State v. O'Kelly, 35443

• Decision Date: 01 November 1963
• Docket Number: No. 35443,35443
• Citation: 124 N.W.2d 211,175 Neb. 798
• Parties: The STATE of Nebraska, Appellee, v. Dennis O'KELLY, Appellant.
• Court: Nebraska Supreme Court

Page 211

124 N.W.2d 211

175 Neb. 798

The STATE of Nebraska, Appellee, v. Dennis O'KELLY, Appellant.

No. 35443.

Supreme Court of Nebraska.

Nov. 1, 1963.

Syllabus by the Court

1. A police officer may arrest without a warrant when it appears that a felony has been committed and that there are reasonable grounds to believe that the person arrested is guilty of the offense.

2. The protection of the Fourth Amendment to the Constitution of the United States and the holdings of the United States Supreme Court in construing such protections are binding upon the courts of this state.

3. Evidence obtained as the fruit of an illegal search or arrest, in violation of the Fourth Amendment to the Constitution of the United States and the provisions of Article I, section 7, of the Constitution of Nebraska, is inadmissible in a prosecution in this state and must be excluded.

4. The applicable standard for an arrest without warrant is that there is reasonable ground to believe that a felony has been committed and to believe the person arrested is guilty of such offense. This standard, under our statutory and case law, is the same standard as that of the Fourth Amendment to the Constitution of the United States protecting persons against unreasonable seizures.

5. When a police officer acts upon information furnished him in making an arrest, there is no precise formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.

6. The reasonableness of a search or seizure in the first instance is a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the fundamental criteria laid down by the Fourth Amendment to the Constitution of the United States and in the opinions of the United States Supreme Court.

7. Facts and circumstances within an officer's knowledge must be sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

8. The practicability of obtaining a search warrant is not the controlling factor when a search is sought to be justified as incident to arrest. Each case must be determined from the particular circumstances present.

9. An accused must be brought before a magistrate in the first instance only as soon as is practical under the existing circumstances.

10. When the accused is in fact present before the magistrate at the time the complaint is filed, the court may proceed with the examination of the defendant on preliminary hearing to determine probable cause without the issuance of a warrant.

11. A preliminary hearing is not a trial within the meaning of Article I, section 11, of the Constitution of Nebraska, and there is no requirement that counsel be furnished an accused prior to that time.

12. Investigation and examination of an accused after a proper legal arrest and before a preliminary hearing is not in violation of the United States or Nebraska Constitutions and is consistent with due process.

Philip C. Sorensen, John C. Gourlay, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

WHITE, Chief Justice.

The defendant, by information, was prosecuted in Lancaster County for second degree murder. From the conviction and sentence of life imprisonment for the crime of second degree murder, the defendant appeals.

The questions involved in this case turn upon the determination of the admissibility in evidence of written and oral confessions and admissions of the defendant to the police. Summarizing the specific contentions made by the defendant from the assignments of error argued, they are:

1. The admissions and confessions of the defendant, both written and oral, are inadmissible because they were the fruits of an illegal arrest made without a warrant and without probable cause in violation of the Fourth Amendment to the Constitution of the United States.

2. A warrant for the arrest of the defendant was required even though probable cause for his arrest existed.

3. The admissions and confessions were the fruits of an illegal detention of the defendant, without counsel, because of failure to take the accused before a magistrate within the proper permissible time.

We review the evidence as it relates to these questions. Shortly after 1:30 p. m. on August 4, 1962, the body of Barbara Eastman, a young Indian girl, was discovered in the water at Oak Lake in Lancaster County, Nebraska. The police were notified and the body was taken immediately to the morgue room in the Lincoln General Hospital. An autopsy was performed which revealed that the immediate cause of death was drowning, but that severe blows which had been administered to the head, resulting in major fractures to the skull and jaw and damage to the brain, would probably have resulted in death without drowning. The evidence fixed the time of death at least 6 hours before 3:45 p. m. on August 4, 1962, when the doctor first saw the body, and at least 4 hours after the deceased, Barbara Eastman, had last eaten.

