less severe than those addressed in cases cited 

by Woldt.

Next, the district court addressed Woldt’s argument that 

without a sufficient nexus between the alleged criminal act 

and the need to stop a potential witness, the public interest could not be served sufficiently to allow for his seizure. 

Woldt agreed that an investigation into Biggerstaff’s commission of a crime had begun, but he argued that Davie had 

obtained insufficient information in order to stop Woldt and 

ask what he knew. The court noted Davie’s observation of 

Woldt’s following Biggerstaff closely as they approached 

Davie’s patrol car and of Woldt’s sitting in his parked pickup 

with its lights on and the window down as if he might want 

to say something to Davie. The court found it reasonable to 

believe that Woldt had some information which might have 

assisted in the investigation of Biggerstaff and considered 

this a sufficient nexus to support Davie’s actions on the night 

in question.

Finally, the district court considered Woldt’s argument that 

the interference with his liberty interest was severe and outweighed the other two factors. The court noted that although 

there was conflicting evidence about whether Woldt could 
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STATE v. WOLDT

Cite as 23 Neb. App. 42

have driven past Davie and Biggerstaff, he did not do so. 

The court found no evidence of any command being made 

by Davie as neither Davie nor Woldt could remember what, 

if anything, was said. The court found that although Davie 

could not have been absolutely certain Woldt had any information about Biggerstaff, considering the totality of the circumstances, it was reasonable for Davie to perceive either that 

Woldt wanted to convey some information or that he might 

possess information helpful to the investigation. The court 

concluded that the degree of interference with Woldt’s liberty 

interest on the night in question was outweighed by the gravity of the public concern served by the seizure along with the 

degree to which the seizure advanced the public interest in 

this case. Accordingly, the district court affirmed the county 

court’s decision with regard to Woldt’s motion to suppress 

in its entirety. Woldt subsequently perfected his appeal to 

this court.

ASSIGNMENTS OF ERROR

Woldt asserts, consolidated and restated, that the district 

court erred in affirming the county court’s (1) overruling of 

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

to convict him. However, Woldt does not argue his sufficiency 

of the evidence assignment of error. Accordingly, we only 

address his arguments with respect to the motion to suppress. 

An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to 

be considered by an appellate court. State v. Turner, 288 Neb. 

249, 847 N.W.2d 69 (2014).

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. State 

v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014). 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 
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an appellate court reviews independently of the trial court’s 

determination. State v. Piper, supra. 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. State v. Dalland, 287 Neb. 231, 842 

N.W.2d 92 (2014).

ANALYSIS

[3-6] At issue in this case is whether Davie’s suspicionless 

stop of Woldt to gather information about Biggerstaff’s possible criminal activity violated Woldt’s Fourth Amendment 

rights. The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government. 

State v. Piper, supra. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that 

he or she was not free to leave. State v. Avey, 288 Neb. 233, 

846 N.W.2d 662 (2014). Temporary detention of individuals 

during the stop of an automobile by the police, even if only 

for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of the Fourth Amendment. 

State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). 

Police can constitutionally stop and briefly detain a person 

for investigative purposes if the police have a reasonable 

suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the Fourth 

Amendment. State v. Allen, 269 Neb. 69, 690 N.W.2d 582 

(2005), disapproved on other grounds, State v. McCulloch, 274 

Neb. 636, 742 N.W.2d 727 (2007).

There is no dispute in this case that a seizure of Woldt 

occurred when he was stopped by Davie. In determining 

whether the seizure violated Woldt’s Fourth Amendment 

rights, both the county court and the district court applied the 

three-part balancing test outlined in Brown v. Texas, 443 U.S. 
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47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), which recognizes 

that seizures without reasonable suspicion may be reasonable under certain circumstances. In that case, police officers 

stopped the defendant who was walking in an area with a 

high rate of drug traffic. The officers did not suspect him of 

criminal activity but wanted to determine his identity under a 

state law requiring a lawfully stopped individual to identify 

himself or herself. The Court found that the defendant had 

been seized in violation of the Fourth Amendment to the U.S. 

