State v. Bromm

STATE v. BROMM 	193
Cite as 285 Neb. 193
intentions. If any discrepancy exists between the statement of
the minimum limit of the sentence and the statement of parole
eligibility or between the statement of the maximum limit of
the sentence and the statement of mandatory release, the state-
ments of the minimum limit and maximum limit shall control
the calculation of the offender’s term. See § 29-2204(1).
CONCLUSION
For the reasons set forth, we find no merit to any of
Castillas’ assignments of error. We therefore affirm the judg-
ments of conviction and the sentences imposed.
A ffirmed.
CAssel, J., not participating.
stAte of NebrAskA, Appellee, v.
rANdAll J. bromm, AppellANt.
826 N.W.2d 270
Filed February 8, 2013. 	No. S-11-718.
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 protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. 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 appeal.
3. 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 hear-
ings on the motion to suppress.
4. Evidence: Proof: Words and Phrases. Direct evidence is that evidence which
proves the fact in dispute directly without inference or presumption.
5. Evidence. Direct evidence encompasses not just testimonial evidence, but the
admission of documents and other tangible items.
6. Search and Seizure: Police Officers and Sheriffs. The purpose of the exclu-
sionary rule is to deter police misconduct.
7. Constitutional Law: Search and Seizure: Police Officers and Sheriffs:
Negligence. The exclusionary rule should not apply when police mistakes are the
result of negligence rather than systemic error or reckless disregard of constitu-
tional requirements.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

194 	285 NEBRASKA REPORTS
Petition for further review from the Court of Appeals,
iNbody, Chief Judge, and irwiN and sievers, Judges, on appeal
thereto from the District Court for Washington County, JohN
e. sAmsoN, Judge, on appeal thereto from the County Court for
Washington County, C. mAtthew sAmuelsoN, Judge. Judgment
of Court of Appeals reversed, and cause remanded for further
proceedings.
John A. Svoboda, of Gross & Welch, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heAviCAN, C.J., wright, C oNNolly, stephAN, mCC ormACk,
miller-lermAN, and CAssel, JJ.
CAssel, J.
INTRODUCTION
The arresting officer stopped Randall J. Bromm’s dark-
colored vehicle in reliance upon incorrect information from the
vehicle’s registration, which stated that the vehicle was white.
In the subsequent prosecution for driving under the influ-
ence, Bromm sought to suppress evidence of the traffic stop.
After he failed to obtain suppression at the county court and
district court levels, the Nebraska Court of Appeals reversed,
and remanded. On further review, we first decide that a copy
of the county treasurer’s certificate of registration provided
direct evidence that the error in the vehicle’s color stemmed
from the registration. We also determine that the good faith
exception to the exclusionary rule applies, because the county
treasurer is not an adjunct of law enforcement. We reverse the
decision of the Court of Appeals and remand the cause for fur-
ther proceedings.
BACKGROUND
The facts are set forth in greater detail in the Court of
Appeals’ published decision.1
1 State v. Bromm, 20 Neb. App. 76, 819 N.W.2d 231 (2012).

STATE v. BROMM 	195
Cite as 285 Neb. 193
C ouNty C ourt proCeediNgs
Bromm moved to suppress all evidence obtained as a result
of the traffic stop, alleging that law enforcement did not have
a reasonable, articulable suspicion to stop his vehicle. There
was no issue of bad driving, but the arresting officer relied
upon a discrepancy between the actual color of Bromm’s
vehicle as compared to the color of the vehicle from the
State’s motor vehicle registration records as relayed by the
officer’s dispatcher.
According to the arresting officer’s testimony at the suppres-
sion hearing, the vehicle was a “dark color,” which the offi-
cer thought was “like maroon or red or something like that.”
However, the officer testified that he “ran” the plate through
dispatch, which reported that the license plate belonged to a
“white vehicle.” The stop was based solely upon an error in
the registration of the vehicle, an error which the officer con-
ceded was made by someone other than Bromm. The record of
the suppression hearing did not include a copy of the vehicle’s
registration certificate.
The county court overruled Bromm’s motion to suppress,
finding that the officer had probable cause to stop Bromm
based upon “observed violations of law, to wit: Fictitious
Plates.”
The matter proceeded to trial before the county court upon
a written stipulation. Among the attachments to the written
stipulation was a copy of the vehicle’s registration certificate
from the Burt County treasurer. In the “Description” section of
the certificate, the information about the vehicle appeared in
this format:
2009 CHEVROLET
K1500 SUBURBAN LT 	4 DR SPT UTIL
WHI 	FLEXIBLE
The county court convicted Bromm of driving under the
influence.
distriCt C ourt’s deCisioN
Bromm appealed to the district court, which observed that
the information from the dispatcher’s database was errone-
ous as to the color of Bromm’s vehicle. The court noted that

