State v. Niblock

• Decision Date: 17 July 1981
• Docket Number: No. 52613,52613
• Citation: 230 Kan. 156,631 P.2d 661
• Parties: STATE of Kansas, Appellee, v. Philip Anthony NIBLOCK, Appellant.
• Court: Kansas Supreme Court

Page 661

631 P.2d 661

230 Kan. 156

STATE of Kansas, Appellee, v. Philip Anthony NIBLOCK, Appellant.

No. 52613.

Supreme Court of Kansas.

July 17, 1981.

Syllabus by the Court

In a criminal appeal, the record is examined and it is held : 1) The trial court did not err in denying appellant's motions to dismiss and suppress based upon appellant's claim of a) illegal stop of the automobile; b) warrantless arrest without probable cause; c) lack of voluntary consent to search the automobile; d) recovery and admission of illegal evidence. 2) The trial court did not err in admitting the gun over appellant's objection to improper foundation. 3) The trial court erred in allowing amendment of the complaint to add a different crime.

Harold T. McCubbin, of Harold T. McCubbin, Chartered, Norton, for appellant.

Rod Ludwig, County Atty. (argued) and Robert T. Stephan, Atty. Gen., on brief, for appellee.

HERD, Justice:

This is an appeal by Philip Anthony Niblock from his jury conviction of aggravated robbery (K.S.A. 21-3427), felony theft (K.S.A. 1980 Supp. 21-3701), aggravated assault (K.S.A. 21-3410), and unlawful possession of a firearm (K.S.A. 21-4204). His conviction is the result of a tavern robbery in Beloit.

April 29, 1980, was a routine evening in Rex Smoker, a beer tavern in Beloit. Marilyn Wendell had relieved Mike Wagner, the owner at 6:00 p.m. as bartender. The usual customers came and went throughout the evening. She took in approximately $150 that evening. The customers were, for the most part, local people. By 11:30 p.m. everyone had left the tavern except four persons and Marilyn started stocking the cooler for the next day's business. After the last customer left, Marilyn closed the tavern at midnight. She took the coins and bills from the cash register, put them in a bag, and departed by the front door, locking it behind her. The bag contained approximately $500 after Marilyn took out her salary. She started for her car intending to deposit the money in the bank's night depository, then go home. Her car was parked on the east side of the tavern in the bank parking lot. As she approached the car, she saw a person standing in the shadows in front of her car. The person walked toward her and demanded the money. Ms. Wendell thought the voice was familiar but she was unable to recognize the man because he wore a mask made of what appeared to be long underwear with holes for eyes. Marilyn continued walking toward the car and retorted, "You don't want this money." She pretended she thought he was joking and walked on to the driver's side of the car. The robber followed her, pointing a gun at her. Marilyn then coolly asked her assailant to turn the gun so she could see if it was real. Her assailant said he would show her it was real if she didn't give him the money. She relinquished the money bag to him. Her delay had given her time to observe the robber. He had on the mask, a burgundy hooded sweatshirt, faded blue jeans, a plaid flannel shirt and dirty, laced workboots.

After the robber received the money he told Marilyn not to do anything and ran south toward the alley, then turned west. She immediately got in her car and drove to the Law Enforcement Center. It was 12:13 a.m. She related the entire episode with descriptions to Randy Paxson, the dispatcher, and to policeman Roger Terry. Terry left immediately to search for the robber. Paxson notified the other officers and the investigation began. Marilyn Wendell remained at the L.E.C. for an hour or so.

Kevin Koster, deputy sheriff of Mitchell County, was called by Paxson and given the robbery information and a description of the assailant. He started patrolling the downtown area of Beloit in his private car. He saw a truck driver in the alley by the Montgomery Ward store unloading merchandise for the store. Koster stopped and asked whether the driver had seen anyone resembling the robber. The Montgomery Ward store is to the rear and west of the tavern. The driver, Thomas T. Herron, stated he had seen nothing unusual and Koster left the area to continue his investigation. A few minutes later, on reflection, Mr. Herron remembered seeing a blue Roadrunner or Charger with Cragar mag wheels parked on the right-hand side of the alley behind the bank parking lot and he'd never seen it parked there before. He recalled that while he was unloading the truck the dogs in a pen next to the alley started barking loudly. He went out of the building to ascertain the cause and saw the blue car pull out and leave. That was between 12:05 a.m., his time of arrival, and 12:20 a.m., when Officer Koster talked to him. Before he left town, Herron found Leon Lewis, the Mitchell County undersheriff, and reported this information. Lewis reported the information to Randy Paxson at the L.E.C. where Marilyn Wendell was waiting. When the news of blue car came over the dispatch, Marilyn Wendell recalled that while she was stocking the cooler for the next day's business, just before midnight, she saw a similar blue car drive slowly by the tavern. She remembered the incident because the car had driven so slowly and the driver had peered intently into the tavern. At 12:45 a.m. the dispatcher put out an "all points bulletin" describing the car and the suspect.

