State v. Dillwood

• Decision Date: 05 July 1968
• Docket Number: No. 36817,36817
• Citation: 183 Neb. 360,160 N.W.2d 195
• Parties: STATE of Nebraska, Appellee, v. Marvin DILLWOOD, Appellant.
• Court: Nebraska Supreme Court

Page 195

160 N.W.2d 195

183 Neb. 360

STATE of Nebraska, Appellee, v. Marvin DILLWOOD, Appellant.

No. 36817.

Supreme Court of Nebraska.

July 5, 1968.

Syllabus by the Court

1. In evaluation of the reasonableness of a search or seizure without warrant it is imperative that the facts be judged against an objective standard: Would the facts available to the officer at the moment of the search or the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate?

2. Objects falling in the plain view of a peace officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.

A. Q. Wolf, Public Defender, Fred J. Montag, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.

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

SMITH, Justice.

In prosecution of defendant for burglary of a fur store, furs taken from defendant's Ford automobile were admitted into evidence. A jury found him guilty, and he has appealed. He contends that no probable cause existed for the warrantless search and that the search was incident to an illegal arrest. For those reasons, he says, the district court should have suppressed the furs from evidence.

Aulabaugh Fur Store, 2951 Farnam Street, Omaha, Nebraska, was located at the southwest corner of the intersection of Farnam Street with Park Avenue. Employees of the store placed three furs in a front display window during the morning of Saturday, February 11, 1967. Tape attached to the window, which faced north toward Farnam Street and east toward Park Avenue, formed part of the 'ADT' alarm system.

On Monday, February 13, 1967, detective Dragoun, an Omaha officer, was cruising alone in an unmarked Plymouth automobile on Park Avenue. An ADT alarm at 2:40 a.m. sent him from a point only 1 1/2 blocks south of Farnam Street to the fur store. Without a stop he noticed broken glass of the display window and part of a mannequin in front. Seeing no vehicular traffic or pedestrian in the vicinity, Dragoun drove northward across Farnam Street and up a hill toward Douglas Street. While he was climbing the hill, he saw an automobile with round taillights a block ahead. It was moving northward on Park Avenue at the top of a hill between Douglas Street and Dodge Street. The grades of the two hills were 20 to 25 percent.

Dragoun accelerated in pursuit, but when he reached the top of the second hill, the automobile with round taillights was out of sight. At Dodge Street, which was one-way westward, he turned left toward Thirtieth Street and Turner Boulevard. As he crossed Thirtieth Street, he saw only two automobils. One, located west of the boulevard, did not have round taillights. The other had round taillights similar to those on the automobile he was pursuing. It was moving northward on Thirtieth Street. Dragoun immediately returned via the boulevard to Thirtieth Street where he again saw the automobile. It appeared to accelerate. Dragoun followed it northward to Cass Street, then eastward to Twenty-eighth Avenue, and then northward to California Street which was protected by stop signs on the avenue. The chase ended there.

The ADT alarm had also been received by detective Chamberlin. From his location on Thirtieth Street approximately 16 blocks north of the fur store, he had immediately proceeded southward in an unmarked Plymouth automobile. In radio communication with Dragoun, Chamberlin drove 8 blocks to California Street where he turned eastward. Nearing Twenty-eighth Avenue, he identified Dragoun's Plymouth which was following a Ford automobile northbound toward California Street. When the Ford stopped at the stop sign, the detectives parked so as to block the avenue. The occupants of the Ford were defendant driver and one other man.

Defendant exited on the run. At approximately the same time the detectives jumped out with pistols drawn. Defendant ran westward 20 feet where he stopped upon the detectives' threats to shoot him. While Dragoun was covering the passenger, who had stepped out, Chamberlin with pistol in hand led defendant by the arm back to the Ford. Patting defendant's clothing revealed a loaded revolver in his waistline, and he was placed under arrest. Chamberlin then looked through the open window of the Ford. Plainly visible on the back seat were 3 furs that proved to be those taken from the display window. Dragoun without entry had seen the furs through an open door prior to the end of defendant's flight.

We apply the fundamental criteria of constitutional search established by the United States Supreme Court. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. An officer with probable cause to believe that an automobile is carrying stolen property ordinarily possesses authority for a warrantless search of the automobile. See, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, ...