State v. Wenke

Fin. Co., Inc. court also highlights this presumption of regular‑
ity which is afforded to the actions of public officials, includ‑
ing notaries, and concludes that the notary’s acknowledgment
was subject to such a presumption.7 In Nebraska, like in Idaho,
in the absence of evidence to the contrary, it may be presumed
that public officers faithfully perform their official duties and
that absent evidence showing misconduct or disregard of law,
the regularity of official acts is also presumed.8 As discussed
above, there is no evidence showing that Wilke did not sign
the document in the presence of the notary. There is simply no
showing of any misconduct or disregard of law with respect to
the notary’s actions.
For the above reasons I would conclude that the certificate
of acknowledgment in this case substantially complies with
Nebraska law and would apply the presumption of regularity to
the actions of the notary. As such, I would find that the omis‑
sion of Wilke’s name from the certificate of acknowledgment
was not fatal to the sworn report in this case. I would therefore
reverse the decision of the district court and uphold the DmV’s
revocation of Johnson’s driver’s license.
7 See id.
8 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
stAte of nebrAskA, Appellee , v.
mArvin r. Wenke , AppellAnt.
758 N.W.2d 405
Filed December 12, 2008. 	No. S‑07‑1036.
1. Motions to Suppress: Search and Seizure: Appeal and Error. In considering
a trial court’s ruling on a motion to suppress evidence obtained by a search, an
appellate court first determines whether the search was illegal. If so, the court
must determine whether the evidence that the defendant seeks to suppress is suf‑
ficiently attenuated from the illegal search.
2. Motions to Suppress: Appeal and Error. An appellate court will uphold the
trial court’s ruling on a motion to suppress unless the trial court’s findings of fact
are clearly erroneous. In making this determination, the appellate court does not
reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes
STATE v. WENkE 	901
Cite as 276 Neb. 901
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

the trial court as the finder of fact and considers that the trial court observed the
witnesses testifying in regard to such motions.
3. Motions to Suppress: Probable Cause: Appeal and Error. In reviewing a trial
court’s ruling on a motion to suppress, an appellate court reviews the ultimate
determination of probable cause de novo and reviews the findings of fact made
by the trial court for clear error, giving due weight to the inferences drawn from
those facts by the trial court.
4. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub‑
ject only to a few specifically established and well‑delineated exceptions, which
must be strictly confined by their justifications.
5. Arrests: Warrants: Search and Seizure: Probable Cause. The validity of a
search incident to a lawful arrest depends on the legality of the arrest itself.
Where an arrest is pursuant to a warrant, the validity of the arrest turns on
whether the county court had probable cause to issue the arrest warrant.
Appeal from the District Court for holt County: mArk d.
kozisek, Judge. Affirmed.
Ronald E. Temple, of Fitzgerald, Vetter & Temple, for
appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger
for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
stephAn, J.
The issue in this case is whether marvin R. Wenke was
lawfully arrested for nonpayment of fines, thereby justifying a
warrantless search of his person incident to the arrest.
BACkGROUND
In December 2004, Wenke was cited in holt County for
operating a motor vehicle without a valid license. he pled
guilty and was sentenced to pay a fine and court costs total‑
ing $91.50. After paying $25.50, Wenke applied for and was
granted an extension of time to pay the remaining $66. In the
extension agreement, he agreed to pay in full by January 26,
2005. The agreement provided that if the judgment was not
paid by that date, Wenke would be required to appear before
the county court “to show cause why [he] should not be
902 	276 NEBRASkA REPORTS

committed to jail and/or fined for contempt for non‑payment
of judgment.”
On January 27, 2005, the holt County Court mailed writ‑
ten notice to Wenke that he had failed to pay the amount due.
The notice required him to either pay the fine immediately or
appear before the court on February 9. The notice stated that
failure to comply with its provisions could result in a warrant
being issued for Wenke’s arrest.
On February 10, 2005, the county court issued a “Warrant/
Order of Commitment” directed to the holt County sheriff or
any duly authorized law enforcement officer. This document
stated that Wenke had failed to pay the judgment and costs or
show cause why he should not be committed to jail for failing
to make payment as ordered. The document further stated:
[Wenke] shall be allowed to pay all judgments for fines
and costs set out below. [Wenke] shall be released from
custody upon payment of the same, PLUS the cost of
service of this warrant. Upon failure to make payment
of the fines and costs [Wenke] shall be delivered to the
jailer of holt County to stand committed to serve [his]
judgment(s) and costs at the rate provided by law.
On February 12, 2005, Officer mike Parks of the O’Neill
Police Department was dispatched to a local bar to investigate
a report of minors consuming alcohol. Parks, who had issued
the December 2004 citation to Wenke, observed him in the
bar and recalled seeing a copy of the warrant described above
at the police station. Parks understood the document to be “a
warrant for . . . Wenke’s arrest” for “[f]ailing to make payment
on fines and costs in the County Court of holt County.” Parks
asked Wenke to step outside with him, and Wenke complied.
Outside the bar, Parks informed Wenke of the warrant, told
him that he was under arrest, and placed him in handcuffs.
Parks did not give Wenke an opportunity to pay the fine prior
to arresting him, because, in Parks’ words, “I don’t collect
money; I arrest people.” his standard procedure when arrest‑
ing someone on a warrant for nonpayment of fines is to trans‑
port the person to the county jail, where payment of the fine
can be made.
STATE v. WENkE 	903
Cite as 276 Neb. 901