196 	285 NEBRASKA REPORTS
a statute requires registration of a motor vehicle be made by
application for registration to the county treasurer or other des-
ignated county official of the county in which the motor vehi-
cle has situs and that the color of a motor vehicle is statutorily
required on each new application for registration. Based upon
the attachment to the stipulation, the court determined that the
registration was issued by the Burt County treasurer. The court
stated that there was no evidence to indicate who was at fault
for the incorrect color designation on Bromm’s motor vehicle
registration certificate.
Although the district court determined that the sole reason
for the traffic stop was erroneous, the court concluded that
the good faith exception to the exclusionary rule applied. The
district court reasoned that there was no evidence that the
Washington County dispatcher or the arresting officer was
responsible for the error or that the Burt County treasurer was
connected to any law enforcement duties. The district court
found the facts of the case to be distinguishable from State v.
Hisey2 because there was no evidence that the error was made
by an adjunct to the law enforcement team.
C ourt of A ppeAls’ deCisioN
Bromm next appealed to the Court of Appeals. The Court of
Appeals considered the State’s argument that county treasurers’
offices should not be considered adjuncts of law enforcement
because they are not involved in promulgating rules and regu-
lations that law enforcement must enforce, nor are they integral
to the laws concerning motor vehicles and persons who operate
motor vehicles.
The Court of Appeals observed that the officer had received
the information suggesting that Bromm’s vehicle did not have
proper license plates from the dispatcher—who had to be
considered law enforcement—but that there was no direct evi-
dence as to where the dispatcher had obtained the erroneous
information. The Court of Appeals recalled that the burden of
proof was on the State to prove the applicability of the good
faith exception to the exclusionary rule, determined that the
2 State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (2006).

STATE v. BROMM 	197
Cite as 285 Neb. 193
State failed to prove that the erroneous information came from
the Burt County treasurer’s office, and concluded that the dis-
patcher got the information from the Nebraska Department of
Motor Vehicles (DMV). And under Hisey,3 a traffic stop based
upon erroneous information contained in the DMV’s records
was unlawful.
Accordingly, the Court of Appeals determined that the good
faith exception did not apply and that the county court and the
district court erred in not sustaining Bromm’s motion to sup-
press. Based upon that determination, the Court of Appeals did
not reach Bromm’s assignments of error and arguments con-
cerning the horizontal gaze nystagmus test, administration of
the preliminary breath test, and alleged errors in the arresting
officer’s report.
We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in finding
that the county court and district court erred in not sustain-
ing Bromm’s motion to suppress evidence, particularly with
respect to the basis for the stop of the vehicle and the suffi-
ciency of the evidence relating to the registration.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.4
ANALYSIS
On petition for further review, the State contends that the
Court of Appeals erred in focusing on who transmitted the
incorrect information regarding the color of Bromm’s vehicle,
rather than on who made the error. The State asserts that the
3 Id.
4 State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).

198 	285 NEBRASKA REPORTS
record contains evidence showing the error originated with
the treasurer’s office and that it is this error which should
be considered in determining whether suppression should be
employed to deter further transgressions.
In response to the State’s petition for further review, Bromm
argues that the Court of Appeals determined that the State
failed to meet its burden of proof regarding who was at fault
for the incorrect color appearing on Bromm’s registration and
that the Court of Appeals corrected the district court’s judg-
ment by placing the burden of proof on the issue where it
should have been—with the State. Bromm asserts that the only
direct evidence as to the source of the incorrect information
was that it came from the dispatcher. Thus, Bromm argues
that the Court of Appeals properly concluded the State had not
proved the source of the erroneous information.
The record contains evidence pointing to the source of the
incorrect information, and the district court considered this
evidence. When the matter proceeded to trial before the county
court upon the parties’ written stipulation, a copy of the cer-
tificate of registration for Bromm’s vehicle was admitted as
one of the attachments to the stipulation. As the district court
observed, statutes require that (1) every owner of a motor vehi-
cle must apply for registration to the county treasurer or des-
ignated official of the county5; (2) the application shall include
a description of the vehicle, “including the color”6; and (3)
the certificate of registration shall contain a description of the
motor vehicle as set forth in the application, which, as we have
already noted, must include the vehicle’s color.7 Another stat-
ute mandates that county treasurers shall act as agents for the
DMV in the collection of all motor vehicle taxes, motor vehicle
fees, and registration fees.8 And yet another statute requires the
county to issue and file registration certificates using the vehi-
cle titling and registration computer system prescribed by the
5 Neb. Rev. Stat. § 60-385 (Reissue 2010).
6 Neb. Rev. Stat. § 60-386 (Reissue 2010).
7 Neb. Rev. Stat. § 60-390 (Reissue 2010).
8 Neb. Rev. Stat. § 60-3,141(1) (Reissue 2010).