Constitution and stated:

The reasonableness of seizures that are less intrusive than a traditional arrest . . . depends “on a balance 

between the public interest and the individual’s right to 

personal security free from arbitrary interference by law 

officers.” . . . Consideration of the constitutionality of 

such seizures involves a weighing of the gravity of the 

public concerns served by the seizure, the degree to which 

the seizure advances the public interest, and the severity 

of the interference with individual liberty. . . .

A central concern in balancing these competing considerations in a variety of settings has been to assure that 

an individual’s reasonable expectation of privacy is not 

subject to arbitrary invasions solely at the unfettered discretion of officers in the field. . . . To this end, the Fourth 

Amendment requires that a seizure must be based on 

specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant 

to a plan embodying explicit, neutral limitations on the 

conduct of individual officers.

Brown v. Texas, 443 U.S. at 50-51 (citations omitted).

The U.S. Supreme Court also applied the balancing test 

from Brown v. Texas, supra, in Illinois v. Lidster, 540 U.S. 

419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004). The Lidster

Court addressed the reasonableness of a suspicionless checkpoint stop to gather information regarding a fatal hit-and-run 

accident that occurred 1 week prior at that location. In that 
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case, police set up a checkpoint 1 week after a hit-and-run 

accident at the same location where the accident occurred. 

Officers briefly stopped each vehicle, asked whether the occupants had seen anything the week before, and gave each 

driver a flyer with relevant information. When the defendant 

approached, he swerved and almost hit an officer, and upon 

contact, the officer smelled alcohol on his breath. Following a 

sobriety test, the defendant was arrested and convicted of driving while under the influence of alcohol.

In Lidster, the U.S. Supreme Court distinguished 

Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. 

Ed. 2d 333 (2000), a case relied on by the Illinois Supreme 

Court in its decision below. The primary purpose of the 

checkpoint at issue in Edmond was to determine whether the 

vehicle’s occupants were committing a crime, and the Court 

found that type of checkpoint violated the Fourth Amendment. 

In distinguishing Edmond, the Lidster Court stated:

[I]nformation-seeking highway stops are less likely to 

provoke anxiety or to prove intrusive [than the type of 

stop in Edmond]. The stops are likely brief. The police 

are not likely to ask questions designed to elicit selfincriminating information. And citizens will often react 

positively when police simply ask for their help . . . .

540 U.S. at 425. The Lidster Court stated further:

[T]he law ordinarily permits police to seek the voluntary 

cooperation of members of the public in the investigation of a crime. “[L]aw enforcement officers do not 

violate the Fourth Amendment by merely approaching 

an individual on the street or in another public place, by 

asking him if he is willing to answer some questions, 

[or] by putting questions to him if the person is willing 

to listen.” . . . That, in part, is because voluntary requests 

play a vital role in police investigatory work. . . .

The importance of soliciting the public’s assistance 

is offset to some degree by the need to stop a motorist 

to obtain that help—a need less likely present where a 

pedestrian, not a motorist, is involved. The difference 
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is significant in light of our determinations that such 

an involuntary stop amounts to a “seizure” in Fourth 

Amendment terms. . . . That difference, however, is not 

important enough to justify an Edmond-type rule here. 

After all, as we have said, the motorist stop will likely 

be brief. Any accompanying traffic delay should prove no 

more onerous than many that typically accompany normal traffic congestion. And the resulting voluntary questioning of a motorist is as likely to prove important for 

police investigation as is the questioning of a pedestrian. 

Given these considerations, it would seem anomalous 

were the law (1) ordinarily to allow police freely to seek 

the voluntary cooperation of pedestrians but (2) ordinarily to forbid police to seek similar voluntary cooperation 

from motorists.

540 U.S. at 425-26.

The Lidster Court then applied the balancing test from 

Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 

357 (1979), finding the relevant public concern at issue, 

investigation of a fatal traffic accident, to be grave, noting 

that the police objective was to seek help in finding the perpetrator of a specific and known crime. The Court also found 

that the checkpoint stops significantly advanced the grave 

public concern as they were appropriately tailored to meet 

law enforcement’s criminal investigatory needs. Specifically, 

the checkpoint was set up 1 week later near the accident 

location, and at about the same time of night, and it sought 

information from drivers who might have been in the area 

when the crime occurred. Finally, the Court found that the 

interference with drivers’ liberty interest was minimal. The 

police systematically and briefly stopped all vehicles at the 

checkpoint, asked if they had information, and handed out 

flyers. Accordingly, the Court concluded that the checkpoint 

was constitutional.

