State v. Brooks

• Decision Date: 18 February 1997
• Docket Number: No. A-96-417,A-96-417
• Citation: 560 N.W.2d 180,5 Neb.App. 463
• Parties: STATE of Nebraska, Appellee, v. Larry D. BROOKS, Appellant.
• Court: Nebraska Court of Appeals

Page 180

560 N.W.2d 180

5 Neb.App. 463

STATE of Nebraska, Appellee, v. Larry D. BROOKS, Appellant.

No. A-96-417.

Court of Appeals of Nebraska.

Feb. 18, 1997.

Syllabus by the Court

1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. In connection with issues pertaining to reasonable suspicion to conduct an investigative stop and probable cause to perform a warrantless search, the clearly erroneous standard of review of a district court's determination has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

2. Constitutional Law: Arrests: Search and Seizure. In the case of a lawful custodial arrest, a full search of a person is not only an exception to the Fourth Amendment's warrant requirement, but is also a reasonable search under that amendment.

3. Arrests: Search and Seizure: Police Officers and Sheriffs: Probable Cause. The validity of a warrantless arrest and the permissibility of a search incident thereto are premised upon the existence of probable cause, not on a police officer's knowledge that probable cause exists.

4. Arrests: Search and Seizure: Probable Cause. A search incident to an arrest can be made prior to an arrest as long as probable cause for the arrest exists prior to the search.

5. Arrests: Search and Seizure: Police Officers and Sheriffs: Probable Cause. It does not matter that a defendant is not formally placed under arrest until after a search as long as the fruits of the search are not necessary to support probable cause for the arrest.

6. Arrests: Search and Seizure: Probable Cause: Appeal and Error. In evaluating whether probable cause existed prior to an arrest and search incident thereto, an appellate court need not decide whether probable cause to arrest for a particular crime existed, but, rather, whether probable cause existed to arrest for some crime.

7. Constitutional Law: Arrests: Search and Seizure. A person is arrested or seized for Fourth Amendment purposes when there is a restraint on his or her freedom of movement in any significant way.

8. Search and Seizure: Police Officers and Sheriffs. A suspect's submission to an officer's show of authority constitutes a seizure.

9. Arrests: Police Officers and Sheriffs: Probable Cause: Misdemeanors. Neb.Rev.Stat. § 29-404.02(2) (Reissue 1995) authorizes a police officer to make a warrantless arrest when there is probable cause to believe that a misdemeanor is being committed in the presence of the officer.

10. Investigative Stops: Police Officers and Sheriffs. Following a Terry stop, as established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer cannot continue to press his or her investigation if the officer's original interpretation of the suspect's actions is mistaken. Contrariwise, where the continuing flow of information coming to the officer's attention after the original stop is such that additional wrongdoing occurs or is suggested, the officer may expand the inquiry.

Thomas M. Kenney, Douglas County Public Defender, and Gary D. Olson, Omaha, for appellant.

Don Stenberg, Attorney General, and James A. Elworth, Lincoln, for appellee.

MILLER-LERMAN, C.J., and IRWIN and SIEVERS, JJ.

MILLER-LERMAN, Chief Judge.

Larry D. Brooks appeals from his conviction for possession of a controlled substance, crack cocaine, a violation of Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1994). For the reasons recited below, we affirm.

FACTS

On August 15, 1995, at about 12:05 a.m., Omaha police officers James Paul and Steve Orsi were patrolling in a marked cruiser in the area of 30th and Pratt Streets in Omaha. Officer Paul testified that while patrolling, he noticed a person, later identified as Brooks, urinating while facing the interior wall of a carwash. On cross-examination, Officer Paul stated that he could see Brooks' penis during this incident.

The carwash was described as consisting of four bays with brick walls separating each bay and openings at each end. No cars were parked within the bays. A blue Cadillac that Brooks and his female companion were using that night was parked nearby. No other people were reported in the immediate area. At the suppression hearing, Brooks denied urinating at the carwash that night. He testified that he was there washing his car.

