State v. Avey

STATE v. AVEY 	233
Cite as 288 Neb. 233
State of NebraSka, appellee, v.
SteveN D. avey, appellaNt.
846 N.W.2d 662
Filed May 30, 2014. 	No. S-13-666.
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 crimi-
nal convictions in county court, an appellate court applies the same standards of
review that an appellate court 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 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 inde-
pendently of the trial court’s determination.
7. Constitutional Law: Search and Seizure. It is axiomatic that for the protections
of the Fourth Amendment to apply, a seizure must have occurred.
8. ____: ____. 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.
Appeal from the District Court for Lancaster County, JohN
a. C olborN, Judge, on appeal thereto from the County Court
for Lancaster County, laurie yarDley, Judge. Judgment of
District Court affirmed.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent
for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:34 AM CST

234 	288 NEBRASKA REPORTS
heaviCaN, C.J., Wright, C oNNolly, StephaN, MCC orMaCk,
M iller-lerMaN, and CaSSel, JJ.
M iller-lerMaN, J.
NATURE OF CASE
Steven D. Avey appeals the order of the district court for
Lancaster County which affirmed his convictions in the county
court for Lancaster County for driving under the influence
(DUI), third offense, and for failure to yield the right-of-way.
At issue in the county court and on appeal to the district court
were the merits of Avey’s motion to suppress in which he
claimed to have been seized in violation of Fourth Amendment
protections when, at a police officer’s request, he returned to
the scene of a motor vehicle accident. Both courts rejected
Avey’s claim, as do we. Accordingly, we affirm.
STATEMENT OF FACTS
Avey was involved in an accident on the evening of August
10, 2012. Avey pulled his vehicle out of a parallel parking
space along 13th Street in Lincoln, Nebraska, and collided
with a vehicle driven by Benjamin Howard. Avey got out
of his vehicle and made contact with Howard. Avey gave
Howard information, including his name, address, and tele-
phone numbers, as well as his insurance information. Howard
did not have his insurance information to give to Avey. After
Howard told Avey that he had called the police and that they
were on their way, Avey told Howard that he was going
to leave because he had already given Howard the neces-
sary information.
Shortly after Avey left, Officer Joseph Fisher arrived at the
accident scene and interviewed Howard. Howard gave Fisher
the information that Avey had given him, including Avey’s
telephone number. Fisher called Avey, asked him whether he
had been involved in an accident, and asked him to return to
the scene, which Avey did. Fisher made contact with Avey at
the driver’s side door of Avey’s vehicle. Fisher observed that
Avey had watery eyes, and he noticed a moderate smell of
alcohol. Fisher performed field sobriety tests on Avey, and,
based on the results of the tests, Avey was cited for DUI.

STATE v. AVEY 	235
Cite as 288 Neb. 233
Avey was also cited for failure to yield in connection with
the accident.
The State filed a complaint against Avey in the county
court for Lancaster County charging him with DUI in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2010) and with
failure to yield the right-of-way after stopping or parking in
violation of Neb. Rev. Stat. § 60-6,150 (Reissue 2010). The
State alleged in the complaint that Avey had two prior convic-
tions for DUI.
Avey filed a motion to suppress evidence obtained as a
result of what he asserted was a seizure in violation of the
Fourth Amendment. Avey contended that he was seized when
Fisher called him and required him to return to the accident
scene. At a hearing on the motion to suppress, Fisher testified
that he had not ordered Avey to return to the scene but that he
had merely requested that he return. Fisher wanted Avey to
return, because Fisher estimated that the damage to Howard’s
vehicle was over $1,000 which would require the filing of a
report with the State. At the time he called Avey, Fisher did
not suspect that alcohol had been involved and instead he sus-
pected that Avey was guilty of negligent driving, which was a
traffic infraction. Fisher conceded on cross-examination at the
suppression hearing that he did not recall the exact words he
said when he called Avey and that it was “possible” that he had
told Avey that if he did not return he would be cited for leaving
the scene of an accident.
Avey testified at the suppression hearing that Fisher called
and told him that he needed to return to the accident scene.
Avey testified that he asked Fisher what would happen if he
did not return and that Fisher replied that he would be charged
with leaving the scene of an accident. When asked at the
hearing whether he felt compelled to return, Avey replied, “I
thought it would be a good idea.”
At the conclusion of the hearing, the county court announced
its decision overruling the motion to suppress. In announcing
its decision, the county court found that “it was [Avey’s] choice
to get in the car to come down” and that Avey “could have told
the officer [he] wasn’t feeling well, or he didn’t want to” but
Avey did not give Fisher “any indication that he didn’t want

