Opinion
No. A-07-1264.
Filed June 24, 2008.
INBODY, Chief Judge, and SIEVERS and CARLSON, Judges.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. OF PRAC. 2E.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
INTRODUCTION
After denying Terry J. Kurtzhals' motion to suppress, the Lancaster County Court found him guilty of the offenses of refusing to comply with a lawful order of a police officer and opposing, hindering, delaying, or interrupting a police officer in making an arrest. Kurtzhals appealed to the Lancaster County District Court which reversed the judgment of the county court and set aside Kurtzhals' convictions and sentences. We granted the State's application for leave to file an appeal and now order this case submitted without oral argument pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2006).
STATEMENT OF FACTS
Lincoln police officer Alan Grell was on routine patrol in his cruiser when he observed Kurtzhals walking eastbound on the sidewalk in the area of Capitol Parkway and E Street in Lincoln, Nebraska, at approximately 1:20 a.m. on January 29, 2007. Grell could see that Kurtzhals was carrying a large square object in one hand and a large black plastic bag in his other hand, but Grell could not tell what the items were. Grell was aware that there had been several residential burglaries and businesses broken into in that area during the previous 6 months. Grell attempted to stop Kurtzhals twice. Kurtzhals informed Grell that he did not have to stop if he did not want to and continued walking down the sidewalk at a fast pace.
Grell caught up to Kurtzhals and told him five or six times, "come here, stop, I need to talk to you." When Kurtzhals did not respond, Grell grabbed Kurtzhals by the arm, then Kurtzhals yelled to "[g]et off of him," Kurtzhals' muscles tensed up, and he started to spin toward Grell. Grell could see that the large item that Kurtzhals was holding was a couch cushion, but he did not know what was in the black bag that Kurtzhals was holding. Concerned for his own safety, Grell told Kurtzhals several times to put his hands behind his back, but Kurtzhals did not comply. Eventually, Grell told Kurtzhals that he was under arrest and Kurtzhals resisted Grells' verbal and physical attempts to place Kurtzhals' hands in view and to be handcuffed.
Kurtzhals was charged with refusing to comply with a order of a police officer made in the performance of official duties at the scene of an arrest, accident, or investigation, in violation of § 9.08.050 of the Lincoln Municipal Code and opposing, hindering, delaying, or interrupting a police officer in making an arrest in violation of § 9.08.030 of the Lincoln Municipal Code. Kurtzhals filed a motion to suppress "the evidence obtained as a result of the contact and detention of [Kurtzhals] by officers of the Lincoln Police Department" because the stop was made without legal justification and was in violation of Kurtzhals' constitutional rights. The suppression hearing and trial were held at the same time by agreement of the parties and the court. In a journal entry, the county court overruled the motion to suppress and found Kurtzhals guilty of the charged offenses. The court did not make any findings of fact relating to the motion to suppress.
Kurtzhals appealed to the district court alleging that the county court erred in overruling his motion to suppress, in failing to find the evidence insufficient to convict him, in failing to make factual findings on the motion to suppress, and in failing to find the city ordinances unconstitutional as applied to him. On October 17, 2007, the Lancaster County District Court reversed the decision of the county court finding that the county court should have granted Kurtzhals' motion to suppress and that the evidence was insufficient to convict him. Thus, the district court reversed the judgment of the county court and set aside Kurtzhals' convictions and sentences. Based upon these findings, the district court did not reach the constitutional issues raised by Kurtzhals. The State filed an application for leave to file an appeal pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2006), which application we granted.
ASSIGNMENTS OF ERROR
On appeal, the State's assignments of error can be restated into the following claim: The district court erred in finding that the county court should have sustained Kurtzhals' motion to suppress and in reversing Kurtzhals' convictions. Kurtzhals has cross-appealed, contending that the district court erred in failing to address the constitutional issues raised in his statement of errors.
STANDARD OF REVIEW
A trial court's ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Manning, 263 Neb. 61, 638 N.W.2d 231 (2002); State v. Puls, 13 Neb. App. 230, 690 N.W.2d 423 (2004); State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
When reviewing a court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search, ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to inferences drawn from those facts by the trial judge. State v. Puls, supra; State v. Petersen, supra.
When reviewing a trial court's ruling on a motion to suppress evidence, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. Manning, supra; State v. Puls, supra; State v. Petersen, supra.
ANALYSIS
Motion to Suppress.
The State contends that the district court erred in its determination that the county court should have sustained Kurtzhals' motion to suppress. Upon our review of the record, we noted that the county court denied Kurtzhals' motion to suppress by setting forth in its journal entry "Motion to Suppress — overruled." No factual findings were made by the county court regarding the motion to suppress.
In State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996), the Nebraska Supreme Court held that district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress, with the degree of specificity required varying from case to case. In State v. Myers, 258 Neb. 272, 281, 603 N.W.2d 390, 399 (1999), the Supreme Court clarified that the "purpose in Osborn was to direct the trial courts to articulate findings of fact, which may be indispensable to a proper appellate review." We have noted that requiring county courts to comply with the dictates of Osborn is appropriate. State v. Puls, 13 Neb. App. 230, 690 N.W.2d 423 (2004).
In the instant case, the county court did not make any findings of fact either in writing or from the bench. When reviewing a determination of reasonable suspicion to conduct an investigatory stop, findings of fact are reviewed for clear error, giving due weight to inferences drawn from those facts by the trial judge. State v. Puls, supra; State v. Petersen, supra. Since there were no findings of fact made and the county court did not articulate the inferences that it drew from the facts in its decision to overrule Kurtzhals' motion to suppress, the findings of fact in this case are clearly insufficient for proper appellate review. Since the district court was acting as an appellate court, it was to review the county court's factual findings for clear error, giving due weight to inferences drawn from those facts by the trial judge. The district court could not do this, since there were no factual findings made by the county court to review. Therefore, the district court's order must be reversed and vacated and the cause remanded with directions to remand to the county court for that court to set forth factual findings related to Kurtzhals' motion to suppress.
Kurtzhals' Cross-Appeal.
Kurtzhals' cross-appeal alleges that the district court erred in failing to address the constitutional issues raised in his statement of errors. Kurtzhals did raise the issue that the county court erred in failing to find the city ordinances unconstitutional as applied to him in his statement of errors to the district court. However, there is no suggestion in the record that this argument was presented to the county court. An issue not presented to or decided by the trial court is not appropriate for consideration on appeal. Ameritas Inv. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 (2005); Kubik v. Kubik, 268 Neb. 337, 683 N.W.2d 330 (2004); State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000). Therefore, this assignment of error is not properly before us.
CONCLUSION
Having determined that the county court did not comply with the dictates of State v. Osborn, supra; State v. Myers, supra; and State v. Puls, supra, by failing to articulate its findings of fact in denying Kurtzhals' motion to suppress, the factual findings in this case are clearly insufficient for proper appellate review, both by the district court, acting as an intermediate appellate court, and by this court. Therefore, we reverse and vacate the decision of the district court and remand the cause with directions to remand to the county court for that court to set forth factual findings related to Kurtzhals' motion to suppress.
REVERSED AND VACATED, AND CAUSE REMANDED WITH DIRECTIONS.