Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/23/2022 08:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
State of Nebraska, appellee, v.
Seidy N. Albarenga, appellant.
___ N.W.2d ___
Filed December 23, 2022. No. S-21-213.
1. Ordinances: Appeal and Error. Interpretation of a municipal ordinance is a question of law, on which an appellate court reaches an independent conclusion irrespective of the determination made by the court
below.
2. Statutes: Appeal and Error. The interpretation of statutes and regulations presents questions of law which an appellate court reviews
de novo.
3. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When 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 independently of the trial court’s determination.
4. Statutes: Ordinances. State preemption arises with respect to municipal ordinances or township laws and flows from the principle that
municipal legislation is invalid if it is repugnant to, or inconsistent with,
state law.
5. ____: ____. Preemption of municipal ordinances by state law is based
on the fundamental principle that municipal ordinances are inferior in
status and subordinate to the laws of the state.
6. Constitutional Law: Municipal Corporations: Statutes: Ordinances.
Where a municipality has constitutionally conferred powers to form a
charter and enact ordinances, the state law is the superior law only as to
matters of statewide concern.
7. Highways. Highway control, which includes traffic control of city
streets, is a preeminently state affair that affects the whole state.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
8. Highways: Legislature. Traffic control of city streets is a legislative
function in the exercise of its inherent police power to provide the
means and methods of alleviating, in the public interest, traffic congestion throughout the state, particularly that which is designated as
through traffic.
9. Highways. It is of statewide concern that traffic lanes through congested
areas be kept open and that such areas be not permitted to operate as
a bottleneck in the free movement of traffic, and this transcends any
purely local concern.
10. Statutes. There are three types of preemption: (1) express preemption,
(2) field preemption, and (3) conflict preemption.
11. Statutes: Legislature: Intent. The touchstone of preemption analysis is
legislative intent.
12. Statutes: Legislature: Ordinances. Neb. Rev. Stat. § 60-6,108(3)
(Reissue 2021) expressly preempts local laws to the extent those laws
are directly contrary to the Nebraska Rules of the Road, unless expressly
authorized by the Legislature.
13. Highways. A steady red indication under Neb. Rev. Stat. § 60-6,123(3)(c)
(Reissue 2021) includes lighted arrows.
14. Statutes: Legislature: Intent. In discerning the meaning of a statute,
a court must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being a court’s duty
to discover, if possible, the Legislature’s intent from the language of the
statute itself.
15. Statutes. A court must give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
16. ____. A statute is ambiguous when the language used cannot be adequately understood either from the plain meaning of the statute or when
considered in pari materia with any related statutes.
17. ____. The in pari materia doctrine is an intrinsic aid whereby a court
regards all statutes upon the same general subject matter as part of one
system, and later statutes as supplementary or complementary to those
preceding them.
18. Statutes: Legislature: Intent. Absent an express intent to incorporate
another legislative body’s law, the in pari materia doctrine does not
apply as between laws enacted by different legislative bodies at different times.
19. Administrative Law: Statutes: Legislature. The Legislature can delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute, but the administrative agency
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
is limited in its rulemaking authority to the powers delegated to it by
the statute which it is to administer.
20. Administrative Law: Statutes. In order to be valid, a rule or regulation
must be consistent with the statute under which the rule or regulation is
promulgated.
21. ____: ____. An administrative agency may not employ its rulemaking
power to modify, alter, or enlarge portions of its enabling statute.
22. Administrative Law: Statutes: Appeal and Error. While appellate
courts have traditionally given considerable weight to a department’s
construction of an ambiguous statute it is charged with enforcing, resort
to contemporaneous construction of a statute by administrative bodies
is neither necessary nor proper where the language used is clear, or its
meaning can be ascertained by the use of intrinsic aids alone.
23. Highways: Words and Phrases. For purposes of Neb. Rev. Stat.
§ 60-6,123(3)(c) (Reissue 2021), the term “traffic control device” is
defined by § 60-123 and is a physical object; a traffic control device
does not refer to an ordinance or the meaning attributed to that object
vis-a-vis a local ordinance.
24. Search and Seizure: Evidence. The exclusionary rule is not found
in the federal or state Constitution, but is a prudential doctrine to
be employed where the deterrence benefits of suppression outweigh
its costs.
25. Police Officers and Sheriffs: Probable Cause. Police officers are not
required to be legal scholars, but implicit in the probable cause standard
is the requirement that a police officer’s mistakes be reasonable.
26. Police Officers and Sheriffs: Presumptions. Law enforcement is
charged with enforcing laws, which are presumptively valid unless and
until they are declared invalid.
