State v. Pope

• Decision Date: 26 December 1974
• Docket Number: 39395,Nos. 39394,s. 39394
• Citation: 224 N.W.2d 521,192 Neb. 755
• Parties: STATE of Nebraska, Appellee, v. Richard POPE, Appellant. STATE of Nebraska, Appellee, v. Evelyn KILGORE, Appellant.
• Court: Nebraska Supreme Court

Page 521

224 N.W.2d 521

192 Neb. 755

STATE of Nebraska, Appellee, v. Richard POPE, Appellant.

STATE of Nebraska, Appellee, v. Evelyn KILGORE, Appellant.

Nos. 39394, 39395.

Supreme Court of Nebraska.

Dec. 26, 1974.

Syllabus by the Court

1. Any assignment of error that requires an examination of evidence cannot prevail on appeal in the absence of a bill of exceptions.

2. Section 29--822, R.R.S.1943, intends, unless within the exceptions contained in the statute, that motions to suppress evidence should be finally determined before trial, but that the trial court is not precluded from correcting errors at the trial.

3. A search of a place of residence without a warrant is not justified under the Fourth Amendment to the Constitution of the United States except for probable cause and the existence of exigent circumstances or other recognized exception.

4. Where the information in the possession of the officers leads to the conclusion that the place of residence is the scene where a felony is being committed and they have evidence which indicates this is the fact and where there is great likelihood that the evidence will be destroyed or removed before a warrant can be obtained, then exigent circumstances may be said to exist.

5. The existence of probable cause must be determined by a practical, and not by any technical, standard.

6. In the absence of a showing that the defendants involved would be prejudiced by the consolidation for trial of criminal prosecutions, such consolidation is proper where it could have been alleged that the defendants participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

7. Even where criminal prosecutions are otherwise properly consolidated for the purpose of trial, the court may grant the defendants involved therein separate trials under section 29--2002(4), R.R.S.1943, upon a showing that prejudice will result from a joint trial.

8. The ruling of a trial court upon a motion for consolidation or severance of criminal prosecutions that were properly joinable in a single indictment, information, or complaint will not be disturbed on appeal in the absence of an abuse of discretion.

9. In determining if separate counts in an indictment constitute the same offense, the test to be applied is whether each provision requires proof of additional facts or evidence.

10. In order to obtain a review of alleged errors occurring during the trial, such errors must be pointed out to the trial court in a motion for a new trial and a ruling obtained thereon.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Ivory Griggs, Asst. Public Defenders, Omaha, for appellants.

Clarence A. H. Meyer, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

The defendants herein were each charged in separate informations with two counts of possession of a controlled substance with the intent to deliver, count I in each information charging the respective defendant with the possession of heroin; and count II charging the possession of cocaine. The cases were thereafter consolidated for trial and each defendant was convicted on both counts. The defendants now appeal their convictions raising the several assignments of error hereinafter referred to. We modify and affirm.

The relevant events leading up to the charges filed against the defendants in these cases began at approximately 11:55 p.m., June 10, 1973, when Sergeant Charles Parker of the vice and narcotics unit of the Omaha police department began a surveillance of a house located at 2534 North Sixteenth Street in Omaha. The officer at that time was particularly interested in two cars parked behind that house, including a red Volkswagen. Prior to beginning the surveillance, Officer Parker had arranged to have three other police officers located in the vicinity of the intersection of Twenty-eighth and Bristol Streets in Omaha. At approximately 12:55 a.m., June 11, 1973, Officer Parker observed a Negro female leaving the house at 2534 North Sixteenth Street. He testified that he saw her go to the rear of the house and that immediately thereafter he saw the red Volkswagen driven away. As Officer Parker followed the Volkswagen in his cruiser, he made radio contact with the officers located at Twenty-eighth and Bristol Streets and informed them that the suspect was proceeding toward their location. When the Volkswagen arrived at that location, it was stopped by the officers who had been waiting there and the woman driving the automobile was arrested. That woman was identified as the defendant, Evelyn Kilgore. A brief search of the purse of the defendant Kilgore was conducted at the scene. At that time it was discovered that the purse contained quantities of substances which were later identified as heroin and cocaine. While Officer Parker maintained custody of the defendant Kilgore, the other three officers proceeded to the house at 2534 North Sixteenth Street. Upon arriving there, they entered the house and discovered the defendant Richard Pope in the act of attempting to dispose of or destroy certain powdery substances which were later identified as heroin and cocaine. The defendant Pope was arrested at that time.

