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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

State of Nebraska, appellee, v.

Jonathan J. Rivera, appell

___ N.W.2d ___

Filed September 15, 2017. No. S-16-255.

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. 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.

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

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

guarantee against unreasonable searches and seizures.

4. ____: ____. For the protections of the Fourth Amendment to apply, a 

seizure must have occurred.

5. ____: ____. 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.

6. Police Officers and Sheriffs: Search and Seizure. A police officer may 

make a seizure by a show of authority and without the use of physical force.

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

Seizure. There is no seizure without actual submission; otherwise, there 

is at most an attempted seizure, so far as the Fourth Amendment is concerned. Thus, a seizure requires either a police officer’s application of 

physical force to a suspect or a suspect’s submission to an officer’s show 

of authority.

Nebraska Supreme Court Online Library

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

09/15/2017 09:10 AM CDT
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297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

8. Witnesses: Evidence: Appeal and Error. In reviewing a trial court’s 

factual findings for clear error, an appellate court does not pass on the 

credibility of witnesses or reweigh the evidence presented.

9. Police Officers and Sheriffs: Search and Seizure: Intent. A law 

enforcement officer’s subjective intent is irrelevant for determining 

whether a seizure did in fact occur.

10. Police Officers and Sheriffs: Search and Seizure: Motor Vehicles. 

A seizure does not occur simply because a law enforcement officer 

approaches an individual who voluntarily stopped his or her vehicle.

11. Judgments: Appeal and Error. A correct result will not be set aside 

merely because the lower court applied the wrong reasoning in reaching 

that result.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann and Bishop, Judges

appeal thereto from the District Court for Lancaster County, 

Andrew R. Jacobsen, Judge, on appeal thereto from the Co

Court for Lancaster County, Thomas W. Fox, Judge. Judgme

of Court of Appeals affirmed.

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Kelch, and Funke,

Cassel, J.

INTRODUCTION

The county court overruled Jonathan J. Rivera’s motion 

to suppress. In doing so, it applied the community caretaking exception to the Fourth Amendment.1

 On further review, 

we conclude that the initial police-citizen encounter did not 

amount to a seizure. Because the encounter began without a 

seizure, it was not necessary to invoke the community caretaking exception. We affirm the decision of the Nebraska Court of 

Appeals, albeit on different grounds.

1 See State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007).
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

BACKGROUND

Police-Citizen En

We first describe the scene of the encounter. At approximately 10:35 p.m. on May 24, 2014, two patrolling Nebraska 

Game and Parks Commission conservation officers came 

across two groups of people on opposite sides of a paved road. 

According to all of the testimony, the scene was very dark at 

the time. The road was within the Branched Oak Lake recreation area and had no lane markings but had grassy areas to 

each side.

Before Rivera arrived, the officers parked their marked 

patrol vehicle on the right side of the road and exited the 

vehicle to investigate. When one of the officers approached 

the groups, the other officer returned to the patrol vehicle to 

call dispatch.

While sitting inside the patrol vehicle, the officer noticed 

another vehicle, driven by Rivera, approach and stop behind 

the patrol vehicle. The vehicle then pulled off the road onto 

the grassy shoulder to the right of the patrol vehicle and 

advanced along the shoulder at a slow speed. According to 

both officers at the scene, if the vehicle had attempted to pass 

the patrol vehicle on the left, the vehicle would still have left 

the paved portion of the road.

Concerned because the vehicle was approaching the group 

on the side of the road, the officer exited and walked around 

the front of the patrol vehicle toward Rivera’s vehicle. The 

officer was wearing a uniform and displaying a badge, and 

he had a firearm on his person, though he did not draw or 

display it. Rivera saw the officer and stopped his vehicle as 

its front end was even with that of the patrol vehicle. At this 

time, the group of people on the side of the road was 15 to 20 

feet away.

The officer approached and informed Rivera that he would 

move the patrol vehicle if Rivera would wait a few minutes. During this interaction, the officer noticed that Rivera 

had bloodshot, watery eyes and slurred speech. When asked 
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297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

whether he had been drinking alcohol that evening, Rivera 

replied that he had. The officer then detained Rivera for a 

driving under the influence investigation which ultimately led 

to Rivera’s arrest.

Motion to Suppr

Before trial on his charge for driving under the influence, 

Rivera filed a motion to suppress evidence obtained as a result 

of the stop. The county court overruled the motion after finding that the arresting officer was operating in a community 

caretaking function when he made contact with Rivera. It later 

overruled Rivera’s renewed motion to suppress at a bench trial 

and found Rivera guilty of driving under the influence. The 

county court revoked Rivera’s driver’s license for 18 months, 

imposed a $1,000 fine, sentenced him to 30 days’ imprisonment and 24 months’ probation, and ordered that he perform 

20 hours of community service and pay all associated costs 

and fees.

Appellate Histo

Rivera appealed to the district court and alleged that the 

county court erred in overruling his motion to suppress by 

concluding the arresting officer had reasonable grounds to 

detain him. The district court affirmed the judgment of the 

county court after concluding that it did not err in determining 

that the community caretaking exception applied to the policecitizen encounter.

On further appeal to the Court of Appeals, Rivera advanced 

the same argument and assigned that the district court erred in 

affirming the denial of his motion to suppress. In a split decision, the Court of Appeals affirmed the district court’s ruling.2

We granted Rivera’s petition for further review to address a 

perceived expansion of the community caretaking exception.