About an hour and a half after the discovery, around 3 o'clock in the afternoon of August 4, 1962, the body was definitely identified as that of Barbara Eastman by her sister, Charlene Williams, and her brother, Alvin Eastman. This identification was made at the morgue of the Lincoln General Hospital and present there at that time was a Lincoln police officer, Robert Sawdon. Immediately after this identification, Sawdon had a conversation with both the sister and the brother. The exact information conveyed by Charlene Williams and Alvin Eastman to the police officer at that time is set out as follows: '* * * and at that time I asked both Mrs. Williams and Alvin Eastman if they had any idea of who Barbara had been with the night before. Both Alvin Eastman and Mrs. Williams stated that there was only one person she could be with and that was Dennis O'Kelly. We pursued the questioning as to what they based their statements on and both Mrs. Williams singly and Alvin Eastman individually stated that Dennis O'Kelly was the only boy or the only man that she want with or had any dates with and both stated that Dennis O'Kelly had brought her to her home, which was their home, 110 North 28th, the night previously, and that he made arrangements to pick her up later.'

Both of these witnesses told Sawdon, the police officer, that the defendant had brought Barbara Eastman home the night previously and that she (Barbara Eastman) had told them that she had a date with the defendant later that night.

Barbara Eastman, the deceased; Charlene Williams, her sister; and Alvin Eastman, her brother, had been living together at their home at 110 North Twenty-eighth Street. The deceased had been dating one man and one man only, the defendant, Dennis O'Kelly. The testimony discloses that on the evening before the discovery of the body, August 3, 1962, the defendant brought Barbara Eastman home in his car. This was witnessed by both Charlene and Alvin. The deceased and the defendant were engaged in a conversation at the time he let her out of the car in front of their home. She got out of the car when it was still moving. She told them that she had a date to meet the defendant later on that evening and during the course of the evening kept watching out of the window for the approach of the car. She left about 10:30 p. m., and the next time that Charlene Williams saw her was at the morgue the next afternoon. The brother and sister testified in substance that the deceased had been going steady with O'Kelly since February, that he and he alone was the only man that she went with, that O'Kelly was a married man, that the deceased and O'Kelly were in love with each other, and that they had made plans to get married and live in Lincoln. Referring to the information furnished Sawdon at the hospital immediately after the identification, Charlene Williams, the sister testified as follows: 'Q--And did you tell them with whom your sister had gone out on the night of August 3, 1962? * * * A--I told them she had gone out with Dennis O'Kelly.'

Both Charlene Williams and Alvin Eastman knew where the defendant lived. Immediately after talking with them at the hospital, Sawdon, Alvin Eastman, and two other officers proceeded to the defendant's residence. The defendant arrived in a car, he was asked to step out of his car, he was then searched, and he was told that he was under arrest and would have to accompany Sawdon to the police headquarters. This arrest took place between 5:20 and 5:30 p. m. on Saturday, August 4, 1962. There was no conversation concerning the purpose for the arrest at the time it took place. After the arrest took place, and in the cruiser car on the way to headquarters, the defendant asked why he was being taken in and was informed he was being taken in for investigation regarding the death of Barbara Eastman. It is undisputed that no warrant had been issued for his arrest. Thereafter, on Saturday afternoon and evening, August 4, 1962, and on the Sunday following, numerous conversations and interrogations were had with the defendant, Dennis O'Kelly. For the purposes of this opinion, we will only briefly review the extent and nature of the defendant's confessions and admissions, both oral and written. The substance of them was that the defendant had been on a date with another girl on the evening of August 3, 1962, and on impulse, drove over to Barbara Eastman's house and picked her up, drove out to Oak Lake, and parked. He told Barbara Eastman he was going to break up with her, she started crying, the defendant pushed her, and Barbara Eastman kept crying and saying, 'No.' She tried to come back over and put her arms around him, and then he hit her. She became hysterical, got out of the car, and ran away crying, 'No, no.' H...