STATE v. BROMM 	199
Cite as 285 Neb. 193
DMV.9 Thus, the functions of the county treasurer in receiving
the registration information, issuing the registration, and enter-
ing the registration information in the DMV’s computer system
are all expressly prescribed by statute—a process which clearly
traces the information entered by the county treasurer into the
records of the DMV.
[2,3] The district court properly considered the evidence
of the certificate of registration which had been admitted as
trial evidence and was included in the record on appeal. In an
appeal of a criminal case from the county court, the district
court acts as an intermediate court of appeal.10 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.11
Thus, on appeal, the district court could consider the trial evi-
dence in addition to the evidence from the suppression hearing.
We conclude that the same rule applies upon subsequent appeal
to a higher court.12 Thus, the evidence of the certificate of reg-
istration is properly before us.
[4,5] Contrary to the Court of Appeals’ decision, the cer-
tificate of registration is direct evidence of the registered color
of Bromm’s vehicle. Direct evidence is that evidence which
proves the fact in dispute directly without inference or pre-
sumption.13 It encompasses not just testimonial evidence, but
the admission of documents and other tangible items.14 The
9 Neb. Rev. Stat. § 60-372(1) (Reissue 2010).
10 See State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
11 State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
12 See, generally, State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011)
(district court and higher appellate court review appeals from county court
for error appearing on record).
13 Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720
N.W.2d 372 (2006).
14 See, NJI2d Crim. 5.0 (stating in part that “[d]irect evidence is either
physical evidence of a fact or testimony by someone who has first-hand
knowledge of a fact by means of his or her senses”); State v. Davis, 1
Neb. App. 502, 500 N.W.2d 852 (1993) (determining that jury instruction
given—which mirrored that in NJI2d Crim. 5.0—accurately stated law).

200 	285 NEBRASKA REPORTS
certificate from the Burt County treasurer described Bromm’s
vehicle as “WHI,” which in the absence of any other descrip-
tion of the vehicle’s color clearly conveys that it was white.
Thus, the certificate of registration showed that the error origi-
nated with the Burt County treasurer’s office. Accordingly, the
State met its burden to show that the error began with the treas-
urer’s office and not with the DMV or the dispatcher. Because
this burden has been met, we turn to the issue at the heart of
the State’s argument.
The State argues that the county treasurer’s office should not
be considered an adjunct to law enforcement and, thus, that the
exclusionary rule should not apply in this case. As discussed in
Hisey,15 the distinction is important under Arizona v. Evans16
for purposes of determining whether the good faith excep-
tion to the exclusionary rule should apply. In Evans, the U.S.
Supreme Court held that evidence seized incident to an arrest
based upon a negligent error by a court clerk did not need to
be suppressed. The Court reasoned that the exclusionary rule
was designed as a means of deterring police misconduct, not
mistakes by court employees, and that there was no evidence
that lawlessness among court personnel required the sanction
of suppression. The Court stated, “Because court clerks are not
adjuncts to the law enforcement team . . . they have no stake in
the outcome of particular criminal prosecutions.”17 The Court
reasoned that the threat of exclusion could not be expected to
deter these individuals, nor would the behavior of the arresting
officer be altered.
In the instant case, the State argues that county treasurers
have even less stake in the outcome of criminal prosecutions
than do court clerks. According to the State, the only reason
the treasurer’s office issues vehicle registrations instead of the
DMV is because it is required to do so by statute. The State
argues that the treasurer’s office is “far more akin to a court
15 State v. Hisey, supra note 2.
16 Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995).
17 Id., 514 U.S. at 15.

