State v. Perez
| Decision Date | 08 March 1968 |
| Docket Number | No. 36531,36531 |
| Parties | STATE of Nebraska, Appellee, v. Octaviano Joseph PEREZ, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Participation and criminal intent may be inferred from presence, companionship, and conduct before and immediately after the offense.
2. When an arrest is made without a warrant, it therefore must be based upon probable cause which exists from facts and circumstances within the officers' knowledge or of which they had reasonably trustworthy information which was sufficient to warrant men of reasonable caution in the belief that an offense has been, or is, being committed.
3. Evidence that a burglary has been committed together with evidence that some of the property taken in the burglary was discovered in the possession of the defendant, coupled with other incriminating circumstances or conduct, is sufficient to sustain a conviction for burglary.
4. An individual subjected to incustody interrogation for the purposes of eliciting incriminating statements may knowingly and intelligently waive the right to counsel being present during the course of the interrogation.
J. William Gallup, Richard J. Bruckner, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is a companion case to State v. Watson, Neb., 157 N.W.2d 156, and State v. Cook, Neb., 157 N.W.2d 151. Here Perez was tried jointly with Cook for the possession of burglary tools and burglary. Upon a jury verdict of guilty of both offenses, he was sentenced to a total of 5 years' imprisonment. He appeals. We affirm the judgment and sentence of the district court.
Perez says his arrest was illegal. We will not burden this opinion with a further description to the minutiae of the evidence. The essential facts are recited in State v. Watson, supra. The arrest of Perez was legal, and the flashlight, unrusted pry bars, and tools which Perez stooped and deposited in the bent-over grass were admissible. State v. Watson, supra. As to the armory of tools observed and found in the Missouri car close by, in which Cook was reading a newspaper looking for a 'job at 5 a.m. on the Sunday before Memorial Day, Perez eliminated and speculative doubt as to the conspiracy and their admissibility when he told Cook at the scene, 'So they got you, too.'
In the successively filed briefs on these cases, all counsel, in a point-counterpoint argument commensurate with the increasing death of their search, wax the length of their argument into a comprehensive review of all the recent cases involving illegal arrest and search and seizure. By an ingenious method of subdividing the facts and then color matching similar facts in other cases, the unity and cohesive meaning of the circumstances are destroyed. Walking on the street, changing course suddenly, depositing tools, reading a newspaper at 5 a.m. in a car with Missouri license plates, etc., may be innocent acts in themselves, but tied together they may form a series to events which, in the frame of references of human experience, forge a chain of criminal purpose. Such a combination was present here. We refuse to analyze the facts of these cases in terms of separate logic tight compartments. There was probable cause for the arrest in this case prior to the detention and the detention was legal under the statute (section 29-829, R.S.Supp., 1965), and therefore the information secured as the result of the legal detention further established probable cause for the arrest. Each case must be decided on its own facts but the evidence in this case overwhelmingly establishes probable cause for Perez' arrest. State v. Huffman, 181 Neb. 356, 148 N.W.2d 321; State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129; State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; s. 29-829, R.S.Supp., 1965. Perez says the evidence was insufficient to sustain the conviction. On the possession of burglary tools charge, it was sufficient. State v. Watson, supra. The evidence is stronger here because Perez deposited the tools in the weeds and also told Cook, 'So they got you, too.'
As to the burglary charge, defendant had in his possession a key to room 3 of the Eddington Hotel, admitted he had registered at the hotel on the day previous to his arrest under the name of Quiroz, and the room had been rented to no one subsequently. In the room were found many items (including a container of drugs and a money bag), identical to those taken in the burglary. It is not disputed that the Kubat Center Street Pharmacy was burglarized. And then we have the exclamation of Perez to Cook, 'So they got you, too,' together with the other evidence as to burglary tools. The evidence establishes recent unexplained possession and other incriminating...
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Perryman v. State
...'I know how that goes.' The Supreme Court of Nebraska, confronted with a similar situation as the one at bar, in State v. Perez, 182 Neb. 680, 157 N.W.2d 162, 2 'The basic question, under the Miranda holding, is whether the defendant, knowing his rights, voluntarily and intelligently waived......
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