State v. Forney
| Decision Date | 22 March 1968 |
| Docket Number | No. 36733,36733 |
| Parties | STATE of Nebraska, Appellee, v. Darold FORNEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Probable cause for a warrantless search must be determined on the particular facts and circumstances of each case.
2. The existence of probable cause must be determined by a practical and not by any technical standard and where time is of the essence it is a highly relevant factor in evaluating the circumstances.
3. Probable cause for searching motor vehicles or other things readily moved may not be treated the same as questions arising out of searches of fixed structures.
4. The Miranda procedural requirements for conducting an in-custody interrogation for the purpose of eliciting incriminating statements do not apply to the obtaining of consent to a search under the Fourth Amendment to the Constitution of the United States.
5. The findings and holdings of a single Judge of the Supreme Court in State v. Forney, 181 Neb. 757, 150 N.W.2d 915, have been examined and are adhered to.
Fisher & Fisher, Chadron, for appellant.
Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J. and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
Defendant, tried without a jury by his consent, was convicted and sentenced for burglary. The only question presented here is the admissibility of evidence received as the result of a search of the defendant's automobile. This same question was decided adversely to the defendant by one judge of this court on the State's appeal from an interlocutory order suppressing the evidence. State v. Forney, 181 Neb. 757, 150 N.W.2d 915. The case is now before the full court for decision of the merits. We adhere in all respects to Judge Spencer's decision therein.
The facts are not disputed, are fully set out in State v. Forney, supra, and will not be recited herein except for convenience in discussion. The State here raises the further contention that, regardless of consent to the search, probable cause under the Fourth Amendment existed for the search of defendant's automobile.
A burglary had occurred at Merriman, Nebraska. The officers were alerted to look for suspects. It was between 3 and 4 a.m. Merriman is to the east of Gordon and a police officer followed the defendant's car coming from the east; when it stopped, he recognized defendant, and on inquiry the defendant said he had been in Rushville, which is west of Gordon. Defendant asked if there was anything wrong and the officer told him there had been a 'deal' at Merriman. Defendant and companion went into a cafe for awhile, on leaving defendant started to back from the curb, and when asked by a deputy sheriff, he voluntarily consented to going to the police station where the consent to the search took place. No magistrate was readily available and there was obviously no time available to secure a search warrant as the defendant was backing from the curb and leaving. Probable cause for a warrantless search must be determined on the particular facts and circumstances of each case. The existence of probable cause must be determined by a practical and not by any technical standard and where time is of the essence it is a highly relevant factor in evaluating the circumstances. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129. Probable cause for searching motor vehicles cannot be treated the same as searches of fixed structures, like houses. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Alston v. State, 30 Wis.2d 88, 140 N.W.2d 286. Considering the time that this occurred in a small community, the knowledge of a recently committed burglary, the probable false statement of the defendant as to where he came from, and the lack of time to procure a warrant, we hold that under the circumstances reasonable and probable cause existed for the search of defendant's automobile, which in turn undisputedly revealed probable cause for his arrest. This case is quite parallel to State v. Carpenter, supra, and supports strongly our holding here. It therefore becomes unnecessary in the...
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