[7] The Nebraska Supreme Court has also addressed the 

constitutionality of checkpoint stops. In State v. Crom, 222 

Neb. 273, 383 N.W.2d 461 (1986), Nebraska adopted the 
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unfettered discretion standard of Brown v. Texas, supra. In 

the Crom case, several low-ranking police officers decided to 

set up transitory checkpoints and stop every fourth vehicle to 

check the operator’s license and vehicle registration, although 

the real purpose of the stops was to detect alcohol use. The 

checkpoints were not subject to any standards, guidelines, or 

procedures established by the police department, and the officers were free to move the checkpoints from place to place at 

various times as they saw fit. The court cited Brown and found 

that a motorist has a reasonable expectation of privacy which 

is not subject to arbitrary invasions solely at the unfettered 

discretion of police officers in the field. State v. Crom, supra. 

The court found the checkpoints at issue unconstitutional 

because there was no plan made at the policymaking level of 

the police department or elsewhere, leaving the officers free 

to determine everything about the checkpoints and subjecting 

stopped motorists to arbitrary invasion at the officers’ unfettered discretion.

[8,9] More recently, in State v. Piper, 289 Neb. 364, 855 

N.W.2d 1 (2014), the Nebraska Supreme Court applied Brown 

v. Texas, supra, and cited Illinois v. Lidster, 540 U.S. 419, 124 

S. Ct. 885, 157 L. Ed. 2d 843 (2004), in determining that a 

stop of the defendant’s vehicle at a highway checkpoint conducted by the Nebraska State Patrol was reasonable. When 

the defendant in Piper stopped at the checkpoint, the officer 

observed that her eyes were bloodshot and watery and that 

the odor of alcohol emanated from the vehicle. Following the 

administration of field sobriety tests and a preliminary breath 

test, the defendant was arrested and subsequently convicted 

of DUI. On appeal, the court observed that a vehicle stop at a 

highway checkpoint effectuates a seizure within the meaning 

of the Fourth Amendment. State v. Piper, supra. The court, 

citing Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 

148 L. Ed. 2d 333 (2000), observed that the public interest 

served by a checkpoint is assessed according to the primary 

purpose of the checkpoint, that checkpoints with the primary purpose of uncovering evidence of ordinary wrongdoing 
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violate the Fourth Amendment. The court also noted that in 

Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. 

Ct. 2481, 110 L. Ed. 2d 412 (1990), the U.S. Supreme Court 

approved the use of sobriety checkpoints intended to prevent 

drunk driving. The Piper court considered the purpose of 

the checkpoint, the degree of intrusion, and the discretion of 

the officers. The court found permissible the purpose of the 

checkpoint, which was called a vehicle check but was funded 

by an alcohol enforcement grant and intended to target alcohol violations. The degree of intrusion was minimal as, absent 

signs of criminal activity, drivers were allowed to proceed 

after a brief check of their condition, license, vehicle registration, insurance, and certain aspects of the vehicle condition. 

In considering the officers’ discretion, the court noted that a 

highway checkpoint must be both authorized by an approved 

plan and conducted in a manner that complies with the plan 

and the policy established by the authority at the policymaking level. State v. Piper, supra. The court analyzed various 

aspects of the plan approving the checkpoint and of the officers’ application of the plan at the checkpoint, and it found 

that the plan complied with State Patrol policy and did not 

allow the officers to exercise unfettered discretion in administering the checkpoint. Accordingly, the court affirmed the 

defendant’s conviction and sentence.

The present case, while involving an information gathering 

stop by law enforcement, did not involve a stop at a checkpoint or roadblock and thus was not subject to the policy 

protections that were present with respect to the plan for the 

checkpoint in Piper. Accordingly, we turn to cases that have 

construed and applied Brown v. Texas, 443 U.S. 47, 99 S. Ct. 