Petition for further review from the Court of Appeals, Pirtle,
Chief Judge, and Moore and Welch, Judges, on appeal thereto
from the District Court for Lancaster County, Andrew R.
Jacobsen, Judge. Judgment of Court of Appeals affirmed in
part, and in part reversed and remanded with directions.
Joe Nigro, Lancaster County Public Defender, and Nathan
Sohriakoff for appellant.
Christine A. Loseke, Assistant Lincoln City Prosecutor, for
appellee.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
We granted further review of a Nebraska Court of Appeals’
decision affirming the defendant’s convictions for violating a
municipal traffic signal law and for driving under the influence
(DUI). The issues presented are (1) whether Neb. Rev. Stat.
§ 60-6,123(3)(c) (Reissue 2021) preempts a city ordinance
providing that vehicular traffic facing a steady red arrow at the
intersection of two one-way streets is prohibited from turning
left at any time while the arrow remains red and (2) whether
the evidence derived from the stop should have been excluded
because the officer could not reasonably rely on a preempted
traffic ordinance in making the stop. We reverse the traffic
ordinance conviction but affirm the DUI conviction.
BACKGROUND
Following a stipulated trial, Seidy N. Albarenga was found
guilty in county court of DUI, first offense, and of violating
an automatic traffic signal, both in violation of municipal ordinances of the city of Lincoln, Nebraska. She was sentenced
accordingly.
Traffic Stop
Albarenga’s convictions stem from a traffic stop that took
place in Lincoln on June 28, 2019. A law enforcement officer
observed Albarenga on 17th Street, facing north, in the westernmost lane at the intersection with Q Street. Both 17th and Q
Streets are one way, with Q Street running west.
The westernmost lane of 17th Street faced a traffic signal
that displayed green, yellow, and red arrow lights. The only
sign accompanying the signal was one directing traffic to turn
left only. A similar arrow signal in at least one other intersection in Lincoln is accompanied by a separate sign indicating
there is no turn on a red arrow.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
Albarenga came to a complete stop at the intersection. The
traffic control device displayed a red arrow light. After stopping, and while the red arrow was still lit, Albarenga turned
left onto Q Street.
The law enforcement officer initiated a traffic stop on
the grounds that Albarenga “violated the left turn arrow.”
During the stop, the officer observed signs that Albarenga was
impaired. A chemical test showed a reading of 0.142 of a gram
of alcohol per 210 liters of breath.
Charges
Albarenga was charged with two counts in county court.
Count 1 charged her with DUI, first offense, in violation of
Lincoln Mun. Code § 10.16.030 (2017). Count 2 charged
her with violating an automatic traffic signal, in violation of
Lincoln Mun. Code § 10.12.030 (2017). Section 10.12.030
prohibits turning at a steady red arrow indication and requires
the driver to remain stopped until a green light is displayed.
It states:
Whenever traffic is controlled by an automatic traffic
signal or other official traffic control device exhibiting
different colored lights or colored, lighted arrows successively, one at a time or in combination, only the colors
green, red, and yellow shall be used, except for pedestrian
signals, and said lights shall indicate and apply to drivers
of vehicles and pedestrians as follows:
....
RED ARROW: Vehicular traffic facing a lighted steady
red arrow shall stop before entering the crosswalk on the
near side of the intersection and remain stopped until a
green light is displayed, except as otherwise permitted in
this title.
Pretrial Motions
Albarenga moved to quash count 2 and moved to suppress
the evidence derived from the stop, which the State intended to
offer to prove the charges in count 1. Both motions revolved
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
around Albarenga’s argument that what § 10.12.030 directs
a steady red arrow light shall signal to drivers in Lincoln is
in direct conflict with what § 60-6,123(3)(c) directs a steady
red arrow light shall signal to drivers throughout the State of
Nebraska. She argued that § 60-6,123 requires any “steady
red indication,” which specifically includes “different colored
lights or colored lighted arrows,” “shall indicate” to drivers
at an intersection of two one-way streets that they “may cautiously enter the intersection to make a left turn after stopping.” Thus, Albarenga argued that § 10.12.030 prohibits what
§ 60-6,123 expressly permits and that § 10.12.030 is thereby
preempted by state law.