2 State v. Rivera, No. A-16-255, 2017 WL 977345 (Neb. App. Mar. 14, 

2017) (selected for posting to court website).
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

ASSIGNMENT OF ERROR

Rivera assigns that the Court of Appeals erred by applying 

the community caretaking exception to the Fourth Amendment 

in affirming the county court’s order overruling his motion 

to suppress.

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

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 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.5

ANALYSIS

Rivera asserts that the Court of Appeals erred by finding the community caretaking exception applicable to the 

police-citizen encounter in question. He argues in his petition for further review that in doing so, the Court of Appeals 

“broadly expanded the community caretaking exception to 

unprecedented levels in direct contradiction to [the Nebraska 

Supreme] Court’s explicit mandate that the community caretaking exception be narrowly and carefully applied in order to 

prevent its abuse.”6

[3,4] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution guarantee against 

3 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).

4 Id.

5 Id.

6 Citing State v. Bakewell, supra note 1.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

unreasonable searches and seizures.7 But, for the protections 

of the Fourth Amendment to apply, a seizure must have 

occurred.8 Therefore, we must first review the factual findings of the trial court for clear error and determine whether 

a seizure within the meaning of the Fourth Amendment actually occurred.

[5-7] 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.9 A police officer may make a 

seizure by a show of authority and without the use of physical force.10 However, there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so 

far as the Fourth Amendment is concerned.11 Thus, a seizure 

requires either a police officer’s application of physical force 

to a suspect or a suspect’s submission to an officer’s show 

of authority.12

It is apparent from the record that Rivera voluntarily stopped 

after seeing the uniformed officer approach the front of his 

vehicle. Regarding Rivera’s stop, the trial court found:

To ensure the safety of the group of people near the 

front of the patrol pickup, [the officer] then got out of 

his patrol pickup, walked around the front of the patrol 

pickup to the passenger front side, and toward [Rivera’s] 

truck that was attempting to pass.

[Rivera’s] truck, which was attempting to pass on the 

passenger side of the patrol pickup, then stopped. [The 

officer] did not step out in front of [Rivera’s] truck as it 

was attempting to pass.

7 State v. Rogers, supra note 3.

8 See State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).

9 State v. Rogers, supra note 3.

10 State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).

11 Id.

12 Id.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

. . . At no time did [the officer] activate the emergency 

overhead lights or siren on the patrol pickup, nor did [the 

officer] honk the horn of the patrol pickup to get [Rivera] 

to stop his truck. [The officer] did not draw or display 

his gun. [Rivera’s] truck was not blocked in by the patrol 

pickup and was able to keep driving forward if it avoided 

the people in the area.

[8] There was conflicting testimony as to whether the police 

officer raised his hand to indicate Rivera should stop. But the 

trial court did not make a specific finding as to whether the 

officer made such a gesture. Instead, its detailed account of the 

encounter suggests that the court implicitly found the officer 

did not make any gesture to direct Rivera to stop. At oral argument, Rivera asserted that the sentence in the court’s analysis 

stating the officer “was operating in a community caretaking 

function when he made . . . contact with [Rivera] and caus[ed] 

[Rivera] to stop his truck” was a specific finding that Rivera 

was in fact stopped. To the contrary, we view that sentence 

as a conclusion of law, not as a finding of historical fact. In 

reviewing the county court’s findings, we do not pass on the 

credibility of witnesses or reweigh the evidence presented.13

There was no clear error in the county court’s findings of historical fact.

[9,10] Though the officer admittedly intended to stop 

Rivera’s vehicle, his subjective intent is irrelevant for determining whether a seizure did in fact occur.14 The officer did 

not gesture at Rivera to stop or otherwise restrict his movement by blocking his vehicle. Therefore, we cannot say that 

a reasonable person would have believed that he or she was 

not free to leave. And, Rivera voluntarily stopped his vehicle; 

a seizure did not occur simply because the officer approached 

him and told him he would move his patrol vehicle in a 

13 See State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015).

14 See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. RIVERA

Cite as 297 Neb. 709

few minutes.15 The interaction between the officer and Rivera 

began as a “first-tier” encounter.16

Based on the officer’s observations of Rivera’s bloodshot, 

watery eyes and slurred speech, the “first-tier” encounter 

promptly escalated to “second-tier.”17 The circumstances then 

clearly established reasonable suspicion that a crime was being 

committed. Accordingly, the detention that followed was constitutionally permitted.

[11] Because there was no seizure at the commencement 

of the encounter, there was no need to apply the community 

caretaking exception. We reiterate that the exception is to be 

“narrowly and carefully applied.”18 A correct result will not 

be set aside merely because the lower court applied the wrong 

reasoning in reaching that result.19 Although the county court 

unnecessarily resorted to the community caretaking exception, 

it correctly denied Rivera’s motion to suppress. Likewise, the 

district court and Court of Appeals were correct in affirming 

the decision of the trial court, despite having followed it down 

the wrong path.

CONCLUSION

Because no seizure occurred at the commencement of the 

encounter, it was not necessary to resort to the community 

caretaking exception. Although the lower courts began down 

the wrong path, they reached the correct result. Accordingly, 

we affirm the decision of the Court of Appeals.

Affirmed

15 See, e.g., State v. Hedgcock, supra note 10.

16 See State v. Rogers, supra note 3, 297 Neb. at 269, 899 N.W.2d at 631.

17 See id.

18 State v. Bakewell, supra note 1, 273 Neb. at 377, 730 N.W.2d at 338.

19 State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).