State v. Howard, 37011

• Decision Date: 11 April 1969
• Docket Number: No. 37011,37011
• Citation: 184 Neb. 274,167 N.W.2d 80
• Parties: STATE of Nebraska, Appellee, v. Victor C. HOWARD, Appellant.
• Court: Nebraska Supreme Court

Page 80

167 N.W.2d 80

184 Neb. 274

STATE of Nebraska, Appellee, v. Victor C. HOWARD, Appellant.

No. 37011.

Supreme Court of Nebraska.

April 11, 1969.

Syllabus by the Court

1. The State may develop workable rules governing searches and seizures to meet the practical demands of effective criminal investigation and law enforcement in the state, provided that those rules do not violate the constitutional processes of unreasonable searches and seizures.

2. When the performance of his duty requires an officer to enter upon private property, his conduct, otherwise trespass, is justifiable.

3. The protection of the Fourth Amendment to the United States Constitution is a restriction on governmental action only.

4. A search implies some exploratory investigation. It is not a search to observe that which is open and patient either in daylight or in artificial light.

5. Firemen entering upon premises in response to a call to duty do so rightfully under license of law.

6. When attention of the person making an affidavit is called to the fact that it must be sworn to and, in recognition of this, he is asked to do some corporal act and he does it, the instrument constitutes a statement under oath, irrespective of other formalities.

7. An affiant's asserted personal observation of the facts and circumstances supporting a finding of probable cause is sufficient.

8. When a magistrate has found probable cause, the court should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense, manner.

9. Observations by fellow officers engaged in a common investigation are a reliable basis for issuance of a search warrant on application made by one of their number.

10. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

Munro, Parker, Munro & Grossart, Kearney, for appellant.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and COLWELL, District Judge.

COLWELL, District Judge.

Victor C. Howard was found guilty by the district court for Sherman County of the crime of fourth degree arson, a felony, in violation of section 28--504.04, R.R.S.1943. Defendant pleaded not guilty and waived jury trial. Probation was imposed for a term of 2 years. Motion for a new trial was denied and an appeal perfected to this court.

Defendant lived and was employed at Poole, Buffalo County, Nebraska; he owned and possessed a small acreage on the edge of Rockville, Sherman County, Nebraska, improved by a vacant house in poor condition, a barn and a chicken house, the area around the improvements was fenced; and he kept some cattle there. Between 4 and 5 p.m., on August 27, 1967, Laverne Thompsen, accompanied by Samuel Sullivan, went to defendant's acreage to examine the house as an interested buyer. Thompsen had hearsay information that the defendant wanted to sell the house. They opened the gate, entered the premises, lifted the latch on a broken screen door, and entered the house. The door and several windows were open. After a brief inspection they detected the odor of smoke, which directed them to the basement where they observed two bales of straw on a ledge near the floor joists concealing an electric light bulb connected to a socket and an electrical cord extending out of the basement through a window; and they observed a small pile of ashes near the bales of straw and that the floor joists showed some evidence of burning. They left the premises and immediately reported their observations to Ruppert Claussen, fire chief for the Rockville volunteer fire department and the Rockville rural fire protection district. Chief Claussen, Thompsen, and Sullivan immediately returned to the Howard acreage and reentered the premises in the same manner. Chief Claussen made an inspection and verified the information given him; in addition he determined that the electrical cord reentered the house through a bedroom window and was coiled in a space between the window and the screen; he also determined that there was electrical power 'on' in the house. These three men then returned to Rockville about 6 p.m. Chief Claussen contacted Virgil J. Kaminski, county sheriff of Sherman County, Nebraska, who arrived in Rockville at about 10 p.m. Claussen informed Kaminski of the facts known to him; and these officers relayed this information by telephone to the office of the State Fire Marshal, Lincoln, Nebraska. Between 3 and 4 a.m. on the following morning assistant state fire marshal Wallace Barnett and deputies William Watson and Harley J. Mannier arrived in Rockville and conferred with sheriff Kaminski and chief Claussen. No surveillance had been maintained of the Howard premises; and there was concern among the officers whether or not a fire might then be burning. Sheriff Kaminski, fire marshals Barnett, Watson, and Mannier went to the Howard property at about 4 a.m., stepped over the fence, shined flashlights on the house and into the basement, looked into the basement and walked around the house. They did not enter the house and no fire was observed. These four officers left the premises and returned to Loup City, county seat of Sherman County, Nebraska. Later that morning Barnett consulted with county attorney Robert M. Martin, who prepared an affidavit for Barnett to apply for a search warrant. About 10 a.m. the affidavit was filed by Barnett with P. J. Kowalski, county judge of Sherman County, Nebraska, who issued a search warrant directed to Wally Barnett, assistant state fire marshal, to search defendant's premises and seize property, both being described. Immediately thereafter Barnett, Watson, Mannier, and Kaminski went to the Howard acreage, entered the premises, and made a search of the house. Photographs were taken; and the investigation further revealed in a closet on the main floor of the house a pile of paper, feed sacks, and other papers covering another light bulb connected to a socket and electric extension cord. Two drop cords with recepticles and light bulbs and one gallon jug with oil were seized and inventoried. Later on in the afternoon defendant was located at Poole, Nebraska; he was taken into custody and Miranda warnings were given; and, after a brief interview, defendant made oral admissions. Defendant was taken to the sheriff's office in Loup City, Nebraska, where further Miranda warnings were given him, and the defendant on the same day executed a written confession. At the preliminary hearing before the county judge, P. J. Kowalski, defendant did not testify and he offered no evidence. Defendant was represented by his own counsel at the preliminary hearing and at the trial.

