State v. McGuire, s. 83-674

• Decision Date: 26 October 1984
• Docket Number: Nos. 83-674,s. 83-674
• Citation: 357 N.W.2d 192,218 Neb. 511
• Parties: STATE of Nebraska, Appellee, v. Michael E. McGUIRE, Appellant. to 83-678.
• Court: Nebraska Supreme Court

Page 192

357 N.W.2d 192

218 Neb. 511

STATE of Nebraska, Appellee, v. Michael E. McGUIRE, Appellant.

Nos. 83-674 to 83-678.

Supreme Court of Nebraska.

Oct. 26, 1984.

Syllabus by the Court

1. Search and Seizure: Probable Cause. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

2. Search and Seizure: Arrests: Probable Cause. Where probable cause exists for the arrest of an accused in his motor vehicle upon a public highway and at that time probable cause for the search of his vehicle exists as well, a search of the vehicle a short time later at a different location while the vehicle is still in police custody is not unreasonable even though made without a warrant.

3. Search and Seizure: Evidence. Under the inevitable discovery exception to the exclusionary rule, illegally obtained evidence which would have been discovered in the course of a proper investigation is admissible.

4. Indictments and Informations: Joinder. Offenses of the same or similar character may be joined in one information and tried together.

5. Joinder. The question of the advisability of joint or separate trials is one directed to the sound discretion of the trial court.

6. Sentences: Appeal and Error. In the absence of an abuse of discretion by the trial court, a sentence imposed within statutory limits will not be disturbed on appeal.

Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Ralph H. Gillan, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

BOSLAUGH, Justice.

The defendant, Michael E. McGuire, was charged in case No. 83-675 with robberies of Jerico's restaurant in Omaha, Nebraska, on or about October 16 and November 20, 1982, and use of a firearm in the commission of a felony on each occasion. In case No. 83-676 he was charged with first degree sexual assault and the robbery of the Spaghetti Works in Ralston, Nebraska, on or about November 13, 1982. Upon the motion of the State these cases were consolidated for trial, and the jury returned verdicts of guilty on all counts.

The defendant pleaded guilty or nolo contendere to the remaining charges against him. Those included, in case No. 83-674, the robbery of Reuben's restaurant in Omaha, Nebraska, on or about November 27, 1982, and use of a firearm in the commission of a felony; in case No. 83-677, the robbery of the Cinema Center in Omaha, Nebraska, on or about September 24, 1982, and use of a firearm in the commission of a felony; and in case No. 83-678, the kidnaping of Clarence Landen III on or about February 16, 1983, and use of a firearm in the commission of a felony.

The defendant was adjudged guilty on all counts in all cases and sentenced to imprisonment for 61 to 170 years.

The defendant has appealed and has assigned as error the overruling of his motion to suppress the evidence taken from the automobile at the time of his arrest; the consolidation for trial of cases Nos. 83-675 and 83-676; and that the sentences imposed were excessive.

The first robbery of Jerico's restaurant occurred on October 16, 1982. The evidence is that the defendant entered the lounge at approximately 11 p.m. and sat at the bar. At about 12:30 a.m. the defendant pulled out an automatic pistol and, while holding the gun on a waitress, ordered the bartender to put the money in a paper sack. Before leaving, he forced the bartender and waitress into a walk-in cooler.

The robbery of the Spaghetti Works occurred on November 12, 1982. The evidence in that case is that the defendant entered the restaurant at about 10 p.m., sat at the bar, and had several conversations with the woman who was the assistant manager. At about 11:30 p.m., while approximately 12 persons including employees and customers were in the restaurant, the defendant pulled out an automatic handgun and committed the robbery. After he had collected the money he placed everyone except the assistant manager in the walk-in cooler and then sexually assaulted the assistant manager.

The second robbery of Jerico's restaurant occurred on November 20, 1982. The evidence is that when the defendant entered the bar at about 12:30 a.m., he was recognized by the waitress who had been present during the first robbery. She attempted to leave, but the defendant pulled out a gun and forced her to stay. During this robbery, the defendant said something to the waitress about "dropping her drawers," but she was able to talk the defendant out of an assault.

The defendant was arrested in Burlingame, California, on March 2, 1983. The arresting officer had received information to be on the lookout for a gold Pontiac TransAm with Nebraska license plates, the rear plate in a holder with the word "Guam" inscribed on it. The bulletin further described a white male driver, armed and dangerous--possibly carrying a .45 automatic--and a white female passenger. At approximately 3:20 a.m., while making his rounds, the officer spotted the suspect vehicle parked in a convenience store parking lot near a phone booth in which both the defendant and his companion were standing.

The defendant was immediately handcuffed and placed in the back seat of an assisting officer's patrol car. The woman was not arrested; at the time, however, she was instructed not to move as she was being watched by a K-9 police dog. The arresting officer thereupon looked into the TransAm, where he saw, in plain view, a clear plastic baggie containing marijuana and a pipe. Conducting a search of the interior of the car, the officer found, among other things, a loaded .357 Magnum and a Walther .380 in the console between the seats. When he did not find the .45 automatic described in the bulletin, the officer took the keys from the ignition and opened the trunk. Finding luggage inside, the officer asked the defendant if he wanted it left in the trunk, where its safety was not guaranteed, or taken to the police station and inventoried. The defendant chose the latter. The inventory yielded a pair of black driving gloves, a nylon jacket, a plaid, long-sleeved shirt, and a gray tweed coat; all of which were admitted into evidence at trial and identified by some of the witnesses.

The defendant's first contention is that his motion to suppress should have been sustained because the search of the trunk of the automobile violated his fourth amendment rights.

In United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982), the Supreme Court held: "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Ross involved two separate searches of a car's trunk--one search made after the vehicle was stopped pursuant to an informant's tip, another made after the car had been taken to police headquarters. Permitting the heroin and cash found to be used against the defendant, the court reasoned that a lawful search extends to the entire area in which the sought-after object may be found and that it is not limited by the necessity for separate acts of entry to complete the search.

When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between ... glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

456 U.S. at 821, 102 S.Ct. at 2170.

In this case the arresting officer was forewarned that the defendant might be armed with a .45 revolver. Since the description of the car and its occupants was on target and the search of the vehicle's interior yielded marijuana and two other guns, it was not unreasonable for the officer to search for the .45 in the trunk. The search was further justified by the fact that the defendant's female companion could have taken the alleged gun from the car later, as could have anyone.

In Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973), the Supreme Court said: "Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not 'unreasonable' within the meaning of the Fourth and Fourteenth Amendments." In Cady a Chicago police officer was arrested; the arresting officer, who was under the impression that Chicago police officers were required to carry their service revolvers at all times, conducted a warrantless search of the car to find the gun. See, also, United States v. Nygard, 324 F.Supp. 863 (W.D.Mo.1971), where police officers had teletype information that the defendant was "alleged to have pistol in possession and has threatened to use same on father," id. at 865, and where at the time of defendant's arrest that gun was not on his person, officers had probable cause to search the car. It is well established that vehicles "may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts." United States v. Ross, supra 456 U.S. at 806 n. 8, 102 S.Ct. at 2163 n. 8.

It has also been established that where probable cause exists for the arrest of an individual in a motor vehicle, and at that time probable cause also exists to search the vehicle, then a search of the vehicle made at the police station a short time later is not unreasonable even if made without a warrant. State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975) (citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)). In Franklin, quoting Chambers, we said at 194 Neb. 640, 234 N.W.2d at 616:

"For constitutional purposes, we...