State v. Smith
| Decision Date | 02 May 1969 |
| Docket Number | No. 37089,37089 |
| Citation | 184 Neb. 363,167 N.W.2d 568 |
| Parties | STATE of Nebraska, Appellant, v. John Wesley SMITH, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. What is a reasonable search is not to be determined by any fixed formula, but is to be resolved according to the facts of the particular case.
2. The state and federal Constitutions prohibit only unreasonable searches and seizures.
3. The opening of an automobile door by a police officer solely for the purpose of determining where and to whom the motor vehicle was registered, when the owner was not being investigated for or suspected of a crime, does not constitute an unreasonable search within the constitutional prohibitions against unreasonable searches and seizures.
4. Under section 29--822, R.R.S.1943, where a motion for a suppression of evidence is filed more than 10 days prior to the commencement of trial and overruled by the court, it is not prejudicial error for the trial court at the trial to reconsider the motion to suppress the evidence. A waiver of objections to evidence on the ground that it was obtained by an unreasonable search occurs only when no objection is made more than 10 days before trial where the exceptions thereto have no application.
R. E. Richards, County Atty., E. O. Richards, Deputy County Atty., Chappell, for appellant.
Gregory J. Beal, Ogallala, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH McCOWN and NEWTON, JJ.
Defendant was charged in the district court for Deuel County with unlawfully possessing or having under his control a narcotic drug or drugs. The trial court directed a verdict of dismissal for want of sufficient evidence. This court granted the application of the county attorney to docket the proceedings for review by this court as authorized by section 29--2315.01, R.R.S.1943.
During the early morning hours of January 4, 1968, defendant was found stumbling around in a wheatfield about 2 miles west of Big Springs Junction in Deuel County. His hands were frozen and he had the appearance of being intoxicated although there was no odor of liquor on or about him. He was incoherent. He was taken to a hospital in Julesburg, Colorado, where emergency treatment was given his hands. On the way to the hospital in Ogallala, to which defendant was being removed, defendant was asked what he was on or if he was on L.S.D. He stated that he had taken something to keep him awake and nothing more. His automobile had gone into the ditch and came to a stop 75 or 80 feet north of the highway.
About 7:30 a.m., state trooper Webb was directed to investigate the stranded automobile. The car was stuck in the snow and not locked. It bore an Illinois motor vehicle license. Webb opened the door of the car to observe the license and to find out to whom it belonged. He did not enter the car at any time on this occasion. He observed two rolled cigarettes on the console and a clear plastic bag on the seat of the car containing a 'green vascilite' substance. After reporting his findings to the Sidney office, Webb took pictures of the inside and outside of the automobile. Upon the arrival of another trooper, Webb went to the hospital in Ogallala to talk to the defendant. The latter identified himself, was told by Webb that a warrant was being issued for his arrest, and that he was being held for the possession of marijuana. Defendant was then given the Miranda warnings. Webb then questioned the defendant who said that he had never smoked, that he had never used drugs until the day previous when he went on a binge in Chicago, and that he did not know anything about any marijuana being found in his car. Webb then went to Chappell, obtained a search warrant, and searched the automobile in which marijuana was found among defendant's personal effects. Exhibits 4, 5, 6, and 7 were the articles taken from the defendant's automobile under the search warrant.
On June 25, 1968, the case came on for trial before a jury. During the course of the trial and during the presentation of the State's evidence, defendant moved to suppress exhibits 4, 5, 6, 7, 8, and 9 on the ground that such evidence was obtained as the result of an unlawful search and seizure. The trial court sustained the motion and, after the State's rest, dismissed the case for want of evidence. It is the contention of the defendant that the opening of the car door by trooper Webb and thereafter observing the subject exhibits in the car was an unlawful search and that subsequent search of the car under a search warrant was the result of the unlawful opening of the car door requiring the suppression of the evidence subsequently obtained by search warrant. The State contends that the opening of the car door to identify the owner of the car is not an unlawful search and that the exhibits found by search warrant are competent and should not have been suppressed. We limit our discussion to the competency of exhibits 4, 5, 6, and 7.
The evidence in this case is not disputed that trooper Webb was directed to investigate an automobile that had left the highway and had become stranded in a wheatfield 2 miles west of Big Springs Junction. He had no information that a crime had been committed or suspected. He looked the car over and, finding it unlocked, he opened the door to determine where and to whom the car was registered. He at no time entered the car. In opening the door for the purpose stated, which is a usual procedure under such circumstances, he saw the rolled cigarettes and bag of green substance as before stated. A search warrant was later obtained and a search of the car was made. The important phase of this case is that Webb proceeded to the location of the car without any information that a crime had been committed. He was not looking for evidence of any crime, actual or suspected. He opened the car door to examine the license solely to secure the name of the registered owner, a common function of a police officer under such circumstances. He did not come to the car to search for anything and, in the course of a recognized duty, observed the contraband in the car in plain sight. There is not an iota of evidence to indicate that he opened the car door for the reason stated as a subterfuge to find incriminating evidence. The issue is whether the opening of the door under such circumstances constituted a search, Or, if it was, was it reasonable.
The state and federal Constitutions prohibit only unreasonable searches and seizures. Cotton v. United States, 371 F.2d 385 (1967); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.
In the Cotton case, it was held under the circumstances of that case that the mere opening of a car door was not an unlawful search or, in any event, not an unreasonable one. The court said: See, also, Weaver v. United States, 374 F.2d 878 (1967).
We conclude...
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State v. Pope
...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 fina......
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State v. Merrill
...the position to have such view, does not constitute a search. State v. Romonto, 190 Neb. 825, 212 N.W.2d 641 (1973); State v. Smith, 184 Neb. 363, 167 N.W.2d 568 (1969). Because Merrill has not implicated an interest protected by the Fourth Amendment, the officers' subjective motives for th......
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Black v. State
...a duty” to do so where new United States Supreme Court case calls propriety of original ruling into question); State v. Smith, 184 Neb. 363, 370, 167 N.W.2d 568, 572 (1969) (notwithstanding statutory language requiring that motions to suppress ordinarily be litigated prior to trial, trial c......
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State v. Rea, No. A-09-720 (Neb. App. 4/6/2010)
...to suppress. The portion of Pope to which the State cited is derived from the Nebraska Supreme Court's decision in State v. Smith, 184 Neb. 363, 167 N.W.2d 568 (1969). In Smith, the court stated that unless an error becomes evident at trial, a motion to suppress should be finally determined......