Prior to trial, defendant filed a plea in abatement and a motion to suppress evidence. Upon hearing, the plea in abatement was denied and the motion to suppress granted as to witness Wallace Barnett. Appeal from this ruling on the motion was taken by the State pursuant to sections 29--824 and 29--826, R.R.S.1943, for ruling by one Judge of the Supreme Court. Ruling of the trial court was reversed, and defendant's motion to suppress was denied.

The main thrust of defendant's argument is that there was an unlawful search and seizure made; that evidence obtained thereby, both physical evidence, instruments of the crime, and the admissions subsequently obtained from the defendant, was unlawfully considered both at the preliminary hearing and at the trial of the case. We will consider this argument in the several areas covered in defendant's brief, being mindful that both the Fourth Amendment to the United States Constitution and Article I, section 7, of the Nebraska Constitution, relate to the right of the people to be secure against Unreasonable searches and seizures, and that search warrants shall issue only upon Probable cause supported by oath or affirmation.

The original discovery of the property later seized was made by Thompsen and Sullivan who trespassed upon the premises for a purpose unrelated to the crime and they removed no property. Defendant cites no cases supporting his view that this entry was an unlawful search. The protection of the Fourth Amendment is a restriction on governmental action only. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159.

A search implies some exploratory investigation. It is not a search to observe that which is open and patent, in either sunlight or artificial light. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129.

Fire is a destructive burning involving combustion which manifests itself in heat and flame. Fire consumes and destroys. Fires, reports of fires, the existence of incendiary devices, and fire prevention demand the urgent and emergency response and vigilance of all firemen and law inforcement officers to protect the public.

In Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 45 N.W.2d 549, that court said: 'The first thing to be recognized is that firemen, policemen, and similar personnel have a status sui generis. * * * Firemen make their entry under license of law, * * *. Firemen are regarded as making their entry primarily for the purpose of performing a duty owed to the public. Although the benefit of their services may accrue entirely to an individual property owner, that fact is regarded as incidental.'

When Thompsen and Sullivan reported to chief Claussen, they told him what was there, that there had been a fire, that it smelled like smoke, and it looked like it was set to start again. Claussen knew that the house was vacant and he made an immediate investigation. Firemen have a duty to promptly investigate fire reports; and they have the duty and right to enter property to combat...