Section 60-6,123 is part of the Nebraska Rules of the Road
(Rules of the Road). 1 Describing traffic signals, § 60-6,123
provides in relevant part:
Whenever traffic is controlled by traffic control signals exhibiting different colored lights or colored lighted
arrows, successively one at a time or in combination, only
the colors green, red, and yellow shall be used, except for
special pedestrian signals carrying a word legend, number, or symbol, and such lights shall indicate and apply to
drivers of vehicles and pedestrians as follows:
(1)(a) Vehicular traffic facing a circular green indication may proceed straight through or turn right or left
unless a sign at such place prohibits either such turn,
but vehicular traffic, including vehicles turning right or
left, shall yield the right-of-way to other vehicles and to
pedestrians lawfully within the intersection or an adjacent
crosswalk at the time such indication is exhibited;
(b) Vehicular traffic facing a green arrow indication,
shown alone or in combination with another indication, may cautiously enter the intersection only to make
the movement indicated by such arrow or such other
1
See Neb. Rev. Stat. §§ 60-601 to 60-6,383 (Reissue 2021 & Cum. Supp.
2022).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
movement as is permitted by other indications shown at
the same time, and such vehicular traffic shall yield the
right-of-way to pedestrians lawfully within an adjacent
crosswalk and to other traffic lawfully using the intersection; and
(c) Unless otherwise directed by a pedestrian-control
signal, pedestrians facing any green indication, except
when the sole green indication is a turn arrow, may proceed across the roadway within any marked or unmarked
crosswalk;
(2)(a) Vehicular traffic facing a steady yellow indication is thereby warned that the related green movement is
being terminated or that a red indication will be exhibited
immediately thereafter when vehicular traffic shall not
enter the intersection, and upon display of a steady yellow
indication, vehicular traffic shall stop before entering the
nearest crosswalk at the intersection, but if such stop cannot be made in safety, a vehicle may be driven cautiously
through the intersection; and
(b) Pedestrians facing a steady yellow indication,
unless otherwise directed by a pedestrian-control signal,
are thereby advised that there is insufficient time to cross
the roadway before a red indication is shown and no
pedestrian shall then start to cross the roadway;
(3)(a) Vehicular traffic facing a steady red indication
alone shall stop at a clearly marked stop line or shall stop,
if there is no such line, before entering the crosswalk on
the near side of the intersection or, if there is no crosswalk, before entering the intersection. The traffic shall
remain standing until an indication to proceed is shown
except as provided in subdivisions (3)(b) and (3)(c) of
this section;
(b) Except where a traffic control device is in place
prohibiting a turn, vehicular traffic facing a steady red
indication may cautiously enter the intersection to make a
right turn after stopping as required by subdivision (3)(a)
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
of this section. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection;
(c) Except where a traffic control device is in place
prohibiting a turn, vehicular traffic facing a steady red
indication at the intersection of two one-way streets may
cautiously enter the intersection to make a left turn after
stopping as required by subdivision (3)(a) of this section. Such vehicular traffic shall yield the right-of-way to
pedestrians lawfully within an adjacent crosswalk and to
other traffic lawfully using the intersection; and
(d) Unless otherwise directed by a pedestrian-control
signal, pedestrians facing a steady red indication alone
shall not enter the roadway.
The county court ruled that § 10.12.030 was not preempted
by state law and overruled Albarenga’s pretrial motions.
Appeal to District Court
Albarenga appealed to the district court, assigning as error
the county court’s rulings on her pretrial motions. The district
court affirmed her convictions. The district court agreed with
the county court that § 10.12.030 did not conflict with the
Rules of the Road.
Court of Appeals
Albarenga thereafter appealed to the Court of Appeals,
asserting that the district court erred in affirming the county
court’s rulings denying her motions to quash and to suppress.
Albarenga assigned that the district court erred by affirming
the county court’s (1) finding that § 10.12.030 is not in conflict
with § 60-6,123, (2) denial of Albarenga’s motion to suppress,
and (3) denial of Albarenga’s motion to quash count 2. The
Court of Appeals also affirmed the convictions. 2
The Court of Appeals found merit to Albarenga’s reading
of § 60-6,123 in isolation, noting that § 60-6,123, by referring
2
See State v. Albarenga, 30 Neb. App. 711,
972 N.W.2d 85 (2022).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
in its introductory clause to “both ‘colored lights’ and ‘colored
lighted arrows’” as encompassed therein, demonstrated an
awareness of both circular and arrow indications. 3 Observing
that what a statute does not say is as important as what it does,
the Court of Appeals concluded that by setting forth in other
subsections separate rules for “‘a circular green indication’”
versus “‘a green arrow indication,’” while giving only one
rule for “‘a steady red indication,’” without distinguishing
between a circle and an arrow, § 60-6,123 refers by the term
“steady red indication” in § 60-6,123(3)(c) to both a red arrow
and a red circle. 4
Nevertheless, the Court of Appeals concluded § 60-6,123
should be read in pari materia with the Manual on Uniform
Traffic Control Devices (Manual), which was adopted pursuant
to § 60-6,118, and of which the Court of Appeals took judicial
notice. 5 Under the Manual, a steady red arrow signal prohibits
entering the intersection unless a traffic control device is in
place permitting a turn on a steady red arrow. The Court of
Appeals observed that “§ 4D.04, ¶ 3, items C.1 & C.2,” of the
Manual provided as follows:
“C. Steady red signal indications shall have the following meanings:
“1. Vehicular traffic facing a steady CIRCULAR
RED signal indication, unless entering the intersection
to make another movement permitted by another signal
indication, shall stop . . . and shall remain stopped until
a signal indication to proceed is displayed, or as provided below.
