State v. Caples
| Decision Date | 16 November 1990 |
| Docket Number | No. 89-1284,89-1284 |
| Citation | 462 N.W.2d 428,236 Neb. 563 |
| Parties | STATE of Nebraska, Appellee, v. Frederick A. CAPLES, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. The trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings are clearly erroneous.
2. Constitutional Law: Search and Seizure. The fourth amendment guards against unreasonable searches and seizures by the government.
3. Constitutional Law: Search and Seizure. The criteria for judging government intrusions under the fourth amendment are twofold. First, the government must intrude upon the legitimate privacy expectations of the individual. This is the search or seizure. Second, the search or seizure must be unreasonable. A person is not protected by the fourth amendment from any government intrusion, but only those actions that are unreasonable.
4. Constitutional Law: Search and Seizure: Police Officers and Sheriffs. Whenever a police officer restrains an individual's liberty by force or some show of authority, the officer has "seized" that person for purposes of the fourth amendment.
5. Constitutional Law: Search and Seizure: Weapons. A search of a person's outer clothing in an attempt to find weapons is a "search" under the fourth amendment.
6. Constitutional Law: Search and Seizure: Police Officers and Sheriffs: Weapons. When a police officer observes conduct that leads him to believe that criminal activity may be afoot and that the persons involved in that activity may be armed and dangerous, he is entitled for the protection of himself and others to stop those persons and conduct a carefully limited search of their outer clothing in order to discover weapons which may be used to assault him. This type of search is reasonable under the fourth amendment.
Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.
Robert M. Spire, Atty. Gen., Lincoln, and Marie C. Pawol, Omaha, for appellee.
The defendant, Frederick A. Caples, appeals his conviction, pursuant to Neb.Rev.Stat. § 28-1206 (Reissue 1989), of felon in possession of a firearm.
At about 2 a.m. on March 7, 1989, two uniformed officers from the Omaha Police Division responded to a radio dispatch that shots were fired in the area of 29th Street and Patrick Avenue in north Omaha. The dispatcher informed Officers Howard and Campbell that the suspect in the incident was a black male driving a gold-colored BMW. The officers drove to the area and met Officer Hronek, who was making an unrelated traffic stop and had heard part of the dispatch. Officer Hronek and the other two officers stopped their police cruisers in the middle of the street, facing in opposite directions so that the drivers could speak to each other. Howard and Campbell informed Hronek of the description of the car and driver.
While the officers were stopped in the street, a BMW driven by a black male pulled up and stopped behind Howard and Campbell's police cruiser. Howard testified that the car was a light tan or cream-colored BMW. Hronek said, "[T]hat's our man," to Officers Howard and Campbell, approached the car, told the driver about the shooting incident, and asked him to step out of the car. Hronek asked the driver to keep his hands where he could see them and then proceeded to "pat down" the driver. During the course of the pat-down search, Hronek found a .25-caliber handgun in the left inner coat pocket of the driver. He then placed the driver under arrest. The driver of the BMW was later identified as the defendant-appellant, Caples. Caples had been convicted of a felony in California in 1986.
Caples moved to suppress evidence of the firearm on the grounds that the pat-down search of his person was illegal under the fourth amendment. Caples contended that the search was made without authority because it was warrantless, that the search was not made incident to and following a lawful arrest, that his initial detention and subsequent arrest were made without probable cause, and that the search of his person was conducted without probable cause or consent. There is no record of the district court's denial of the motion, but evidence of the gun was received during the bench trial. Caples was convicted after the issue of his guilt was submitted to the court on the police reports and the testimony received at the suppression hearing. He now appeals his conviction and assigns as error the district court's admission of evidence concerning the firearm.
The trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings are clearly erroneous. State v. Blakely, 227 Neb. 816, 420 N.W.2d 300 (1988); State v. Gibson, 228 Neb. 455, 422 N.W.2d 570 (1988).
The fourth amendment guards against unreasonable searches and seizures by the government. See U.S. Const. amend. IV. The Nebraska Constitution has a similar provision. See Neb. Const. art. I, § 7. When an individual has a reasonable and legitimate expectation of privacy in the thing to be searched or seized, he is entitled to be free from unreasonable governmental intrusion. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, the criteria for judging government intrusions under the fourth amendment are twofold. First, the government must intrude upon the legitimate privacy expectations of the individual. This is the search or seizure. Second, the search or seizure must be unreasonable. A person is not protected by the fourth amendment from any government intrusion, but only those actions that are unreasonable.
Whenever a police officer restrains an individual's liberty by force or some show of authority, the officer has "seized" that person for purposes of the fourth amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Additionally, a search of a person's outer clothing in an attempt to find weapons is a "search" under the fourth amendment. Id. In this case, Officer Hronek approached the appellant, Caples; asked him to step out of his car, keeping his hands visible at all times; and then searched his outer clothing for weapons. Obviously, Caples had a reasonable and well-recognized expectation of privacy in his physical person. He was not free to walk away from the scene, nor was he free to decline Officer Hronek's pat-down search of his body. Thus, Officer Hronek's actions in this case constituted a search and seizure of Caples. We must now consider whether the search and seizure was reasonable under prevailing fourth amendment standards.
In Terry v. Ohio, supra, the U.S. Supreme Court held that when a police officer observes conduct that...
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State v. Brooks
...the Nebraska Constitution do not protect citizens from all governmental intrusions, only from unreasonable intrusions. State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990); Hayes, supra. For a thorough discussion of the propriety of a search in the context of the particular stop, see State ......
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State v. Coleman
...to pat him down after learning the results of the license check. There is no question that Coleman was searched. See State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990) (search of person's outer clothing in attempt to find weapons is "search" under Fourth Amendment). In its order denying C......
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Andre W., In Interest of
...discover weapons which may be used to assault him or her. See, State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997); State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990). In Ybarra, supra, a pat-down search was conducted on several patrons of a public tavern. The patrons were searched durin......
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State v. Craven
...(1968). We have followed the rule established in Terry. See, State v. Williams, 249 Neb. 582, 544 N.W.2d 350 (1996); State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990). The Court of Appeals correctly characterized the holding in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.......