The defendants were thereafter charged with the offenses previously referred to. Motions were made by each of the defendants to suppress certain of the physical evidence seized at the time of their arrest. On July 17, 1973, hearing was held on those motions and the matter was taken under advisement by the court. Each of the motions was subsequently overruled.

We shall first consider the contention of the defendants that the District Court erred in overruling their motions to suppress, their claim being that the exhibits and other physical evidence received during the trial were the result of an unlawful search and seizure and therefore in violation of their constitutional rights. We wish to point out, however, that the pretrial motions to suppress made by the defendants pursuant to section 29--822, R.R.S.1943, were overruled by the court after a hearing. It is altogether possible that certain evidence and testimony were presented at that hearing which might be of assistance in disposing of defendants' claim. However, defendants failed to preserve in the record the evidence upon which the District Court based its decision to overrule the motions to suppress at the hearing set for that purpose.

It is the general rule that any assignment of error which requires an examination of evidence cannot prevail on appeal in the absence of a bill of exceptions. State v. Kortum, 176 Neb. 108, 125 N.W.2d 196 (1963). We are faced with the issue of whether the State, in spite of the fact that it had apparently once sustained its burden of proving the legality of the searches in question, was nevertheless obligated at trial to prove again the legality of those searches. If the State had no such obligation, it would seem our consideration need only be addressed to the District Court's rulings on the motions to suppress.

We believe that the State, having once established the legality of police searches, is not again obligated, at trial, to prove that legality when introducing the evidence obtained through those searches. As were stated in the case of State v. Smith, 184 Neb. 363, 167 N.W.2d 568 (1969); 'It is clearly the intention of section 29--822, R.R.S.1943, that motions to suppress evidence are to be ruled on and finally determined before trial * * * unless within the exceptions contained in the statute. * * * We conclude that section 29--822, R.R.S.1943, intends, unless within the exceptions contained in the statute, that motions to suppress evidence shoudl be finally determined before trial, but that the trial court is not precluded from correcting errors at the trial.' Thus, although it is true that State v. Smith, Supra, does give the trial court the option to rule anew during trial on the question of the legality of a police search, it does not require the court to do so, the obvious reason being that such a requirement would completely undo the statutory scheme established by sections 29--822 and 29--824, R.R.S.1943. We note that section 29--824, R.R.S.1943, gives the State the right to appeal from an order sustaining a motion to suppress. If the State, after once prevailing on the motion to suppress, was again required to prove the legality of the search at trial, the State's right, under section 29--824, R.R.S.1943, to bring appeal before jeopardy attached would be defeated in many cases. We are also impressed by that part of section 29--822, R.R.S.1943, providing that unless a pretrial motion to suppress is made as provided therein, objections to the use of the property as evidence thereafter shall be deemed waived. It is clear to us that the purpose of that requirement is to avoid interference with the progress of the trial by freeing the trial court from the necessity of determining the collateral issue of the legality of the searches during the trial itself. See State v. Conner, 59 Idaho 695, 89 P.2d 197 (1939), discussed in Annotation, 50 A.L.R.2d 531 at 585. Obviously, that purpose would be defeated if, in every case, the State was obligated to prove the legality of police searches at the trial, as well as at the suppression hearing. We believe, therefore, that the trial court has the option, but not the obligation, to reconsider during trial the legality of police searches. It is, of course, true that evidence relating to the legality of police searches is relevant and admissible at trial, State v. Sharp, 184 Neb. 411, 168 N.W.2d 267 (1969), but the mere fact that evidence obtained from such searches is objected to at trial does not mean that the State, having once established the admissibility of such evidence at the suppression hearing, is...