Immediately after arresting Wenke, Parks conducted a search
of his person. Inside a cigarette box which he removed from
Wenke’s trouser pocket, Parks found a small straw containing a
substance later confirmed to be methamphetamine. Wenke was
subsequently charged by information with one count of posses‑
sion of a controlled substance, methamphetamine, a Class IV
felony.1 he filed a motion to suppress the evidence seized by
Parks during the search of his person.
After conducting an evidentiary hearing, the district court
denied the motion. In its order, the court noted that Wenke
“does not argue the court lacked authority to issue the warrant
or that the warrant itself was invalid. . . . [Wenke] argues the
officer should have given [him] the opportunity to refuse to
make payment before he was arrested.” The court found this
argument to be without merit, because Wenke had already been
given ample opportunity to pay or show cause why he did not
pay the fine before the warrant was issued.
Wenke was convicted after a bench trial, sentenced to
imprisonment for 60 days, and fined $250 plus court costs. his
appeal was dismissed due to his lawyer’s failure to file a brief.
Wenke was granted a new direct appeal in a postconviction
proceeding, and execution of the sentence was stayed pending
appeal. This appeal was then timely filed. We moved the case
to our docket pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.2
ASSIGNmENT OF ERROR
Wenke’s sole assignment of error is that the trial court erred
in overruling his motion to suppress.
STANDARD OF REVIEW
[1] In considering a trial court’s ruling on a motion to sup‑
press evidence obtained by a search, we first determine whether
the search was illegal. If so, we must determine whether the
1 See Neb. Rev. Stat. § 28‑416(3) (Cum. Supp. 2006).
2 See Neb. Rev. Stat. § 24‑1106(3) (Reissue 1995).
904 	276 NEBRASkA REPORTS

evidence that the defendant seeks to suppress is sufficiently
attenuated from the illegal search.3
[2] We will uphold the trial court’s ruling on a motion to
suppress unless the trial court’s findings of fact are clearly
erroneous. In making this determination, we do not reweigh
the evidence or resolve conflicts in the evidence, but, rather,
recognize the trial court as the finder of fact and consider that
the trial court observed the witnesses testifying in regard to
such motions.4
[3] In reviewing a trial court’s ruling on a motion to sup‑
press, we review the ultimate determination of probable cause
de novo and review the findings of fact made by the trial court
for clear error, giving due weight to the inferences drawn from
those facts by the trial court.5
ANALYSIS
[4,5] Parks did not have a warrant authorizing a search of
Wenke’s person. Warrantless searches and seizures are per
se unreasonable under the Fourth Amendment, subject only
to a few specifically established and well‑delineated excep‑
tions, which must be strictly confined by their justifications.6
One such exception is a search incident to a lawful arrest.7
The validity of a search incident to a lawful arrest depends
on the legality of the arrest itself.8 Where an arrest is pursu‑
ant to a warrant, as in this case, the validity of the arrest turns
on whether the county court had probable cause to issue the
arrest warrant.9
3 State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
4 Id.
5 Id.
6 State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008); State v. Eberly, 271
Neb. 893, 716 N.W.2d 671 (2006).
7 Id.
8 State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
9 See, U.S. Const. amend. IV; Neb. Const. art. I, § 7; State v. Davidson, 260
Neb. 417, 618 N.W.2d 418 (2000).
STATE v. WENkE 	905
Cite as 276 Neb. 901