236 	288 NEBRASKA REPORTS
. . . to come down or couldn’t come down.” The county court
further stated that because it appeared that Avey “had commit-
ted at least a traffic infraction, and was going to get a ticket if
he came back down, . . . it was reasonable for the officer to call
him to come back down and complete the investigation.” The
county court stated that it did not know of any case law that
“says a phone call asking him to come back down to the scene
to finish conducting an investigation is a seizure.” The county
court concluded that there was not a seizure, and it therefore
overruled the motion to suppress.
The case proceeded to a bench trial. The parties stipulated
to the evidence subject to Avey’s renewed motion to suppress,
which the county court again overruled. The county court
found Avey guilty of DUI and of failure to yield. The county
court thereafter found the DUI to be a third offense and sen-
tenced Avey to 30 days in jail, 3 years’ probation, a $1,000
fine, and a 2-year license revocation for the DUI conviction.
The county court imposed a $75 fine for failure to yield.
Avey appealed his convictions and sentences to the district
court. He claimed that the county court had erred when, inter
alia, it overruled his motion to suppress. Avey argued to the
district court that he was seized when he was required to return
to the scene of the accident. The district court rejected Avey’s
claims on appeal and affirmed Avey’s county court convictions
and sentences.
Avey appeals the district court’s affirmance of his county
court convictions.
ASSIGNMENT OF ERROR
Avey claims that the district court erred when it affirmed the
county court’s order overruling his motion to suppress.
STANDARDS 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. McCave, 282 Neb. 500, 805
N.W.2d 290 (2011). Both the district court and a higher appel-
late court generally review appeals from the county court for

STATE v. AVEY 	237
Cite as 288 Neb. 233
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 we independently review questions
of law in appeals from the county court. Id. When deciding
appeals from criminal convictions in county court, we apply
the same standards of review that we apply to decide appeals
from criminal convictions in district court. Id.
[6] In reviewing a trial court’s ruling on a motion to sup-
press 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 trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. Au, 285 Neb. 797, 829 N.W.2d
695 (2013).
ANALYSIS
Avey claims that the district court erred when it affirmed the
county court’s order overruling Avey’s motion to suppress. We
conclude that the county court did not err when it concluded
that there was no seizure that would have triggered Fourth
Amendment protections and that therefore the district court did
not err when it affirmed the order overruling Avey’s motion
to suppress.
[7,8] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures. State v. Wiedeman, 286
Neb. 193, 835 N.W.2d 698 (2013). The present case involves
an allegation of an unreasonable seizure. With respect to such
a claim, it is axiomatic that for the protections of the Fourth
Amendment to apply, a seizure must have occurred. State v.
Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009). 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. Id.

238 	288 NEBRASKA REPORTS
To determine whether an encounter between an officer and
a citizen reaches the level of a seizure under the Fourth
Amendment, we employ the analysis set forth in State v.
Van Ackeren, 242 Neb. 479, 486-87, 495 N.W.2d 630, 636
(1993), in which we described the three levels, or tiers, of
police-citizen encounters as follows:
“The first tier of police-citizen encounters involves
no restraint of the liberty of the citizen involved, but
rather the voluntary cooperation of the citizen is elicited
through non-coercive questioning. This type of contact
does not rise to the level of a seizure and therefore
is outside the realm of [F]ourth [A]mendment protec-
tion. . . . The second category, the investigative stop, is
limited to brief, non-intrusive detention during a frisk
for weapons or preliminary questioning. This type of
encounter is considered a ‘seizure’ sufficient to invoke
[F]ourth [A]mendment safeguards, but because of its less
intrusive character requires only that the stopping offi-
cer have specific and articulable facts sufficient to give
rise to reasonable suspicion that a person has committed
or is committing a crime. . . . The third type of police-
citizen encounters, arrests, are characterized by highly
intrusive or lengthy search or detention. The [F]ourth
[A]mendment requires that an arrest be justified by prob-
able cause to believe that a person has committed or is
committing a crime.”
Quoting United States v. Armstrong, 722 F.2d 681 (11th
Cir. 1984).
In his motion to suppress, Avey asserted that he was seized
in violation of the Fourth Amendment when Fisher called him
and told him that he needed to return to the scene of the acci-
dent. Because it concluded that Avey was not seized for pur-
poses of triggering Fourth Amendment protections, the county
overruled the motion to suppress.
In reaching its conclusion, the county court made factual
findings that Fisher’s telephone call to Avey was “a phone
call asking him to come back down to the scene to finish con-
ducting an investigation” and that Avey’s return to the scene
in response to the call was his “choice to get in the car to

