NE: “Stop” of already stopped car as witness to possible DWI was reasonable on totality

Defendant was already stopped behind a car that the police suspected the driver of drunk driving because of knocked down traffic cones. The officer recognized defendant as a city employee, but he wanted to talk to him because he wanted to know what defendant also saw. Defendant was under the influence, too. Under Brown v. Texas, the court analyzes the totality and finds the continuation of the already stopped car reasonable. State v. Woldt, 293 Neb. 265, 2016 Neb. LEXIS 51 (April 8, 2016):

(d) Balancing Brown Factors

In balancing the Brown factors, the Court of Appeals found that the stop was not reasonable. But when considering, de novo, the Brown balancing test in light of the above, we disagree. The public concern was not just the traffic cone hazard; rather, the concern was driving under the influence, for which Biggerstaff was under investigation. This weighs heavily in favor of the reasonableness of the stop.

And stopping Woldt to see if he had any information about Biggerstaff’s possible crimes would advance Davie’s investigation. This is particularly so on these facts, where Woldt also stopped when Davie pulled Biggerstaff over. It was reasonable for Davie to conclude that because Woldt stopped, he had information to provide to Davie. Again, this weighs in favor of reasonableness.

Finally, the interference was slight, because Woldt was already stopped, weighing in favor of reasonableness.

We note that in State v. Ryland, this court held that a stop to obtain a statement from the defendant about an accident the defendant had witnessed 1 week earlier was not reasonable because the officer lacked reasonable suspicion or probable cause to stop the defendant. Ryland is distinguishable, both factually and because it was decided prior to the authorization in Lidster of information gathering stops. To the extent that Ryland holds that an information gathering stop requires reasonable suspicion or probable cause, it is disapproved.

When all the factors are weighed, we conclude that the stop was reasonable under Brown v. Texas. We therefore hold that the Court of Appeals erred in its balancing of the Brown factors. Because we conclude that the stop was reasonable under Brown, we need not address the State’s alternative grounds that the stop was otherwise reasonable.