“Except when a traffic control device is in place prohibiting a turn on red or a steady RED ARROW signal
indication is displayed, vehicular traffic facing a steady
CIRCULAR RED signal indication is permitted to enter
3
See id., 30 Neb. App. at 718,
972 N.W.2d at 91.
4
See id.
5
See State v. Albarenga, supra note 2.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
the intersection to turn right, or to turn left from a one-way street into a one-way street, after stopping. . . .
“2. Vehicular traffic facing a steady RED ARROW
signal indication shall not enter the intersection to make
the movement indicated by the arrow and, unless entering
the intersection to make another movement permitted by
another signal indication, shall stop . . . and shall remain
stopped until a signal indication or other traffic control
device permitting the movement indicated by such RED
ARROW is displayed.
“When a traffic control device is in place permitting
a turn on a steady RED ARROW indication, vehicular
traffic facing a steady RED ARROW signal indication
is permitted to enter the intersection to make the movement indicated by the arrow signal indication, after
stopping.” 6
The Court of Appeals noted the Manual provided further, that
“‘[e]xcept as described in Item C.2 in Paragraph 3 of Section
4D.04, turning on a steady RED ARROW signal indication
shall not be permitted.’” 7
The Court of Appeals did not expressly analyze whether
the provisions of the Manual it quoted were consistent with
the provisions of the Rules of the Road and the mandate
of the enabling statute, § 60-6,118, that the Department of
Transportation may adopt and promulgate rules and regulations and implement a manual providing a uniform system
of traffic control devices “[c]onsistent with the provisions of
the . . . Rules of the Road.” Nor did it discuss whether principles of in pari materia apply as between statutes and regulations. The Court of Appeals cited the proposition that agency
regulations properly adopted and filed with the Secretary of
State of Nebraska have the effect of statutory law and bind
6
State v. Albarenga, supra note 2,
30 Neb. App. at 720-21,
972 N.W.2d at
92.
7
Id. at 721,
972 N.W.2d at 92.
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313 Nebraska Reports
STATE V. ALBARENGA
Cite as 313 Neb. 72
the agency that promulgated them just as they bind individual citizens. 8 It then reasoned that the Manual is more
specific than § 60-6,123 concerning red arrow indications and
therefore controlling.
We granted Albarenga’s petition for further review.
ASSIGNMENTS OF ERROR
In her brief in support of further review, Albarenga assigns
that the Court of Appeals erred by (1) taking judicial notice of
the Manual, (2) finding that the plain language of the Manual
should be treated like a statute, (3) treating the Manual as
the “‘controlling law’” when it found that the statutory language of § 60-6,123 was “‘less specific”’ than the language
of the Manual, (4) finding that § 10.12.030 is consistent with
Nebraska law, and (5) finding that her second and third assignments of error were without merit “‘because there is no conflict between § 10.12.030 and § 60-6,123.’”
STANDARD OF REVIEW
[1] Interpretation of a municipal ordinance is a question of
law, on which we reach an independent conclusion irrespective
of the determination made by the court below. 9
[2] The interpretation of statutes and regulations presents
questions of law which we review de novo. 10
[3] When 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. 11
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
8
See State v. Albarenga, supra note 2, citing Melanie M. v. Winterer,
290
Neb. 764,
862 N.W.2d 76 (2015).
9
Wilkison v. City of Arapahoe, 302 Neb. 968,
926 N.W.2d 441 (2019).
10
Id.
11
State v. Saitta, 306 Neb. 499,
945 N.W.2d 888 (2020).
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STATE V. ALBARENGA
Cite as 313 Neb. 72
law that an appellate court reviews independently of the trial
court’s determination. 12
ANALYSIS
Albarenga asserts on appeal, as she did below, that
§ 10.12.030 is in conflict with § 60-6,123(3)(c) and thereby
preempted by state law. She asserts that because § 10.12.030
is preempted, the county court erred in denying her motion
to quash the charge against her in count 2 for violating
§ 10.12.030 and the Court of Appeals erred in affirming her
conviction of violating that ordinance. Albarenga argues it also
follows from the preemption of § 10.12.030 that the stop for
violating § 10.12.030 was not objectively reasonable and that
the district court should have granted her motion to suppress
the evidence derived from the stop.
