State v. Horn
| Decision Date | 26 October 1984 |
| Docket Number | No. 84-018,84-018 |
| Citation | 357 N.W.2d 437,218 Neb. 524 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. John R. HORN, Appellant. |
Syllabus by the Court
1. Arrests. In determining the point at which an arrest has occurred, a court must look to the totality of the circumstances of a law enforcement officer's encounter with an individual and must view such circumstances objectively under a "reasonable person" standard.
2. Search and Seizure. The consent required to support a consensual search must be essentially free and unconstrained choice, and not the product of a will "overborne."
3. Arrests: Warrants: Probable Cause. A peace officer may arrest without a warrant, if the officer has reasonable cause to believe that the person to be arrested has committed a felony.
Dalke, Smith & Harris, Beatrice, for appellant.
Paul L. Douglas, Atty. Gen., and Ralph H. Gillan, Lincoln, for appellee.
John R. Horn appeals his conviction in a jury trial for burglary. Horn assigns as error the overruling of his motions to suppress and subsequent admission of certain physical evidence and his oral statement to officers.
During the morning of August 26, 1983, Sheriff Ted Henderson and Deputy Daniel Cripe of the Gage County Sheriff's Department investigated an early morning burglary at the administration building of Southeast Community College. A 4- by 2 1/2-foot dollar bill change machine had been removed from the lounge of the administration building through a broken window. Outside the broken window of the administration building, Deputy Cripe found some change, four tire tracks, some "plastic material with maroon paint on it"--apparently body putty from a vehicle--and bloodstained glass. Deputy Cripe also noticed three of the tire tracks were made by regular tires, while the fourth track was made by a mud-grip tire.
Upon return to his office Sheriff Henderson received a telephone call from Supervisor Eldon Trauernicht of Southeast Community College regarding a possible burglary suspect. Trauernicht told the sheriff that John Horn, a former employee of the college, had earlier mentioned to several coemployees that there were large sums of money in the dollar bill change machine. Trauernicht also gave the sheriff directions to Horn's residence.
Sheriff Henderson and Deputy Cripe drove to Horn's residence, a trailer house. Neither of the uniformed officers had a warrant concerning Horn or the trailer house, and neither officer was acquainted with Horn. Each officer had his weapon "snapped" into his holster.
Arriving at Horn's home around 9:30 a.m., Henderson and Cripe saw a maroon automobile parked in the driveway for the trailer. Cripe noticed that one of the car's tires was a mud-grip. The officers observed blood in the parked car, the car's back window broken out, body putty missing from the car, and change in several places on the ground near the car.
While Sheriff Henderson watched the side door of the trailer, Deputy Cripe knocked on the front door. When Horn appeared in the trailer's doorway and displayed a bandaged hand and foot, Cripe asked whether they might talk. Horn answered "Yes," and, according to Cripe, walked out of his trailer house on his own accord. While walking to the patrol car, Cripe asked that Horn come to the sheriff's office and "speak with us voluntarily." Horn responded that he would. In the patrol car, Horn sat in the right rear seat while the officers sat in front. Horn was at liberty to leave at any time. In the course of conversation, Cripe asked if Horn would consent to a search of his trailer house, but Horn replied he would "prefer not to." Sheriff Henderson proceeded to take a photograph of the trailer and automobile for use in obtaining a search warrant. At that point Horn told Cripe, "You might as well go ahead and search [the trailer house]." Sheriff Henderson radioed the Beatrice Police Department for a "consent to search" form. A Beatrice police officer arrived with a printed form having blanks to be filled in with information pertaining to a proposed search. The form was completed by the officers and signed by Horn as follows:
PERMISSION FOR SEARCH
I, John R. Horn , residing
-------------------------
(Consenting Persons)
at 101 W Hoyt Beatrice , do hereby
-------------------------
(Address)
voluntarily authorize Deputy Sheriff Daniel K Cripe
-----------------------------
(Rank/Name)
of the Gage Co. Sheriff and any officer accompanying
-------------------------
the said Daniel Cripe to search my residence, or
-------------------------
other real estate, located at 101 W Hoyt Beatrice
-----------------------------
(Address)
and/or my motor
vehicle(s) (Namely) My Maroon 1972
--------------------------
Color Year
Chevy Nova 2dr
-------------------------------------------------------------------------------
Make Model Body Style
Bearing License------ In-transit presently
-------------------------
Number Year State
parked or located at 101 W Hoyt Beatrice
--------------------------------------------------------
(Address)
AND I FURTHER UNDERSTAND that I have a right to deny the
officer(s) permission to search my property
X /s/ John Horn
--------------------------------------------------------
Signature of Consenting Person
WITNESSES
/s/ Daniel K Cripe Date 8-26-83, 1983 Time: 950am
---------------------
Signature
/s/ Ted E. Henderson
---------------------
Signature
Before Horn signed the consent form, no officer had drawn his weapon, reached for handcuffs, or told Horn he was under arrest. Also, no officer promised anything in exchange for the consent form signed by Horn. Deputy Cripe testified that although Horn was not under arrest when the consent form was signed, the deputy read Horn his "Miranda warnings" from a standard prepared form used by officers. Horn acknowledged that he understood each of the Miranda rights.
Equipped with the consent form signed by Horn, Sheriff Henderson and Deputy Cripe, after showing the consent form to Mrs. Horn at the front door of the trailer, entered the trailer and found the change machine in a bedroom. Horn had remained outside with an officer of the Beatrice Police Department. Deputy Cripe came out of the trailer, arrested and handcuffed Horn.
Upon arrival at the sheriff's office Horn was again advised of his Miranda rights. At approximately 10:50 a.m. Horn signed a form in which he acknowledged that he had been given his Miranda rights. At the sheriff's office Deputy Cripe obtained a statement "on tape" in which Horn related that he had stolen the change machine from the community college; had broken the window of his car to load the change machine; had cut his hand when he "punched" out the window during the break-in; and was further injured by the "dollar bill machine changer falling out the window on my foot."
Horn filed motions to suppress physical evidence obtained from his residence and his statement given to Deputy Cripe. Horn, 27 years old, testified at his suppression hearing. According to Horn, Sheriff Henderson and Deputy Cripe knocked on the front door of his trailer and "told me to come outside the trailer, that they wanted to ask me some questions." Horn then left his trailer without any exertion or further exhortation from the officers. Horn also testified there were no threats or promises made regarding the consent form he signed. Horn further acknowledged that he "freely and voluntarily" gave the signed "PERMISSION FOR SEARCH" form to the officers.
The district court overruled Horn's motions to suppress. As a result of a jury trial, Horn was convicted of burglary.
Horn contends that he was unlawfully arrested before the officers searched his residence. Further, Horn alleges error in overruling his motions to suppress physical evidence extracted from his home and his oral statement, the latter alleged to be an exploitation of an illegal arrest.
Horn contends that the officers made an illegal, warrantless arrest inside his trailer house, contrary to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton the U.S. Supreme Court held that a warrantless arrest inside a suspect's home, absent exigent circumstances, violates the fourth amendment to the U.S. Constitution. Was Horn arrested before the officers searched his residence? Whether the prohibition of Payton applies depends upon when and where Horn's arrest took place.
"[I]t is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home." United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980).
In State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982), we concluded that a person is "seized" and under arrest if, in view of all the circumstances surrounding the...
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