State v. Colgrove, 40788

• Decision Date: 20 April 1977
• Docket Number: No. 40788,40788
• Citation: 198 Neb. 319,253 N.W.2d 20
• Parties: STATE of Nebraska, Appellee, v. Richard D. COLGROVE, Appellant.
• Court: Nebraska Supreme Court

Page 20

253 N.W.2d 20

198 Neb. 319

STATE of Nebraska, Appellee, v. Richard D. COLGROVE, Appellant.

No. 40788.

Supreme Court of Nebraska.

April 20, 1977.

Syllabus by the Court

1. 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.R.S.1943.

2. 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.

3. An investigatory stop and search is not constitutionally permissible where the officer has no reasonable suspicion a person is committing, has committed, or is about to commit a crime.

4. A search prosecuted in violation of the Constitution of the United States or the Nebraska Constitution is not made lawful by what it brings to light.

James T. Hansen, Hugh L. Kenny, Asst. Public Defender, Gering, for appellant.

Paul L. Douglas, Atty. Gen., Terry R. Schaaf, Asst. Atty. Gen., Lincoln, for appellee.

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

CLINTON, Justice.

The sole issue on this appeal is whether certain physical evidence, seized in a search of the defendant's person and automobile and received in evidence at trial over the defendant's objection, should have been suppressed because the search and seizure were without the probable cause required by the Fourth Amendment to the Constitution of the United States and Article I, section 7, of the Nebraska Constitution. See, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. Previous to trial defendant had filed a timely motion to suppress under the provisions of section 29-822, R.R.S.1943. After a pretrial evidentiary hearing the motion to suppress was denied. We find that the motion to suppress should have been sustained and that therefore the defendant's conviction on charges of possession of marijuana and possession of a concealed weapon must be reversed.

The essential facts upon which a determination of the issue depends are not disputed in the record and are as follows. On the evening of August 28, 1975, at about 11 p. m., officer Miller of the Minatare, Nebraska, police department and deputy sheriff Aeschliman of Scotts Bluff County met, pursuant to previous arrangement, on a street in Minatare. Aeschliman had requested that Miller meet him to assist in locating the Arapahoe sisters, who lived some place north of Minatare and for whose arrest Aeschliman testified he had warrants. At about 11:15 p. m., the officers, each in his own vehicle, were parked in an off-street parking area immediately south of the intersection of Main and Railroad Streets in Minatare. While the officers were parked, an automobile belonging to the defendant Colgrove and driven by a young man by the name of Evans, in which Colgrove and a young man by the name of Boyer were passengers, was traveling west on Railroad Street. It stopped at a traffic sign on the east side of Main Street and then made a right-hand turn to go north on Main Street. At the time the Colgrove car stopped at the stop sign the officers were within 50 to about 100 feet from the place where the car stopped. Earlier Miller had informed Aeschliman that the Arapahoe sisters might be in a car belonging to the Herrera family. When Miller saw the defendant's car he informed Aeschliman that it might be the Herrera car. Aeschliman then stated, " 'I will check that car out,' " and asked Miller to back him up. Aeschliman proceeded to follow the defendant's car as it traveled north on Main Street and Miller followed in his own police car. Evans drove several blocks north on Main Street and then into a parking lot, and turned the car about preparatory to returning to Main Street and going back in the direction from which he had come. At that point the car was stopped by Aeschliman who signaled and shouted at its occupants. At about the same time the two officers parked their cars respectively to the front and to the rear of the Colgrove automobile. When the officers stopped their own cars they became aware that there were three males in the car and no women. Aeschliman acknowledged at trial that his only purpose in stopping the car was to serve warrants on the Arapahoe sisters and that when he got out of his own car he knew they were not in the Colgrove vehicle. The officers acknowledged that they had observed no violations of law by the driver of the car or its occupants. Neither the car nor its occupants had done anything to arouse the suspicion of the officers. Neither were the officers investigating any crime which would give them occasion to make an investigatory stop of the Colgrove vehicle. Nonetheless, Aeschliman announced to Miller that he was going to check the identity of the occupants of the car. He testified that his purpose was to determine that the occupants of the car were not the Arapahoe sisters. He testified he had no other reason or purpose for stopping the car, nor was he making a traffic stop. Both Miller and Aeschliman were acquainted with Colgrove who was a resident of Minatare, as were apparently the other two young men. Minatare has a population of about 1,000.

Aeschliman went up to the car and asked the persons in the car for identification. He then determined that Evans did not have a driver's license on his person. Colgrove, who was in the front seat with Evans, then got out of the car, told Aeschliman that the car was his, and he handed Aeschliman his operator's license and the motor vehicle registration. Aeschliman then directed Evans to come to the sheriff's vehicle and there made a check by radio to determine whether Evans might be driving a vehicle while his operator's permit was under suspension. The report was negative. At that time he directed Evans to exhale so he could smell his breath to test for alcoholic odor. He detected no such odor. However, he testified he smelled a slight odor of burned marijuana and that Evans' speech was slurred and he looked glassy-eyed.

Aeschliman then got out of his own car and went to the Colgrove car and directed Colgrove and Boyer to get out. At the same time he directed Miller to search the car. He ordered the defendant and Boyer to "spread eagle" against the car and then searched them. It was in the course of these searches that a small quantity of marijuana, some roach clips, a pipe, and the gun were found, none being in plain view with the possible exception of the roach clips. Colgrove and Evans were then told that they were under arrest and were handcuffed. Boyer was released. There is some dispute in the record as to whether the gun was found before or after the arrest was announced, but it is clear that Colgrove and Evans were in the process of being searched before the items were found. Aeschliman testified that the search of the car and of the other two parties were made because of the detection of the odor of marijuana on Evans.

The initial question in this case is, was a stop and a brief investigation reasonable in this instance? 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.R.S.1943; State v. Brewer, 190 Neb. 667, 212 N.W.2d 90. 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. State v. Brewer, supra. In State v. Aden, 196 Neb. 149, 241 N.W.2d 669, we referred to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and said: "Terry v. Ohio, supra, authorizes a limited search in the form of a patdown to determine whether a person whose actions are suspect is armed." (Emphasis supplied.) The undisputed facts in this case show that the actions of the defendant and his companions gave no reasonable ground to suspect, nor did the officers have information of any kind which could reasonably lead them to any conclusion that the occupants of the Colgrove car were committing, or were about to commit, or had committed any crime. Neither were the officers in the process of any criminal investigation which might have made it reasonable to make inquiry of the car's occupants. In short, there was nothing in the circumstances or within the officers' knowledge, as demonstrated by the record, which gave any ground whatever for an investigatory stop such as is approved by Terry v. Ohio, supra, and by this court in State v. Brewer, supra; State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129. See, also, Carpenter v. Sigler, 8 Cir., 419 F.2d 169; Brewer v. Wolff, 8 Cir., 529 F.2d 787.

Neither does this case come within the purview of State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672, where we considered and construed section 60-435, R.R.S.1943, which authorizes the stopping of a vehicle for the purpose of checking registration and operator's license. There is no claim in this case that the stop in this instance was for that limited purpose. The admitted purpose here was to determine, for some reason which the record does not disclose, the identity of the car's occupants. It is readily apparent that if an officer without any cause for suspicion whatever may stop any and all vehicles for the purpose of determining the identity of the occupants, then the expectation of privacy to which persons traveling in motor vehicles are entitled under the Fourth Amendment to the Constitution of the United States, and under Article I, section 7, of the Nebraska Constitution, is of no value whatever. In State v. Aden, supra, we said,...