State v. Schlothauer, 43187

• Decision Date: 09 January 1981
• Docket Number: No. 43187,43187
• Citation: 207 Neb. 663,300 N.W.2d 194
• Parties: STATE of Nebraska, Appellee, v. Steve SCHLOTHAUER, Appellant.
• Court: Nebraska Supreme Court

Page 194

300 N.W.2d 194

207 Neb. 663

STATE of Nebraska, Appellee, v. Steve SCHLOTHAUER, Appellant.

No. 43187.

Supreme Court of Nebraska.

Jan. 9, 1981.

James T. Hansen and Douglas Warner, Gering, for appellant.

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

SUPPLEMENTAL OPINION

PER CURIAM.

In their argument at rehearing, the State urged us to hold that the arrest was not illegal under Payton v. New York, Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In the first opinion, State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980), we remanded for a determination of the existence of exigent circumstances. In the opinion of the majority of the court, we should also remand for a determination as to whether the arrest was consensual.

We do not initially make factual determinations. Such determinations are for the trial court. We cannot comply with the State's request. In the event that the evidence establishes either consent or exigent circumstances, the arrest was legal, and the escape, a criminal offense.

The court, though invited to do so, expressly does not pass on whether under Payton, supra, evidence of an escape from custody must be suppressed as the fruit of an illegal arrest, or whether under our statute, Neb.Rev.Stat. § 28-912 (Reissue 1979), an illegal arrest can be said to have been effected "in good faith under color of law."

The original opinion is confirmed with the modification set forth above.

REVERSED AND REMANDED.

BOSLAUGH, Justice, dissenting.

Upon reargument and reconsideration of this case, I am unable to join the opinion of the court because I believe it is in error in several respects.

The opinion assumes that the legality of the arrest was an issue in this case and relies upon State v. Dickson, 205 Neb. 476, 288 N.W.2d 48 (1980), in support of that premise. The opinion further relies upon Payton v. New York, Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, decided April 15, 1980, to establish that the arrest may have been illegal.

The Payton case has no application because the arrest in this case was made on August 28, 1979, more than 7 months before the Payton case was decided.

The Dickson case has no application because it involved an offense under Neb.Rev.Stat. § 28-736 (Reissue 1975) in which "legal custody" was an element of the offense.

This case is a prosecution under Neb.Rev.Stat. § 28-912 (Reissue 1979) in which legality of the custody, or arrest, is not an element of the offense. The statute provides: "(1) A person commits escape if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. Official detention shall mean arrest, detention in or transportation to any facility for custody of persons under charge or conviction of crime or contempt or for persons alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but official detention does not include supervision of probation or parole or constraint incidental to release on bail.

"(2) A public servant concerned in detention commits an offense if he knowingly permits an escape. Any person who knowingly causes or facilitates an escape commits a Class IV felony.

"(3) Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:

"(a) The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; and

"(b) The detaining authority did not act in good faith under color of law.

"(4) Except as provided in subsection (5) of this section, escape is a Class IV felony.

"(5) Escape is a Class III felony where:

"(a) The detainee was under arrest for or detained on a felony charge or following conviction for the commission of an offense; or

"(b) The actor employs force, threat, deadly weapon, or other dangerous instrumentality to effect the escape; or "(c) A public servant concerned in detention of persons convicted of crime purposely facilitates or permits an escape from a detention facility or from transportation thereto."

Since at least 1972 the use of force to resist an unlawful arrest has been prohibited. Neb.Rev.Stat. § 28-1409(2) (Reissue 1979) provides: "(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful."

In State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638 (1977), a prosecution for an assault upon a police officer making an arrest, we held that the legality of the arrest and the existence of probable cause for the arrest was not an issue in the case. We said at 374-75, 252 N.W.2d at 642...