State v. Brewer

• Decision Date: 09 November 1973
• Docket Number: No. 38763,38763
• Citation: 212 N.W.2d 90,190 Neb. 667
• Parties: STATE of Nebraska, Appellee, v. David Lee BREWER, Appellant.
• Court: Nebraska Supreme Court

Page 90

212 N.W.2d 90

190 Neb. 667

STATE of Nebraska, Appellee, v. David Lee BREWER, Appellant.

No. 38763.

Supreme Court of Nebraska.

Nov. 9, 1973.

Syllabus by the Court

1. A police officer may in appropriate circumstances and in an appropriate manner approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest.

2. A peace officer may stop any person in a public place whom he reasonably suspects of committing, who has committed, or who is about to commit a crime and may demand of him his name, address, and an explanation of his actions. § 29--829, R.Supp., 1972.

3. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.

4. Probable cause exists where the facts and circumstances, within the officers' knowledge and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

5. An automobile may be searched without a warrant as an incident to a valid arrest. The justification for such search grows out of the inherent necessities of the particular situation at the time of the arrest.

6. A sentence validly imposed takes effect from the day it is pronounced and a subsequent sentence fixing a different term is a nullity.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Deputy Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

The defendant, Brewer, was charged in count I of an information with possessing a firearm with a barrel less than 12 inches in length after having been convicted of a felony. § 28--1011.15, R.S.Supp., 1972. In count II of the information he was charged with conviction of previous felonies which, if proved, would subject him to punishment as a habitual criminal. Following a verdict of guilty on count I which was rendered on August 16, 1972, on August 31, 1972, the defendant was sentenced by the court to a term of 20 months to 5 years in the Nebraska Penal and Correctional Complex. This sentence was imposed without a representative of the prosecutor's office being present. Later on the same day another hearing was held at which the prosecuting officer was represented and the State informed the court that it intended to prove the convictions necessary to punish Brewer as a habitual criminal. The court then purported to set aside the sentence imposed earlier that same day. On September 8, 1972, a hearing was held, proof was received on the prior felony convictions, and the court determined that the defendant had twice before been convicted of felonies, had been sentenced thereon, and was a habitual criminal. The court then imposed a sentence of 10 to 15 years.

Two issues are raised on this appeal. In a brief filed by counsel the setting aside of the first sentence and the resentencing as a habitual criminal is attacked. In a brief filed by Brewer pro se it is contended that the court erred in receiving into evidence a certain 357 magnum Colt revolver and certain other items because they were the fruit of an illegal arrest and an unlawful search, and the trial court therefore erred in denying the defendant's motion to suppress.

We treat the second issue first because, if the error assigned in connection therewith is well taken, the entire conviction must be set aside.

The evidence as adduced at the suppression hearing and at trial, insofar as it pertains to the admission of the physical evidence which was sought to be suppressed, was substantially as follows: On the evening of April 8, 1972, at about the hour of 7 or 8 o'clock p.m., Sergeant Pfeffer of the Omaha police department received from an identified informant a telephone call advising him that the informant had information about a robbery that might be committed that evening. Pfeffer had known the informant for 6 to 8 months and had given him both his office and home telephone numbers for the purpose of relaying information. The sergeant had previously received from the informant information which required no action but which was accurate because the police already had the information as the result of their own investigations. Pfeffer considered the informant reliable.

Pfeffer was off duty at the time the phone call was received on April 8th and made arrangements for the informant to meet Sergeant Swanson of the intelligence division in the neighborhood where the informant claimed a robbery was to take place. Pursuant to this arrangement Swanson and the informant met near a Target Store and talked for 15 or 20 minutes. There Swanson was given certain details of the planned robbery, including the location, the time, 9:30 p.m., names of three putative participants, viz. David Brewer, Warren Dittrich, and a man named Powell, and some information concerning a possible fourth participant, an alleged escaped convict. The information included the fact that two of the named participants were black and one, Dittrich, was an Indian or Caucasian. It also included description of two motor vehicles which might be used, a blue Oldsmobile and a bronze Buick, both bearing Nebraska plates. A general description of the weapons to be used was also given. These were described as being a shotgun and two handguns. This information was based upon the personal observation of the informant who had been asked to participate in the proposed crime by creating a diversion at another location. The original plan for this diversion included a discharged of a firearm by the informant with a weapon to be furnished by the informant's cohorts. Two of the named parties were neighbors of the informant and the third, Powell, was an acquaintance. The informant came to his meeting with Sergeant Swanson in a white Cadillac which was the property of Warren Dittrich, one of the alleged participants. Swanson recognized the Cadillac as belonging to Dittrich.

It is not clear from the testimony just how much of this information was given to Pfeffer in the earlier conversation with the informant, but the informant testified with reference to his conversation with Pfeffer: '. . . I informed him of what they wanted me to do, and asked him what should I do, you know, and he said, 'You go on down there at nine o'clock,' and he would have someone down there waiting for me.' Neither is it clear that all the above details were given to Swanson by the informant, but it is clear that the more significant information was included. Swanson testified that he gave all the information he received to Officer Gutchewsky who later made the arrest and supervised the search.

While Swanson and the informant were engaged in the conversation standing outside Swanson's unmarked car, the informant called to Swanson's attention an automobile which passed by, stating that it was one of the autos which was being used and that the planners were in it. Swanson saw enough of the automobile to recognize it as a blue Oldsmobile and thus fitting the description given earlier, but could not see the occupants well enough to identify them.

The informant then left the meeting with Swanson to keep a rendezvous with his associates. Swanson was informed that he was doing this. When he met them they quizzed him concerning his meeting with Swanson which they apparently observed. The informant made excuses. They told him to go back home. But, according to the informant's story at trial, they immediately followed him, stopped him, told him to go back and break a window with rocks in the Target Store, and cause a big commotion and get the police down there. The informant then went back to Swanson and advised him of what he had been told to do. Swanson at least acquiesced in the informant's carrying out his assignment or directed him to go do it. This item is in dispute.

In the meantime, the liquor lounge which was to be the target of the robbery was staked out by the police officers. No robbery took place at the time designated or at any time of the evening in question.

At about 9:30, Sergeant Swanson communicated to Officer Gutchewsky and his partner, members of a strike force, the information which he had obtained. Officer Gutchewsky and his partner, apparently pursuant to instructions, established a stake out near the Warren Dittrich residence. These two officers were assisted by two other officers in the car nearby. This was at about 10 o'clock p.m. At about 10:30 p.m., a bronze Buick automobile driven by the defendant drove by and the defendant sounded the horn and waved to the officers. The description of the car met that which the officers had been given. They stopped the car without difficulty. The defendant was asked to get out, which he did. When he was asked his name, he stated that it was Clarence Brewer. When asked for identification, he stated he had none. When asked about his business in the neighborhood, his answers were evasive and equivocal. Gutchewsky and his companion conferred. Gutchewsky said to his companion that because of past contacts he believed he recognized the defendant as David Brewer, one of the persons named by the informant. The officers then placed the defendant under arrest for giving false information to a police officer. See § 28--744, R.S.Supp., 1972.

At this point as the officers were preparing to make what they termed an inventory search of the car they received a radio call from another surveillance car stating that the blue Oldsmobile was coming down the street. They signaled with their flashlights to stop it. It continued past them. Gutchewsky followed on foot while his companion kept the defendant in custody. The other police car which was following, placed its spotlight on the Oldsmobile and it...