The State does not agree that § 10.12.030 is preempted
by § 60-6,123(3)(c), but argues that, even if it is, the arresting officer reasonably relied on the ordinance when stopping
Albarenga for a traffic violation. The State accordingly argues
that the district court did not err in overruling Albarenga’s
motion to suppress and that the DUI conviction, at the very
least, should be affirmed.
We agree with Albarenga that § 10.12.030 is preempted by
state law. We also agree with the State that the arresting officer
reasonably relied on the ordinance when making the stop.
Preemption
[4-6] State preemption arises with respect to municipal
ordinances or township laws and flows from the principle
that municipal legislation is invalid if it is repugnant to, or
inconsistent with, state law. 13 Preemption of municipal ordinances by state law is based on the fundamental principle that
12
Id.
13
See 5 Eugene McQuillin, The Law of Municipal Corporations § 15:19 (3d
ed. 2022).
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STATE V. ALBARENGA
Cite as 313 Neb. 72
municipal ordinances are inferior in status and subordinate to
the laws of the state. 14 That said, where a municipality such as
Lincoln has constitutionally conferred powers to form a charter and enact ordinances, the state law is the superior law only
as to matters of statewide concern. 15
[7-9] Highway control, which includes traffic control of
city streets, is a preeminently state affair that affects the whole
state. 16 We have explained that traffic control of city streets
is a legislative function in the exercise of its inherent police
power to provide the means and methods of alleviating, in the
public interest, traffic congestion throughout the state, “particularly that which is designated as through traffic.” 17 “It is of
state-wide concern that traffic lanes through congested areas
be kept open and that such areas be not permitted to operate as
a bottleneck in the free movement of traffic,” and this “transcends any purely local concern.” 18
[10,11] There are three types of preemption: (1) express preemption, (2) field preemption, and (3) conflict preemption, 19
although it has been commented in the federal preemption
context that the three categories “are anything but analytically
air-tight.” 20 In all three cases, the touchstone of preemption
analysis is legislative intent. 21
14
Malone v. City of Omaha, 294 Neb. 516,
883 N.W.2d 320 (2016).
15
See, Neb. Rev. Stat. § 15-263 (Reissue 2022); Neb. Const. art. XI, §§ 2
and 5.
16
See Omaha Parking Authority v. City of Omaha, 163 Neb. 97,
77 N.W.2d
862 (1956).
17
Id. at 105,
77 N.W.2d at 869.
18
Id. See, also, Herman v. Lee,
210 Neb. 563,
316 N.W.2d 56 (1982).
19
Hauptman, O’Brien v. Auto-Owners Ins. Co., 310 Neb. 147,
964 N.W.2d
264 (2021).
20
R.F. v. Abbott Laboratories, 162 N.J. 596, 618,
745 A.2d 1174, 1187
(2000) (quoting Laurence H. Tribe, American Constitutional Law § 6-28
(3d ed. 2000)).
21
Hauptman, O’Brien v. Auto-Owners Ins. Co., supra note 19.
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STATE V. ALBARENGA
Cite as 313 Neb. 72
One of the express purposes of the Rules of the Road, set
forth in § 60-602(7), is “[t]o assist traffic law enforcement by
encouraging voluntary compliance with law through uniform
rules.” Accordingly, § 60-604 sets forth rules of construction
of the Rules of the Road that they “shall be so interpreted
and construed as to effectuate their general purpose to make
uniform the laws relating to motor vehicles.” Section 60-680
authorizes local authorities within the reasonable exercise of
their police power to “regulate” traffic by means of traffic
control devices and “[r]egulate or prohibit” stopping and the
turning of vehicles, but this provision does not authorize, in
the course of so doing, the adoption of ordinances in direct
conflict with the Rules of the Road.
[12] Section 60-6,108(3) explicitly mandates that no local
authority shall enact or enforce any ordinance directly contrary to the Rules of the Road:
The Nebraska Rules of the Road shall be applicable and
uniform throughout this state and in all political subdivisions and municipalities of this state, and no local
authority shall enact or enforce any ordinance directly
contrary to the Nebraska Rules of the Road unless
expressly authorized by the Legislature.
We explained in Butler County Dairy v. Butler County 22 that
in expressly preempting local laws, the Legislature includes
provisions explicitly stating in some manner that (1) the
legislation preempts local laws related to the subject matter
of the legislation, (2) a certain subject is governed solely by
the legislation, or (3) political subdivisions are prohibited
from enacting any local law conflicting with the legislation.