2637, 61 L. Ed. 2d 357 (1979), and Illinois v. Lidster, supra, 

in other situations where vehicles have been detained by law 

enforcement for the purpose of gathering information. We have 

found no such cases in Nebraska. However, we do note the 

case of State v. Ryland, 241 Neb. 74, 486 N.W.2d 210 (1992), 

wherein the Nebraska Supreme Court found the stop of the 

defendant violated Fourth Amendment principles. In that case, 
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the officer located and stopped the defendant to get a statement 

from him about an accident that he witnessed the week before. 

When the officer made contact, he noticed signs of alcohol 

impairment by the defendant, and a DUI investigation, arrest, 

and conviction followed. The officer acknowledged that there 

was not an emergency situation. The court found that there 

was no probable cause or reasonable suspicion of criminal 

activity involved in the stop of the defendant.

In State v. Garrison, 911 So. 2d 346 (La. App. 2005), the 

Louisiana Court of Appeals held that a university police officer who heard a disturbance in the university’s offsite campus 

parking lot had reasonable grounds to stop the defendant. The 

officer was on patrol in a marked car and was driving near 

campus when he heard the sound of tires squealing from the 

offsite parking lot. The officer observed a driver approaching the area. The officer did not know if a crime had been 

committed, but he tried to get the driver’s attention so he 

could tell him to be careful. The officer felt the driver did 

not notice him, so he activated his car’s emergency lights and 

pulled the driver over. The officer asked the driver whether 

he had squealed his tires, and the driver denied having done 

so. Because the officer smelled alcohol, he initiated a driving 

while intoxicated investigation, which led to the arrest and 

conviction of the defendant. In finding the stop reasonable, 

the Louisiana court noted that the officer’s action in getting 

the defendant to stop was the only means available in getting 

his attention long enough to request information. The court 

also observed that it was not a checkpoint stop, that the officer 

was investigating a disturbance of public concern, and that the 

officer stopped a vehicle leaving the area to inquire about what 

its occupants might have seen or heard. The majority found 

the intrusion under those circumstances to be minimal. We 

note that the dissenting opinion in Garrison advocated that the 

investigation of the incident in question was not a disturbance 

of public concern.

In Gipson v. State, 268 S.W.3d 185 (Tex. App. 2008), 

police were dispatched to investigate a robbery at a retail 
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store parking lot and were given a description of the suspect. 

Upon arrival at the scene, an officer entered the parking lot 

with his vehicle’s lights and siren activated in the area where 

the suspect had been seen fleeing. He observed a car with 

several occupants preparing to exit the parking lot and positioned his vehicle to stop the car. He felt the car’s occupants 

might be potential suspects or witnesses to the robbery. As 

the officer exited his vehicle and approached, the driver stated 

he had witnessed the robbery. The officer then detained and 

questioned the occupants, one of which was the defendant. 

As he was doing so, another officer approached and based 

on the defendant’s demeanor initiated a pat-down search of 

all of the occupants. As a result of the pat-down search of 

the defendant, credit cards belonging to the robbery victim 

were recovered, and the defendant was arrested. In applying 

the reasoning employed in Illinois v. Lidster, 540 U.S. 419, 

124 S. Ct. 885, 157 L. Ed. 2d 843 (2004), the Texas Court 

of Appeals found that the occupants were lawfully detained. 

The court reasoned that the officer was investigating a specific and known crime, which was of grave public concern. 

The court determined that the stop advanced that concern as 

it was used to seek information from possible witnesses who 

were in the vicinity at the time of the crime in the area where 

the suspect was last seen. The court also found the liberty 

intrusion minimal as the officer had only blocked the car and 

started walking toward it, when the driver announced he was 

a witness. Accordingly, further detention of the car was a 

result of the need to question an actual witness, rather than a 

potential one.

Another case applying Illinois v. Lidster, supra, to a noncheckpoint stop and finding the stop reasonable was U.S. v. 

Brewer, 561 F.3d 676 (7th Cir. 2009). In that case, a police 

officer was responding at 2:30 a.m. to a dispatch report of a 

fight at an apartment complex when he heard what sounded 

like gunshots. As he approached the complex on the only 

access street, he was passed by a white sport utility vehicle 

(SUV) going the other way. No other vehicles were on the 
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road. He alerted other officers to watch for the SUV and 

proceeded into the apartment complex where bystanders told 

him the shots had come from a white SUV. The officer passed 

the information along to dispatch, but by that point, the SUV 

had already been stopped by a second officer. Upon inquiry 

by the second officer, the driver admitted he had two guns. 