On its face, the warrant pursuant to which Wenke was
arrested affirmatively states facts giving rise to probable cause
based upon the issuing judge’s personal review of the court
file. This is sufficient to establish probable cause.10 Wenke
does not contest this, but nevertheless argues that he was not
lawfully arrested. his reasoning for this assertion has evolved.
In the district court, he contended that Parks was required to
give him an opportunity to pay the judgment before arrest‑
ing him. The district court rejected this argument in overrul‑
ing Wenke’s motion to suppress. On appeal, he argues as “a
matter of first impression” that pursuant to Neb. Rev. Stat.
§ 29‑2206.01 (Reissue 1995), the document titled “Warrant/
Order of Commitment”
was not an “arrest warrant” which authorized the “arrest”
of [Wenke] but was . . . simply an Order issued by the
County Court to authorize the limited seizure of [Wenke]
for the purpose of having [him] either pay the fine and
costs, including the service of the document, or be com‑
mitted to jail to serve his Judgment by “sitting it out.”11
We 	find 	neither 	argument 	persuasive. 	Neb. 	Rev. 	Stat.
§ 29‑2206(1) (Reissue 1995) allows courts imposing fines
and costs to require that “the party stand committed and be
imprisoned in the jail of the proper county until the same is
paid or secured to be paid or the defendant is otherwise dis‑
charged according to law.” Section 29‑2206(2) provides that
notwithstanding this power, a court may allow an offender to
pay fines and costs in installments if a showing is made that
the offender is unable to make payment in a lump sum. Section
29‑2206.01 provides that a person who does not make install‑
ment payments when ordered to do so “shall be liable for
punishment for contempt, unless he has the leave of the court
in regard to such noncompliance.” Pursuant to these statutes,
Wenke was permitted to pay his fine and costs over time. The
agreement which he signed specifically provided that the bal‑
ance was to be paid by January 26, 2005, and that if it was not
paid, he was to appear at 8:30 a.m. on that date “to show cause
10 See State v. Davidson, supra note 9.
11 Brief for appellant at 9.
906 	276 NEBRASkA REPORTS

why [he] should not be committed to jail and/or fined for con‑
tempt for non‑payment of judgment.” Wenke neither paid his
judgment nor appeared on the appointed date to show cause
for nonpayment.
It was after Wenke’s failure to comply with the terms of the
extension agreement that the court issued the warrant/order
of commitment. In State v. Davidson,12 we recognized the
power of a court to issue an arrest warrant in these circum‑
stances. The warrant in that case ordered that the defendant
be “‘immediately arrest[ed]’” and provided that he could be
released upon payment of the fine and costs, but otherwise
he should be committed to the county jail “‘to serve [his]
judgment(s) and costs at the rate provided by law.’”13 The war‑
rant in Wenke’s case differs only in that it does not specifically
command “immediate arrest.” But within its four corners, it
clearly requires a series of events in which Wenke would first
be taken into custody, then be given an opportunity to pay
fines and costs due and “released from custody upon pay‑
ment of the same,” but committed to jail if payment was not
made. Clearly, Wenke could not be “released from custody”
upon payment of the fine and costs, as the warrant requires,
without first being placed in custody, i.e., arrested. Wenke
acknowledges that the warrant authorized a “limited seizure”
of his person,14 but offers no explanation of how this would
differ from an “arrest,” which involves “‘the taking, seizing, or
detaining of the person of another’” under “‘real or pretended
legal authority.’”15
We conclude that the warrant/order of commitment issued
by the county court was a valid arrest warrant, that Wenke
was lawfully arrested pursuant to such warrant, and that the
warrantless search disclosing contraband in his possession was
constitutionally permissible as a search incident to a lawful
arrest. Accordingly, the district court did not err in overruling
12 State v. Davidson, supra note 9.
13 Id. at 423, 618 N.W.2d at 424.
14 Brief for appellant at 9.
15 See State v. White, 209 Neb. 218, 220‑21, 306 N.W.2d 906, 909 (1981).
Accord State v. Ellingson, 13 Neb. App. 931, 703 N.W.2d 273 (2005).
STATE v. WENkE 	907
Cite as 276 Neb. 901

Wenke’s motion to suppress and receiving as evidence the
methamphetamine found in his possession. We affirm Wenke’s
conviction and sentence.
A ffirmed.
mAry m. vAn ert, personAl representAtive of the
estAte of leonArd vAn ert, deCeAsed, Appellee
And Cross -AppellAnt, v. stAte fArm mutuAl
Automobile insurAnCe C ompAny,
AppellAnt And Cross -Appellee .
758 N.W.2d 36
Filed December 12, 2008. 	No. S‑07‑1121.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in con‑
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
3. Insurance: Contracts: Appeal and Error. The interpretation of an insurance
policy is a question of law, in connection with which an appellate court has an
obligation to reach its own conclusions independently of the determination made
by the trial court.
4. Insurance: Contracts: Parties. The parties to an insurance contract may contract
for any lawful coverage, and an insurer may limit its liability and impose restric‑
tions and conditions upon its obligation under the contract not inconsistent with
public policy or statute.
Appeal from the District Court for Lincoln County: John p.
murphy, Judge. Reversed and remanded with directions.
Stephanie F. Stacy and John J. heieck, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., and Justin herrmann, of Jacobsen,
Orr, Nelson, Wright & Lindstrom, P.C., for appellant.
keith A. harvat and Amy L. Patras, of Waite, mcWha &
harvat, for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
908 	276 NEBRASkA REPORTS