State v. Resler

• Decision Date: 19 June 1981
• Docket Number: No. 43831,43831
• Citation: 209 Neb. 249,306 N.W.2d 918
• Parties: STATE of Nebraska, Appellee, v. William M. RESLER, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 918

306 N.W.2d 918

209 Neb. 249

STATE of Nebraska, Appellee, v. William M. RESLER, Jr., Appellant.

No. 43831.

Supreme Court of Nebraska.

June 19, 1981.

Syllabus by the Court

1. Criminal Law: Search and Seizure. Law enforcement officers may enter private premises without either an arrest or a search warrant to preserve life or property, to render first aid and assistance, or to conduct a general inquiry into an unsolved crime, provided they have reasonable grounds to believe that there is an urgent need for such assistance and protective action, or to promptly launch a criminal investigation involving a substantial threat of imminent danger to either life, health, or property, and provided, further, that they do not enter with an accompanying intent to either arrest or search. If, while on the premises, they inadvertently discover incriminating evidence in plain view, or as a result of some activity on their part that bears a material relevance to the initial purpose for their entry, they may lawfully seize it without a warrant.

2. Criminal Law: Search and Seizure. The basic elements of the emergency doctrine exception may be summarized in the following manner: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) The search must not be primarily motivated by intent to arrest and seize evidence; and (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

Whelan, Foote & Scherr, P. C., Hastings, for appellant.

Paul L. Douglas, Atty. Gen. and Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The appellant, William M. Resler, Jr. (Resler), appeals from a conviction based upon a jury verdict finding Resler guilty of four counts of burglary and two counts of first degree sexual assault. The trial court sentenced Resler to the Nebraska Penal and Correctional Complex for a term of not less than 6 years nor more than 10 years on each conviction of burglary, and for a term of not less than 10 years nor more than 15 years for each conviction of first degree sexual assault, each sentence to be served concurrently.

Resler appeals to this court, principally maintaining that the trial court erred in not suppressing certain evidence which Resler maintains was obtained in violation of his rights under the fourth amendment to the Constitution of the United States. It appears to us that the specific issue raised by Resler involving the fourth amendment has not heretofore been decided by this court. On a close reading of the record and an examination of the numerous decisions rendered by other jurisdictions which have addressed this specific fourth amendment issue, we find that the action of the trial court in refusing to suppress the evidence was, in all respects, correct. Furthermore, we find that the other assignments of error raised by Resler must likewise be rejected. The judgment must be affirmed.

The record discloses that beginning in late 1978 and continuing during 1979, Hastings, Nebraska, was afflicted by a series of unsolved burglaries as well as several sexual assaults. All of the burglaries, as well as the sexual assaults, were committed in residences occupied by females and in each instance undergarments belonging to the female occupants were taken. With the exception of a man who was charged and later released in connection with one of the sexual assaults, no one was arrested for any of these crimes until Resler was taken into custody shortly after December 11, 1979. Although the record is unclear as to the basis for the belief, it does appear that during all this time a Sergeant Murphy of the Hastings Police Department suspected that Resler was involved in all these crimes. He had asked that he be called in on any incident involving Resler, regardless of the time of day or night.

Late on the evening of December 10, 1979, the occupants of an apartment unit at 745 South Baltimore Avenue heard noises in the lower level of their apartment and called the police. The apartment was a part of a complex consisting of a series of 16 free-standing rowhouse type units. Resler lived in one of the units.

Later, in the early morning hours of December 11, and apparently before the police arrived, another tenant, Thomas Waddle, saw a prowler outside his window. Waddle watched the prowler as he went from apartment to apartment in the complex, checking doors. Waddle secured his .22-caliber rifle, went out of doors, and followed the prowler. Waddle observed the prowler enter an apartment, and when the prowler came out of the apartment Waddle ordered him to stop or be shot. The prowler started running and Waddle shot at the prowler. The prowler fell to his knees, though at the time it was uncertain as to whether he fell because he had been shot or because he was attempting to get out of range of the rifle. In any event, in a moment the prowler regained his footing and proceeded running once again. At about the time that Waddle fired his shot, a Hastings police officer arrived at the scene. When the officer heard the shot he joined in the chase. Two other civilians also joined the chase and the four of them pursued the prowler, though they were unable to apprehend him. The prowler eventually eluded the four when he went over a picket fence farther on down the street. Waddle testified that at that point he recognized the prowler as a tenant whom he knew resided in Resler's apartment, although at the moment he did not know him by name. Apparently, he had seen Resler on other occasions coming in and out of his apartment and working on his automobile near the apartment.

Two other police officers conducted a search of the neighborhood from their cruisers. Those officers, the initial responding officer, and the several civilians then reconnoitered in the parking lot outside Resler's apartment to consider what to do. A radio call had been made for Sergeant Murphy pursuant to his earlier request.

At approximately 1:05 a. m. on the morning of December 11, 1979, Sergeant Murphy arrived at the scene. The other officers present briefed Murphy on what had happened, including the fact that Waddle believed that he struck Resler when he fired at him. At this point an investigation of the outside of Resler's apartment was made and it was discovered that the apartment door was open. There were no lights on in Resler's apartment. Though no one had reported any person entering or leaving Resler's apartment, it is clear that during the time of the chase it was possible for someone to have doubled back and gone into Resler's apartment without being seen. At this point in time, Sergeant Murphy determined to enter Resler's apartment, believing that Resler had been shot and was in need of first aid.

Upon entering the apartment the officers did not find Resler present but did observe in plain view a host of items previously reported stolen in the burglaries, as well as several pairs of women's panties later used to link Resler with several unsolved sexual offenses. Nothing was seized during this entry and the officers made no effort to search the apartment except to quickly observe what was in plain sight. Realizing that Resler was not in the apartment, they immediately withdrew and sought to obtain a search warrant for the apartment. The search warrant was obtained based upon what they had observed in clear view. The first search warrant was issued at about 4:10 p. m. on December 11, 1979. It was served, and items were seized from Resler's apartment at approximately 4:30 p. m. the same day. A second search warrant was issued and served on the morning of December 13, 1979. The second search warrant was made necessary because the officers did not list in the first warrant all of the items they wanted to seize from the apartment.

Resler maintains that the search warrant was obtained with information resulting from an illegal entry into his apartment and therefore the evidence obtained was the "fruit of a poisonous tree" and inadmissible at trial. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Resler maintains that absent exigent circumstances a law enforcement officer may not enter the residence of a suspect to arrest him or search his home without a warrant or without consent to enter. Resler relies upon Payton v. New York, Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), in support of this position.

It is true that both Payton and Riddick stand for the proposition that a police officer who has not obtained either an arrest warrant or a search warrant cannot make a nonconsensual and warrantless entry into a suspect's home in the absence of exigent circumstances. The difficulty with Resler's argument is that he fails to recognize the exigent circumstances present in the instant case. While exigent circumstances generally have been defined to exist where the suspect is in a position to flee as when he is in a car, or when the evidence is located in a place or under such conditions that it is likely to be destroyed while a warrant is sought, a further condition has been recognized as an exigent circumstance authorizing a warrantless or nonconsensual entry into a suspect's home. This exception is known as the "emergency doctrine."

The applicability of the "emergency doctrine" as an exigent circumstance was reaffirmed by the U.S. Supreme Court in the recent case of Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), wherein the Court said at 392, 98 S.Ct. at 2413: "We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not...