Officer Paul testified that upon seeing the activity at the car wash he concluded that Brooks should be arrested for littering. The officers stopped their cruiser and approached Brooks. Brooks was directed to come toward the officers. Contrary to the police officers' direction, Brooks walked backward, apparently toward the blue Cadillac parked in the nearby lot. According to Officer Paul, he approached Brooks, placed his hand on Brooks' arm, and escorted Brooks to the cruiser to administer a pat-down search and to arrest Brooks for littering. The officer asked Brooks to place his hands on the hood of the cruiser. Brooks did not comply. Instead, Brooks reached toward his pants pockets. The record shows that Brooks started to put his hands on the cruiser but then reached toward his pants pockets several times, thereby preventing the pat-down search until the officers handcuffed Brooks' hands behind his back.

After Brooks was handcuffed, Officer Paul patted Brooks down and in the course of the search found a "small bulge" in Brooks' right front pants pocket and removed the item. Officer Paul stated that he had not noticed anything protruding from Brooks' pockets prior to this search. The item found in Brooks' pocket was a plastic bag containing a piece of brown paper wrapped around several rocks of crack cocaine.

Brooks was taken to police headquarters. According to the "Omaha Police Department Uniform Crime Report," Brooks was charged with three offenses: littering; possession of a controlled substance, crack, with intent to deliver; and obstructing a police officer. The record on appeal does not disclose the subsequent history pertaining to the littering and obstructing a police officer offenses. An information was filed charging Brooks with possession of a controlled substance. It is the conviction of the possession charge which Brooks appeals.

Brooks filed a motion to suppress the evidence or information learned as a result of the stop and search, alleging that the search of his person was not incident to a lawful arrest, was done without valid consent, and was conducted without a valid warrant. A hearing was conducted on December 1, 1995, on the motion to suppress, and the facts recited above were testified to. The live witnesses were Officer Paul and Brooks.

In a written order dated December 14, 1995, the trial court overruled Brooks' motion to suppress and made the following findings and order:

1. Officer James Paul observed the defendant urinating in public on August 15, 1995, in Omaha, Douglas County Nebraska. This is in violation of Section 20-114 of the Omaha Municipal Code. Paul therefore had sufficient probable cause to arrest the defendant. It is irrelevant that the defendant was arrested for littering rather than indecent exposure.

2. The search of the defendant was incident to a lawful arrest. In addition the defendant was not cooperative and was acting suspiciously.

3. The defendant's motion to suppress is therefore overruled.

On January 11, 1996, a stipulated trial based primarily on the evidence at the suppression hearing was had to the bench. Brooks offered and the court admitted exhibit 2, which was a copy of Omaha Mun.Code, ch. 20, art. V, § 20-114 (1967), pertaining to indecent exposure. Brooks unsuccessfully objected to the admission of the evidence of the crack cocaine found in the search, and his motion to suppress was renewed and overruled. The trial court found Brooks guilty beyond a reasonable doubt of possession of a controlled substance. Following sentencing, Brooks timely appealed.

ASSIGNMENT OF ERROR

Brooks assigns the following error: "Probable cause to arrest the Defendant [Brooks] did not exist and accordingly the search incident to arrest was illegal."

STANDARD OF REVIEW

A trial court's ruling on a motion to suppress has traditionally been upheld on appeal unless its findings of fact are clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). However, a new standard of review has emerged in cases such as this involving the legality of investigative stops and subsequent warrantless searches. We quote from the Nebraska Supreme Court's recent decision in State v. Konfrst, 251 Neb. 214, 222-23, 556 N.W.2d 250, 258 (1996):

In light of the U.S. Supreme Court's decision in Ornelas v. U.S., --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the traditional clearly erroneous standard of review of a district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search is no longer applicable. The clearly erroneous standard has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. Id.

A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. See, State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996); State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996). In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into...