Those guns, as well as additional weapons, were found in 

the SUV.

On appeal, the Seventh Circuit Court of Appeals observed 

that it was likely that whoever had fired the shots had left the 

complex. The court further observed that the fact the SUV 

was driving away from it on the only access street at a time 

when few vehicles were on the road reinforced the suspicion 

that even if the driver was not the gunman, he may well have 

information important for police safety. The court noted the 

analysis in Illinois v. Lidster, supra, and other roadblock cases 

and observed that this was not a case of random unconstrained 

conduct by the first officer in deciding that the first vehicle 

he encountered leaving the complex should be stopped. The 

court reasoned that, as in Lidster, officers had a compelling 

safety-related reason to question the driver of the first vehicle 

spotted leaving the complex where shots had been fired, and 

asking about a gun was the natural first question. The court 

concluded that the police acted reasonably given the dangerousness of the crime, the brief time between when the shots 

were fired and when the SUV was observed leaving the complex, the minimal intrusion on the SUV’s occupants, the need 

for police safety upon entering the complex, and the need to 

stop potential fleeing suspects.

Woldt urges us to find this case similar to State v. LaPlante, 

26 A.3d 337 (Me. 2011). In that case, the Maine Supreme 

Court considered the constitutionality of a state trooper’s stop 

of a vehicle solely to seek information about another vehicle 

the trooper observed speeding. As the trooper was turning 

around to pursue, a motorcycle passed him. The trooper was 

unable to locate the car but did reencounter the motorcycle. 

The trooper activated his vehicle’s lights and stopped the 
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motorcycle on the chance that the driver had seen what direction the car had gone. There was no independent reason for the 

trooper to stop the motorcycle. The motorcycle operator was 

able to identify where the car had turned. While the trooper 

was speaking to him, he noticed signs that the motorcycle 

operator might have been drinking and began an investigation 

that led to the operator’s arrest for DUI.

On appeal, the Maine Supreme Court cited Illinois v. 

Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 

(2004), and relevant state precedent and then applied the 

balancing test from Brown v. Texas, 443 U.S. 47, 99 S. Ct. 

2637, 61 L. Ed. 2d 357 (1979). The court noted other cases 

in which the investigation of serious crimes had been deemed 

sufficiently important to outweigh the liberty interests of 

stopped motorists but concluded that the investigation of 

a noncriminal speeding offense was not a matter of grave 

public concern. With respect to the second factor of the balancing test, the court discussed precedent, including Lidster, 

where courts have recognized that motorist stops may significantly advance the investigation of serious crimes when 

the stops take place in the vicinity of the crime and shortly 

after its occurrence. The Maine court reasoned that unlike 

witnesses to a hit-and-run accident or a robbery, motorists 

were unlikely to take much notice of speeding. The court 

reasoned further that the likelihood of motorists being able to 

assist law enforcement with a speeding investigation was not 

great. The court concluded that even though this particular 

defendant had provided information, stopping motorists as 

potential witnesses to speeding violations would not usually significantly advance such investigations. Finally, in 

examining the liberty interest intrusion, the court noted that 

cases upholding roadblock stops have found the degree of 

intrusion lessened when the stops are brief, unlikely to cause 

anxiety, and planned so as to minimize officer discretion. The 

court found none of those elements present in the stop of the 

motorcycle. The court found that the unplanned stop resulted 

solely from the officer’s discretion and was more likely to 
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cause alarm because the motorcycle operator had no basis to 

know the reason for or the likely length of the stop. Because 

there were no formal restrictions on the trooper’s discretion 

and the circumstances of the stop had significant potential to 

cause alarm and anxiety, the court found a significant interference with the operator’s liberty interest. See, also, State v. 

Whitney, 54 A.3d 1284 (Me. 2012) (random stop of motorist to seek information about single vehicle accident ruled 

invalid where officer was investigating crime of failure to 

report accident).