STATE v. AVEY 	239
Cite as 288 Neb. 233
come down.” The county court effectively found that Fisher’s
call to Avey was a request and that Avey willingly returned to
the scene rather than being compelled to do so. These find-
ings are supported by testimony of both Fisher and Avey at
the suppression hearing.
The record shows that Fisher testified that he asked Avey
to return and that he did not order Avey to return. Although
Avey testified that Fisher said that Avey would be charged
with leaving the scene of an accident if he did not return and
Fisher testified that such comment was possible, there was
contrary evidence that it was Avey’s choice to return. Avey
was asked by his attorney, “[D]id you feel compelled to come
back . . . ?” Rather than simply agreeing with this description,
Avey replied, “I thought it would be a good idea.” Given the
testimony, we determine that the county court’s findings that
Fisher asked Avey to return and that Avey made a choice to
return were not clear error.
Based on these findings, the county court made the legal
conclusion that there was no seizure that would trigger Fourth
Amendment protections. We agree with this legal conclusion.
In State v. Burdette, 259 Neb. 679, 702, 611 N.W.2d 615, 633
(2000), we stated that a defendant who voluntarily accom-
panied officers to the sheriff’s headquarters was not seized
“because one who voluntarily accompanies the police for ques-
tioning has not been seized for Fourth Amendment purposes.”
By the same reasoning, we conclude as a matter of law that
Avey was not seized when he voluntarily returned to the scene
for questioning with regard to the accident.
We further note that the testimony shows that Avey decided
to return based on a single telephone call of relatively brief
duration rather than circumstances indicating that Fisher made
persistent requests or pressured Avey to return. Other courts
commenting on the significance of police telephone calls to
identified suspects have determined that such contact, even if
abusive, does not constitute a restraint on the suspect’s free-
dom so as to elevate the call into a seizure for purposes of the
Fourth Amendment. E.g., Rodgers v. Lincoln Towing Service,
Inc., 771 F.2d 194 (7th Cir. 1985). Facts such as the ease with
which an individual can hang up and sometimes the distance

240 	288 NEBRASKA REPORTS
of the caller are cited as factors inconsistent with restraint. Id.
We agree that these are relevant considerations.
Given the voluntariness with which Avey returned to the
scene and the facts surrounding the telephone call, in the pres-
ent case, we conclude there was no seizure. Fourth Amendment
protections were not triggered, and there was no constitutional
violation requiring suppression of evidence.
CONCLUSION
We conclude that under the facts as found by the county
court, Avey was not seized for Fourth Amendment purposes,
and that therefore, the county court did not err when it over-
ruled his motion to suppress and the district court did not err
when it affirmed this ruling. We affirm the district court’s deci-
sion which affirmed Avey’s convictions and sentences.
affirMeD.
M iChael DaNielS, appellee, v. ruby
M alDoNaDo -MoriN, appellaNt.
847 N.W.2d 79
Filed May 30, 2014. 	No. S-13-738.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Parental Rights: Child Custody. The custodial parent has the right to travel
between states and the right to migrate, resettle, find a new job, and start a
new life.
4. Child Custody. To prevail on a motion to remove a minor child to another
jurisdiction, the custodial parent must first satisfy the court that he or she has a
legitimate reason for leaving the state. After clearing that threshold, the custodial
parent must next demonstrate that it is in the child’s best interests to continue
living with him or her.
5. ____. The paramount consideration on a motion to remove a child to another
jurisdiction is whether the proposed move is in the best interests of the child.