Kenny Bernard, Downs' police chief, was making the rounds in Downs at 12:45 a.m. and heard the part of the broadcast describing the vehicle. He wrote it down and proceeded immediately to a location on U.S. Highway 24 at the north side of Downs. He pulled in at 12:52 a.m. and flipped off his radar in case the suspect's car was equipped with a radar detector. Highway 24 runs east and west between Downs and Beloit, which are 24 miles apart. A few minutes later Bernard heard a vehicle coming from the east with a loud roaring noise. He flipped his radar on and waited for the vehicle. When the vehicle passed Chief Bernard, it was visible under a street light. It was a blue Dodge Coronet with chrome wheels matching the description he received over the radio. Chief Bernard pulled onto the highway behind the vehicle and radioed Osborne that he had the vehicle from Beloit under surveillance, giving the tag number and requesting ownership. He requested assistance from Osborne officers and asked them to set up a roadblock at the junction of U.S. Highways 24 and 281. When Chief Bernard reached that location, he turned on his red light and the vehicle responded by stopping. Osborne County undersheriff Charles Dollison and officer Mark Gill from Osborne were waiting at the designated intersection to render assistance. Bernard pulled up behind the blue car and got out of his car. Using his public address system, he told the driver to get out of the car. The driver emerged from the car and placed his hands on the top of the car and spread his legs preparatory for a search. Bernard covered him with a shotgun while Officer Dollison frisked him for a weapon. Gill and Bernard then moved away from behind their car doors. The Beloit dispatcher notified Bernard that Philip Anthony Niblock was the registered owner of the car. The driver produced a driver's license showing he was Philip Anthony Niblock, a resident of Logan. Niblock was wearing a plaid shirt, faded jeans and some brown, laced boots. He stated he had come to Osborne from Beloit. By this time, Osborne chief of police Curtis Minor had arrived at the scene. After a cursory search of the driver's area of the car for weapons, Niblock was given a Miranda warning and the officers took him to the Law Enforcement Center in Osborne.

Gary Reiter, Mitchell County sheriff, arrived at the Osborne L.E.C. around 1:24 a.m. He was immediately taken to the room where Niblock was held. Chief Minor was also present. Reiter introduced himself to Niblock and he and Niblock reviewed a form granting permission to search Niblock's car. He explained to Niblock that he did not have to give permission for the search and if he did not, a search warrant would be obtained. Niblock was also advised he was a suspect and if the search produced nothing he could be on his way. Niblock read the form and signed it at 2:20 a.m.

A search of the interior of the car produced a brown jacket from the rear deck by the back window. The jacket contained a large number of one dollar bills in the right hand pocket and a number of larger bills in the other pocket. The car trunk yielded a .22 caliber silver pistol in a brown case, a burgundy sweatshirt, a mask made from long underwear, and several rolls of coins. The items seized compared favorably with the description given by Ms. Wendell. The appellant was then arrested and charged with aggravated robbery, felony theft, and unlawful possession of a firearm.

The complaint was later amended over appellant's objection to include an additional count of aggravated assault. Appellant filed motions to dismiss and suppress which were overruled. After trial and conviction on all counts on September 11, 1980, he filed a motion for a new trial. Both were overruled and this appeal followed.

Before considering appellant's points on appeal, we would like to point out that the investigation which led to the arrest of the appellant involved numerous law enforcement officers from three cities and two counties as well as from the highway patrol. The officers worked efficiently and diligently to piece together the chain of events following the robbery. The smooth cooperation between each department evidences the professional manner in which they carried out their duties.

Niblock argues the trial court erred in overruling his motion to dismiss and motion to suppress. He argues the initial stop, the arrest and subsequent search conducted by law enforcement officers were not proper pursuant to Fourth Amendment protections under the U. S. Constitution and Section Fifteen of the Bill of Rights in the Kansas Constitution. Appellant contends the evidence was illegally recovered and should have been...