Section 60-6,108(3) explicitly preempts local laws to the
extent those law are directly contrary to the Rules of Road,
unless expressly authorized by the Legislature.
[13] Section 60-6,123 of the Rules of the Road plainly
provides: “Except where a traffic control device is in place
22
See Butler County Dairy v. Butler County, 285 Neb. 408,
827 N.W.2d 267
(2013).
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STATE V. ALBARENGA
Cite as 313 Neb. 72
prohibiting a turn,” a steady red arrow signal “shall indicate . . . to drivers” they are permitted to “cautiously enter
the intersection to make a left turn after stopping.” While
§ 60-6,123(3)(c) does not expressly refer to the shape of the
signal, subsection (3)(c) refers broadly to a “steady red indication” and, under the introductory clause of § 60-6,123, provides that “[w]henever traffic is controlled by traffic control
signals exhibiting different colored lights or colored lighted
arrows,” “such lights shall indicate and apply to drivers of
vehicles and pedestrians” as described by its subsections. In
other words, reading § 60-6,123(3)(c) in light of all parts
of the statute, a “steady red indication” includes “lighted
arrows.” We cannot read out of “steady red indication” the
general inclusion of arrows in the “traffic control signal” the
statute is meant to describe.
Thus, it is not a fair reading of the “steady red indication”
referenced in § 60-6,123(3)(c) that it includes circular lights but
excludes arrow lights. And we note that throughout § 60-6,123,
the Legislature utilized the terms “circular green indication,”
“green arrow indication,” “steady yellow indication,” “red
indication,” and “steady red indication,” while nowhere differentiating between a “steady red indication” that is circular and
one that is an arrow. The Legislature expressly differentiated
between green circles and arrows, but not for red indications.
We cannot read into the statute a distinction between arrows
and circles that deliberately is not there.
[14-16] In discerning the meaning of a statute, we must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense,
it being our duty to discover, if possible, the Legislature’s
intent from the language of the statute itself. 23 A court must
give effect to all parts of a statute, and if it can be avoided,
23
Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988,
759 N.W.2d
75 (2009).
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STATE V. ALBARENGA
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no word, clause, or sentence will be rejected as superfluous or
meaningless. 24 A statute is ambiguous when the language used
cannot be adequately understood either from the plain meaning of the statute or when considered in pari materia with any
related statutes. 25
Giving effect to all words and parts of § 60-6,123, it is not
ambiguous. It plainly provides that the “steady red indication,” a subset of “traffic control signals exhibiting different
colored light or colored lighted arrows,” encompasses “colored lighted arrows.” Such “traffic control signals” “shall
. . . apply to drivers of vehicles” in this state so as to indicate at the intersection of two one-way streets that they “may
cautiously enter the intersection to make a left turn after
stopping.”
[17,18] The Manual cannot be utilized in pari materia
with § 60-6,123 to create ambiguity in the statute where
there is none. Contrary to what the Court of Appeals suggested in its opinion, rules and regulations are not at the
same level with statutes for the purpose of an in pari materia
reading of a statutory scheme. The in pari materia doctrine
is an intrinsic aid whereby we “regard all statutes upon the
same general subject matter as part of one system, and later
statutes . . . as supplementary or complementary to those
preceding them.” 26 We look to that which has been enacted
by the same legislative body to discern that body’s uniform
design, presuming the legislative body is conscious of its
own prior enactments. 27 We have applied this in pari materia
24
In re William R. Zutavern Revocable Trust, 309 Neb. 542,
961 N.W.2d 807
(2021).
25
Johnson v. Kenney, 265 Neb. 47,
654 N.W.2d 191 (2002). See, also,
generally, Erlenbaugh v. United States, 409 U.S. 239,
93 S. Ct. 477,
34 L.
Ed. 2d 446 (1972).
26
State v. Omaha Elevator Co., 75 Neb. 637, 648,
106 N.W. 979, 983-84
(1906).
27
See id.
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doctrine as between statutes, as between regulations, 28 and as
between ordinances, 29 but we have not applied in pari materia
principles vertically between these differing legislative bodies. The U.S. Supreme Court has explained that the in pari
materia doctrine’s application makes the most sense when
the statutes were enacted by the same legislative body at the
same time, but it can also apply to laws enacted by the same
legislative body at different times, albeit with lesser force. 30
Absent an express intent to incorporate another legislative
body’s law, 31 the in pari materia doctrine does not apply as
between laws enacted by different legislative bodies at different times.
