State v. Anderson

• Decision Date: 24 July 1979
• Docket Number: No. 42344,42344
• Citation: 281 N.W.2d 743,204 Neb. 186
• Parties: STATE of Nebraska, Appellee, v. David M. ANDERSON, Appellant.
• Court: Nebraska Supreme Court

Page 743

281 N.W.2d 743

204 Neb. 186

STATE of Nebraska, Appellee, v. David M. ANDERSON, Appellant.

No. 42344.

Supreme Court of Nebraska.

July 24, 1979.

Syllabus by the Court

1. Criminal Law: Witnesses. When information concerning a crime is furnished by the victim or witnesses to a crime, proof of veracity or reliability of the information is not generally required.

2. Criminal Law: Police Officers and Sheriffs: Searches and Seizures. Even where probable cause sufficient to justify a formal arrest does not yet exist, in appropriate circumstances a police officer may informally detain a person in an appropriate manner in order to investigate possible criminal behavior or to maintain the status quo while obtaining more information, and the officer may conduct a limited protective search for concealed weapons when he has reason to believe the suspect is armed.

3. Criminal Law: Police Officers and Sheriffs: Probable Cause. The test of whether an investigative stop is justified is whether the police officer has a reasonable suspicion founded upon articulable facts which indicate that criminal activity has occurred or is occurring and that the suspect may be involved.

4. Criminal Law: Searches and Seizures: Arrest: Probable Cause. Probable cause justifying a search and/or an arrest exists where the facts and circumstances within the police officer's knowledge and those of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

5. Criminal Law: Police Officers and Sheriffs: Probable Cause: Searches and Seizures. In considering whether probable cause exists, the collective knowledge of the law enforcement agency for which the officer acts may be added to the personal knowledge of the officer making the search and seizure provided there has been some communication of knowledge to or direction to act from the department or officer having that knowledge to the officer making the search and seizure.

Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

Defendant Anderson was found guilty by a jury of robbery and was sentenced to a term of 5 to 7 years in the Nebraska Penal and Correctional Complex. On appeal to this court, the only error assigned is that the trial court erred in denying the defendant's motion to suppress certain evidence consisting of a sum of currency and coins, a "cake-cutter" comb with a green handle, and a pair of horn-rimmed sunglasses which were found upon the person of the defendant at the time of his apprehension and later taken from him by police officers. The bases of the motion are that the search and seizure were not supported by facts which gave rise to probable cause for the search, and the search was not incident to a lawful arrest. We affirm.

The evidence adduced at the suppression hearing and at trial would permit the triers of fact to find as fact those evidentiary matters hereafter discussed. Unless otherwise indicated in the later discussion, the facts are without dispute.

On June 21, 1978, at approximately 10:45 a. m., an armed robber pointed a handgun at the attendant of the Sinclair service station at 69th and Dodge Streets in Omaha, Nebraska, and took a sum of money which the attendant carried on his person for use in making change in the course of serving customers. At approximately 11 a. m., notification of the robbery was broadcast on the police radio and a number of officers in cruiser cars converged toward the scene. One of these officers was Kenneth R. Tyler, who was at 60th and Lake Streets at the time he received the call. Officer Tyler was apparently informed that the robber was an armed, black male about 25 years of age, 5 feet 6 inches tall, weighing about 120 pounds, dressed in dark-colored pants, and wearing a reddish shirt. Upon receiving this information, Tyler drove to 66th Street and started south toward the robbery scene. It is inferable from the testimony that Tyler had been informed that the robber left the station on foot and was northbound.

Shortly thereafter, Tyler reached the intersection of 66th and Burt Streets, which is about 10 or 11 blocks from the Sinclair station in question, and saw the defendant, a black male, walking northward on the west side of 66th Street. Tyler knew this area was an entirely or predominantly white neighborhood and that the nearest mixed race neighborhood was a considerable distance away. Tyler observed that this individual matched the broadcast description of the robber in all respects except he wore no shirt and was bare from the waist up. In one hand, the defendant carried a white cloth or article of clothing, later determined to be a thermal shirt, which was draped over an object held in the defendant's hand. The object was somewhat larger than a person's hand, and Tyler suspected it was a gun.

As Tyler passed the defendant, the defendant looked back over his shoulder several times and then turned west on Cuming Street. At that time Tyler decided to turn his cruiser about and did so. In the meantime the defendant had disappeared from Tyler's view. By the time Tyler had completed his turn, the defendant had changed direction and was walking east on Cuming Street and then turned north on 66th Street again. Tyler observed that, although the defendant still held the shirt in his hand, the object no longer appeared to be under the shirt.

Tyler decided to investigate and stopped the defendant on 66th Street a short distance north of Cuming Street. He asked the defendant to identify himself which the defendant did. Tyler then "patted down" the defendant and found no weapon. He did note, however, the defendant seemed to have a considerable quantity of loose money in his pockets. At about that time another cruiser officer, Nared, arrived as did Sergeant Hughes, the officer in charge of the felony investigation. Tyler left the defendant with them and walked west on Cuming Street along the path the defendant had taken to search for a weapon which he suspected the defendant had disposed of when he disappeared from view, but he found no weapon.

At some time not precisely shown by the testimony, Tyler had informed Sergeant Hughes of his observations with reference to the defendant and also of the loose money in the defendant's pants pockets. While Tyler was searching for the weapon, Nared, at the direction of Sergeant Hughes, made the defendant empty his pockets. The contents included three $20 bills, one $10 bill, five $5 bills, thirteen $1 bills, 24 quarters 31 dimes, 1 half dollar, 13 nickels, and 8 pennies, as well as the comb and a pair of horn-rimmed sunglasses. After the pockets were emptied, the property was returned to the defendant and he was taken to the Sinclair station for a showup. The victim could not positively identify the defendant as the robber although he fitted the physical description. The victim particularly noted the defendant did not have on a red shirt or the dirty red stocking cap which were worn by the robber at the time of the holdup. Later, a search was made for the red shirt and stocking cap but these were never found.

After the showup, Sergeant Hughes directed Tyler and Nared to take the defendant to the police station for interrogation by other officers. Sergeant Hughes and two other police officers then went back to 66th and Cuming Streets and, after a short search, found a handgun in some shrubs at the residence at 904 North 66th Street at a point about 75 feet west of the intersection of 66th and Cuming Streets. This weapon was identified at trial as the style of weapon used by the robber. The victim also identified the "cake-cutter" comb as being like the one he observed in the hip pocket of the robber when the latter turned to walk away, and identified the sunglasses as being like those worn by the robber. He was uncertain of the exact amount of money taken, but was able to estimate the approximate amount, including the fact that it included only three $20 bills, a few $5 and $10 bills, a considerable number of $1 bills, and a large number of coins.

The defendant did not testify at trial nor at the suppression hearing.

An analysis of the issue raised by the defendant and the evidence leads to two inquiries. Was Tyler's investigative stop of defendant justified, and was there probable cause for the later search of defendant's person at the direction of Sergeant Hughes?

In this particular case we begin with the undisputed fact that a felony had been committed and all of the officers knew this. They were acting upon the complaint and information furnished by the victim of the crime and not merely upon information from an informant, nor merely upon their own observations of suspicious conduct. Generally, proof of veracity or reliability is not required in the case of information furnished by the victim or witnesses of the crime. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345. Such persons are not to be viewed in the same way as the usual police informant. See, State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; United States v. Wilson, 479 F.2d 936 (7th Cir., 1973).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court of the United States said: "(A) police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." See, also, State v. Brewer, 190 Neb. 667, 212 N.W.2d 90. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the court...