STATE v. BROMM 	201
Cite as 285 Neb. 193
clerk’s office than it is to [the] DMV.”18 Thus, the State con-
tends that the Court of Appeals improperly extended its prior
decision in Hisey.19
[6] We agree with the State that a county treasurer’s office
should not be treated as an adjunct of the law enforcement
team when application of the exclusionary rule is at issue.
The purpose of the exclusionary rule is to deter police mis-
conduct.20 But like in Evans, no law enforcement agent did
anything wrong. The officer in this case was justified in rely-
ing on the registration information provided to him, and his
reliance upon the information was objectively reasonable. We
have no reason to believe that applying the exclusionary rule
under these circumstances would have any significant effect on
employees of a county treasurer’s office. They have no inter-
est in maintaining inaccurate records. Like the court clerks in
Evans, such employees are not “engaged in the often competi-
tive enterprise of ferreting out crime”21 and “have no stake in
the outcome of particular criminal prosecutions.”22 Likewise,
the Washington County sheriff’s office has no control over the
records of the Burt County treasurer.
[7] At oral argument, the State extended the argument set
forth in its brief, contending that Hisey was wrongly decided.
Recent precedents from the U.S. Supreme Court demon-
strate a reluctance to exclude evidence where the deterrent
effect would be minimal. Davis v. U.S.23 concerned evidence
obtained during a search conducted in reasonable reliance on
binding appellate precedent in effect at the time of the search.
The U.S. Supreme Court iterated that “in 27 years of practice
under Leon’s good-faith exception, [the Court had] ‘never
applied’ the exclusionary rule to suppress evidence obtained
18 Brief for appellant in support of petition for further review at 8.
19 State v. Hisey, supra note 2.
20 United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984).
21 Arizona v. Evans, supra note 16, 514 U.S. at 15.
22 Id.
23 Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285
(2011).

202 	285 NEBRASKA REPORTS
as a result of nonculpable, innocent police conduct.”24 In
Herring v. United States,25 the U.S. Supreme Court con-
sidered whether the exclusionary rule should apply to neg-
ligent errors by law enforcement personnel. In that case,
an investigator asked the county’s warrant clerk to check
for any outstanding warrants for the defendant’s arrest and
learned that there was an outstanding warrant in a neighbor-
ing county. The investigator then arrested the defendant, and
a search incident to arrest revealed methamphetamine and a
pistol (which the defendant, as a felon, could not possess).
When the warrant clerk for the neighboring county went to
retrieve the actual warrant in order to send it to the warrant
clerk who requested it, she was unable to find it and subse-
quently learned that the warrant had been recalled 5 months
earlier, although that information did not appear in the data-
base. The Court concluded that the exclusionary rule should
not apply when police mistakes are the result of negligence
rather than “systemic error or reckless disregard of constitu-
tional requirements.”26
Although we need not decide today whether Hisey remains
good law in light of these precedents, we conclude that the
evidence in the instant case need not be suppressed because
(1) the officer’s reliance on the information he received from
dispatch was objectively reasonable, (2) the erroneous infor-
mation originated from an entity that cannot be considered an
adjunct of the law enforcement team, and (3) application of
the exclusionary rule under these circumstances would have no
deterrent effect. Accordingly, we conclude that the good faith
exception to the exclusionary rule applies and that the Court of
Appeals erred in reaching a contrary conclusion.
CONCLUSION
On further review, we conclude that the Court of Appeals
erred in determining that the good faith exception did not apply
24 Id., 131 S. Ct. at 2429.
25 Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496
(2009).
26 Id., 555 U.S. at 147.

STATE v. RAMIREZ 	203
Cite as 285 Neb. 203
and that the county court and the district court erred in not sus-
taining Bromm’s motion to suppress. Accordingly, we reverse
the decision of the Court of Appeals.
Because the Court of Appeals determined that the evidence
should be suppressed, it did not consider Bromm’s assign-
ments of error and arguments concerning the horizontal gaze
nystagmus test, administration of the preliminary breath test,
and alleged errors in the arresting officer’s report. We therefore
remand the cause to the Court of Appeals to consider Bromm’s
remaining assignments of error.
reversed ANd remANded for
further proCeediNgs.
stAte of NebrAskA, Appellee, v.
billy rAmirez, AppellANt.
825 N.W.2d 801
Filed February 8, 2013. 	No. S-12-251.
1. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was an abuse of judi-
cial discretion.
2. ____: ____. An abuse of discretion takes place when the sentencing court’s rea-
sons or rulings are clearly untenable and unfairly deprive a litigant of a substan-
tial right and a just result.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
4. Criminal Law: Juries. The determination of whether an injury is a “serious
bodily injury” is a question of fact for the jury.
5. Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280 (Reissue
2008) vests trial courts with the authority to order restitution for actual damages
sustained by the victim of a crime for which a defendant is convicted.
6. Sentences: Restitution. After the sentencing court determines that a conviction
warrants restitution, it then becomes the sentencing court’s factfinding respon-
sibility to determine the victim’s actual damages and the defendant’s ability
to pay.
7. ____: ____. Under Neb. Rev. Stat. § 29-2281 (Reissue 2008), the sentencing
court may hold a hearing at the time of sentencing to determine the amount
of restitution.
8. Effectiveness of Counsel: Records: Evidence: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because it is made
on direct appeal. The determining factor is whether the record is sufficient to
adequately review the question.