[19-22] The Legislature can delegate to an administrative
agency the power to make rules and regulations to implement
the policy of a statute, 32 but the administrative agency is limited
in its rulemaking authority to the powers delegated to it by
the statute which it is to administer. 33 In order to be valid, a
rule or regulation must be consistent with the statute under
which the rule or regulation is promulgated. 34 An administrative agency may not employ its rulemaking power to modify,
alter, or enlarge portions of its enabling statute. 35 While we
have traditionally given considerable weight to a department’s construction of an ambiguous statute it is charged
28
See, e.g., Hochstein v. Cedar Cty. Bd. of Adjustment, 305 Neb. 321,
940
N.W.2d 251 (2020).
29
See, e.g., id.
30
See Erlenbaugh v. United States, supra note 25.
31
See Charles S. Dameron, Present at Antitrust’s Creation: Consumer
Welfare in the Sherman Act’s State Statutory Forerunners, 125 Yale L.J.
1072 (2016).
32
Wagoner v. Central Platte Nat. Resources Dist., 247 Neb. 233,
526
N.W.2d 422 (1995).
33
State ex rel. Spire v. Stodola, 228 Neb. 107,
421 N.W.2d 436 (1988).
34
Robbins v. Neth, 273 Neb. 115,
728 N.W.2d 109 (2007).
35
See State ex rel. Spire v. Stodola, supra note 33.
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with enforcing, resort to contemporaneous construction of a
statute by administrative bodies is neither necessary nor proper
where the language used is clear, or its meaning can be ascertained by the use of intrinsic aids alone. 36 Section 60-6,123 is
not ambiguous. Therefore, the Manual has no bearing on our
understanding of the statute.
The State argues that even if a “steady red indication”
plainly encompasses red arrows and mandates, as a default,
that a cautious turn after stopping is permitted at a steady red
arrow signal, the Lincoln ordinance—or the steady red arrow,
by virtue of the ordinance—is a “traffic control device . . . in
place prohibiting a turn.” Again, § 60-6,123(3)(c) provides:
“Except where a traffic control device is in place prohibiting a
turn, vehicular traffic facing a steady red indication at the intersection of two one-way streets may cautiously enter the intersection to make a left turn after stopping . . . .” We disagree
with the State’s understanding of a “traffic control device.”
[23] The State overlooks that “traffic control device” is
defined in § 60-670 as “any sign, signal, marking, or other
device not inconsistent with the Nebraska Rules of the Road
placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning, or guiding traffic.” Section 10.12.030, as already discussed, is inconsistent with § 60-6,123(3)(c) of the Rules of the Road, and thus,
it would not satisfy § 60-670 for that reason. Additionally, the
reference in § 60-670 to the device being “placed or erected,”
along with the statutory reference in § 60-6,123(3)(c) to the
“traffic control device” being “in place,” and a similar reference in § 60-670 to a “[t]raffic control device” being “placed
or erected,” refers to a physical object rather than a meaning
attributed to that object vis-a-vis a local ordinance.
A uniform meaning of a steady red arrow indication, as set
forth by the Rules of the Road, is necessary for the State to
achieve the objectives of encouraging the free movement of
36
Ameritas Life Ins. v. Balka, 257 Neb. 878,
601 N.W.2d 508 (1999).
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traffic. Nothing in the language of the statutory scheme, nor
in logic, suggests that by providing an exception for a “traffic
control device . . . prohibiting a turn,” the Legislature wished
to confer upon each municipality across this state the ability to establish by ordinance different meanings for the same
steady red arrow indication explicitly defined by the Rules
of the Road. Doing so would create confusion and impede
traffic flow and would be directly contrary to the stated purpose in § 60-604 of “mak[ing] uniform the laws relating to
motor vehicles.”
By prohibiting a turn on a steady red arrow indication after
stopping, § 10.12.030 runs directly counter to the provision
of § 60-6,123(3)(c) that permits a turn on a steady red arrow
indication after stopping. The ordinance attempts to forbid that
which the Legislature has expressly authorized. Accordingly,
§ 10.12.030 is preempted by state law.
The Court of Appeals erred by failing to reverse the
decisions of the lower courts with respect to the denial of
Albarenga’s motion to quash the charge in count 2. The ordinance Albarenga was charged with violating under that count is
unenforceable because it is preempted by state law. We find it
unnecessary to address Albarenga’s assignment that the Court
of Appeals erred in taking judicial notice of the Manual.
Exclusionary Rule
It does not necessarily follow from our holding invalidating
§ 10.12.030 that the fruits of the stop supporting Albarenga’s
DUI conviction were inadmissible. Albarenga argues the
Lincoln police officers have a duty to know the Rules of the
Road and should have known the ordinance was preempted.
