State v. Hicks, S-91-660
| Decision Date | 28 August 1992 |
| Docket Number | No. S-91-660,S-91-660 |
| Citation | 488 N.W.2d 359,241 Neb. 357 |
| Parties | STATE of Nebraska, Appellee, v. Lanny K. HICKS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings are clearly erroneous.
2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, a reviewing court takes into consideration that the trial court observed the testimony of the witnesses.
3. Constitutional Law: Investigative Stops: Search and Seizure. The Fourth Amendment to the U.S. Constitution applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.
4. Constitutional Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. Under both the federal and state Constitutions, law enforcement officers are permitted to engage in limited investigatory stops under certain circumstances in which probable cause to arrest is lacking, but only if they have a reasonable suspicion based upon specific and articulable facts that the person stopped is, was, or is about to be engaged in criminal activity.
5. Police Officers and Sheriffs: Search and Seizure. The collective knowledge of the law enforcement agency for which an officer acts may provide the basis for a search and seizure, but some communication of that knowledge to the officer conducting the search and seizure is required.
6. Police Officers and Sheriffs: Investigative Stops: Probable Cause. Flight upon the approach of a police officer is sufficient to justify an investigatory stop only when coupled with specific knowledge connecting the person stopped to involvement in criminal conduct.
7. Police Officers and Sheriffs: Investigative Stops: Probable Cause. The mere fact that a person is present in a neighborhood designated by the police as a high-crime area is insufficient to create a reasonable suspicion that the person is involved in crime.
8. Police Officers and Sheriffs: Investigative Stops. An individual's flight 9. Constitutional Law: Search and Seizure: Evidence: Trial. Evidence obtained as the fruit of an unconstitutional search and seizure is inadmissible in a state prosecution.
upon [241 Neb. 358] approach of the police patrolling a high-crime area is insufficient, standing alone, to justify an investigatory stop of the person.
10. Trial: Evidence: Appeal and Error. A prerequisite to an appeal based upon error in the admission of evidence is a timely objection stating the grounds for the objection, unless the grounds are apparent from the context.
11. Trial: Evidence: Waiver: Appeal and Error. A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.
12. Trial: Testimony: Appeal and Error. Error cannot be predicated on the admission of testimony when testimony of the same nature was previously admitted without objection.
Thomas M. Kenney, Douglas County Public Defender, and Patrick J. Boylan, Omaha, for appellant.
Don Stenberg, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.
This is a criminal case in which the State charged the defendant-appellant, Lanny K. Hicks, with being a felon in possession of a firearm, in violation of Neb.Rev.Stat. § 28-1206(1) (Reissue 1989). The defendant pled not guilty and filed motions to suppress physical evidence and statements made to the police. The trial court overruled the motions, and thereafter a jury in the Douglas County District Court found the defendant guilty of the offense charged. The trial court sentenced the defendant to prison for not less than 17 nor more than 34 months, with credit for 69 days' time served. This appeal followed.
On October 28, 1990, Officers Mark Lang and Dennis Clark of the Omaha Police Division were conducting surveillance in an area of Omaha, Nebraska, experiencing a high incidence of liquor violations and drug trafficking. From their position in a large, marked Winnebago vehicle parked at the corner of 24th and Lake Streets, the officers observed a group of black males gathered approximately a block and a half away. The group was standing near a liquor store located on the west side of 24th Street, just to the south of an alley which divides the block between Grant and Erskine Streets. Some of the men were holding liquor bottles, in violation of a city ordinance prohibiting drinking alcohol in public.
Shortly after 4 p.m., Lang and Clark contacted fellow officers John Francavilla and Mike Stewart, who were riding together in a marked police cruiser, and requested that they drive by the group of men under surveillance. The officers suspected that some of the parties might "drop or dump" alcohol or narcotics and generally just wanted to "see if we could get a reaction out of them."
Francavilla and Stewart responded by driving their cruiser eastbound through the aforementioned alley toward 24th Street. As the cruiser emerged from the alley, Francavilla and Stewart heard somebody yell, "[P]olice." Lang testified that from his position in the Winnebago, he could not hear any yelling, but saw what looked like some people shouting a warning. At that point the group began to disperse.
While Lang concentrated on the group of men near the liquor store, Clark noticed a white male wearing a dark jacket close the door of a brown station wagon and walk south on 24th Street toward the area under surveillance. Clark testified that as the cruiser emerged from the alley, he saw a black man turn and yell something to the white man, who then turned and ran up the street and around the block. Clark told When Francavilla and Stewart backed down the alley as instructed, they saw a white man in a brown leather jacket walking toward them. The officers exited their cruiser and approached the man, asking him "what he was doing, what was going on." Stewart testified that when the man said, "Nothing, I ain't doing nothing," he asked the man why he was running. At that point the man said, "I got a warrant."
Lang to instruct Francavilla and Stewart to back up and "check the party" because "there was something suspicious" about the way he "[a]ll of a sudden ... bolted."
After the officers identified the man as Hicks, they ran a check and discovered that there were in fact three outstanding warrants for Hicks' arrest. The officers arrested Hicks, and Francavilla patted him down, discovering, among other things, a clip to a .22-caliber semiautomatic pistol and a number of bullets.
Reasoning from the defendant's possession of the clip that he may have discarded or hidden a weapon nearby, Stewart searched the area. When Lang informed him by radio of the brown station wagon, Stewart approached the vehicle and ran a check on the license plates. After discovering that the car was registered to Hicks, he looked in the passenger-side window and saw the handle of a gun protruding from between the driver's seat and the front passenger seat. Stewart opened the unlocked door, seized the weapon, and returned to the cruiser.
As both officers and Hicks sat in the cruiser, Stewart and Francavilla engaged in a discussion regarding the weapon and whether it matched the clip found on the defendant. At that point Hicks stated, Both Francavilla and Stewart testified that they did not ask Hicks any questions or solicit the statement in any way, but that Hicks just blurted it out.
At trial, Hicks testified that he loaned his car to a friend, Barbara Hoffman, at approximately 12:30 p.m. on October 28, 1990. He further testified that Hoffman returned later that afternoon and told him the car had broken down. He stated that he called another friend, who drove him to 24th and Erskine Streets at about 3:45 p.m. Hicks testified that after he unsuccessfully attempted to start the car, he was walking back to his friend's vehicle when a police cruiser approached, and its occupants jumped out and asked him for identification. Hicks denied that he was running at any point prior to this encounter and testified that he did not know there was a weapon in the front seat of his car. Hoffman largely corroborated Hicks' story, testifying that she purchased the weapon that afternoon and left it in the car when the car broke down at 24th and Erskine Streets.
On appeal, Hicks argues that the trial court
A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings are clearly erroneous. State v. Patterson, 237 Neb. 198, 465 N.W.2d 743 (1991). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, this court takes into consideration that the trial court observed the testimony of the witnesses. Id.
We first note that the State does not contest the assumption implicit in Hicks' argument that the officers "seized" him prior to his statement that there was a warrant out for his arrest. See, U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (); Michigan v. Chesternut, 486 U.S 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (adopting...
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