We now turn our attention to application of the balancing 

test from Brown v. Texas, supra, to the facts of the present 

case. The State argues that the stop of Woldt was reasonable 

because he was a potential witness to several possible crimes 

in this case, including criminal mischief, reckless driving, 

and DUI. We disagree and conclude that the matters under 

investigation under the circumstances of this case were not 

of grave public concern. Davie was investigating the report 

of a specific incident that had left traffic cones scattered 

along both sides of the highway, initially creating a potential 

hazard for other drivers. He was dispatched to investigate the 

involvement of a white pickup in the incident and was in the 

process of picking up the traffic cones when he heard squealing tires in the vicinity. Davie finished picking up the traffic 

cones, removing the hazard, before locating a white pickup 

nearby and making contact with its driver. Because Davie 

observed Woldt closely following Biggerstaff before the stop 

and because Woldt also stopped and waited with his pickup’s 

window down while Davie made contact with Biggerstaff, it 

was reasonable for Davie to believe that Woldt was a potential witness to any crimes by Biggerstaff and might have 

information for Davie that would advance his investigation of 

those crimes. However, Davie recognized Woldt, knew where 

he worked, and could have contacted Woldt at a later date if 

necessary. This was not a situation where Davie was investigating an ongoing threat to public safety committed by an 

unknown individual. Nor was it a situation where Davie was 
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faced with an unknown and mobile potential witness, whose 

help he needed to end an ongoing threat. By the time Davie 

stopped Woldt, he had already apprehended and detained 

Biggerstaff. While Davie did not know at that point whether 

Biggerstaff was the person responsible for knocking down the 

traffic cones, the degree of any public concern had certainly 

lessened by the time that he stopped Woldt. Further, while 

questioning Woldt may have advanced the investigation of 

any crimes committed by Biggerstaff, the evidence does not 

show that stopping and questioning Woldt at that time would 

have advanced the investigation to a greater degree than contacting him the following day at his workplace would have. 

Finally, although the degree of intrusion on Woldt’s liberty 

interest was not great, under the circumstances, we cannot say 

that it was outweighed by the degree of public concern and 

the extent to which questioning Woldt at that time advanced 

any investigation of Biggerstaff. Accordingly, the district 

court erred in affirming the county court’s overruling of 

Woldt’s motion to suppress on that basis.

[10] We note the State also argues that the stop was reasonable because there were objective bases for the stop, 

making Davie’s subjective motivation for the stop irrelevant. 

Specifically, the State argues that Davie could have stopped 

Woldt because he was following Biggerstaff too closely and 

because he parked his pickup so that it extended into the 

intersection. See State v. Sanders, 289 Neb. 335, 855 N.W.2d 

350 (2014) (traffic violation, no matter how minor, creates 

probable cause for officer to stop driver; if officer has probable cause to stop violator, stop is objectively reasonable 

and ulterior motivation is irrelevant). Davie testified that had 

Woldt not stopped initially, he would not have stopped him 

because he had no reason to do so. Upon redirect examination, Davie agreed that he probably could have cited Woldt 

for following Biggerstaff too closely. Neither the county court 

nor the district court addressed the issue of whether the stop 

of Woldt was reasonable on this basis. Accordingly, we do not 

address the issue further. An appellate court will not consider 
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an issue on appeal that was not presented to or passed upon 

by the trial court. State v. Huston, 285 Neb. 11, 824 N.W.2d 

724 (2013).

[11] Although we have concluded that Woldt’s motion to 

suppress should have been sustained, this determination does 

not preclude a new trial under the concepts of double jeopardy. The Double Jeopardy Clause does not forbid a retrial so 

long as the sum of all the evidence admitted by a trial court, 

whether erroneously or not, would have been sufficient to 

sustain a guilty verdict. See State v. Borst, 281 Neb. 217, 795 

N.W.2d 262 (2011).

CONCLUSION

The district court erred in affirming the county court’s 

overruling of Woldt’s motion to suppress. Accordingly, we 

remand to the district court with directions to reverse Woldt’s 

conviction and to remand the cause to the county court with 

directions to sustain the motion to suppress and for further 

proceedings consistent with this opinion.

Reversed and remanded with dire