While law enforcement officers have a duty to know the law,
§ 10.12.030 was the law at the time of the stop, and we find
that a reasonable officer would not have anticipated our holding that § 10.12.030 is preempted by § 60-6,123(3)(c).
[24] The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons,
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houses, papers, and effects, against unreasonable searches
and seizures . . . ,” as does article I, § 7, of the Nebraska
Constitution. 37 The exclusionary rule is not found in the federal or state Constitution, but is a prudential doctrine to be
employed where the deterrence benefits of suppression outweigh its costs. 38 When the police exhibit deliberate, reckless,
or grossly negligent disregard for Fourth Amendment rights,
the deterrent value of exclusion is strong and tends to outweigh the resulting costs. 39 On the other hand, when the police
act with an objectively reasonable good faith belief that their
conduct is lawful or when their conduct involves only simple,
isolated negligence, the deterrent value is weak and tends not
to outweigh the resulting costs. 40
[25] As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred. 41 In reviewing a
challenge to the legality of an automobile stop, the question
is not whether the police officer issued a citation for a traffic
violation or whether the State ultimately proved the violation;
instead, a stop of a vehicle is objectively reasonable when
the police officer has probable cause to believe that a traffic
violation has occurred. 42 Police officers are not required to
be legal scholars, 43 but implicit in the probable cause standard is the requirement that a police officer’s mistakes be
reasonable. 44
37
State v. Barbeau, 301 Neb. 293,
917 N.W.2d 913 (2018).
38
See Davis v. United States, 564 U.S. 229,
131 S. Ct. 2419,
180 L. Ed. 2d
285 (2011).
39
Id.
40
Id.
41
State v. Barbeau, supra note 37.
42
State v. Jasa, 297 Neb. 822,
901 N.W.2d 315 (2017).
43
State v. Thalken, 299 Neb. 857,
911 N.W.2d 562 (2018).
44
State v. Matit, 288 Neb. 163,
846 N.W.2d 232 (2014).
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[26] Under most circumstances, it is unreasonable to expect
an officer to question the validity of the law the officer is
charged with enforcing. 45 Law enforcement is charged with
enforcing laws, which are presumptively valid unless and until
they are declared invalid. 46 With few possible exceptions, such
as where a law is “so grossly and flagrantly unconstitutional
that any person of reasonable prudence would be bound to see
its flaws,” “[s]ociety would be ill-served” if its law enforcement officers took it upon themselves to determine which laws
are and which are not entitled to enforcement. 47
People v. McNeil 48 illustrates a criminal ordinance that was
held not to be presumptively valid because well-established
case law had declared as preempted by state law an ordinance
substantively similar to the one under which the defendant had
been arrested and searched incident to arrest. 49 The court held
the precedent so undermined the continuing enforceability of
the ordinance that it was not objectively reasonable for the
officers to rely upon it. 50 In contrast, at the time of the stop of
Albarenga for turning on a steady red arrow signal, there was
no case law indicating § 10.12.030, or any similar ordinance,
was preempted. The Court of Appeals’ decision and the lower
courts’ conclusions in this case illustrate this fact.
It was objectively reasonable for the officer who stopped
Albarenga to presume that § 10.12.030 was enforceable,
and there is no dispute that the officer observed Albarenga’s
45
See, Illinois v. Krull, 480 U.S. 340,
107 S. Ct. 1160,
94 L. Ed. 2d 364
(1987); Michigan v. DeFillippo, 443 U.S. 31,
99 S. Ct. 2627,
61 L. Ed. 2d
343 (1979).
46
See Michigan v. DeFillippo, supra note 45.
47
See id.,443 U.S. at 38.
48
People v. McNeil, 96 Cal. App. 4th 1302,
118 Cal. Rptr. 2d 54 (2002).
49
See, also, Carcamo v. Los Angeles County Sheriff ’s Dept., 68 Cal. App. 5th
608,
283 Cal. Rptr. 3d 647 (2021); People v. Cox,
168 Cal. App. 4th 702,
85 Cal. Rptr. 3d 716 (2008).
50
People v. McNeil, supra note 48.
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failing to comply with § 10.12.030. The county court did
not err in denying Albarenga’s motion to suppress, and the
Court of Appeals, albeit on different grounds, did not err in
so holding.
CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals’
decision with respect to Albarenga’s conviction on count 2 for
violating § 10.12.030 and remand the cause to the Court of
Appeals with directions to reverse the judgment of the district
court on count 2 and to direct the district court to remand the
cause to the county court with directions to vacate the conviction on count 2 and to dismiss that charge of the complaint.
Affirmed in part, and in part reversed
and remanded with directions.
