State v. Twohig

Decision Date10 May 1991
Docket NumberNo. 90-019,90-019
Citation238 Neb. 92,469 N.W.2d 344
PartiesSTATE of Nebraska, Appellee, v. Michael A. TWOHIG, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Probable Cause. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police can constitutionally stop and briefly detain a person for investigative purposes if the police have a reasonable suspicion, supported by articulable facts, that criminal activity exists, even if probable cause is lacking under the fourth amendment.

2. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. If there is no detention or seizure within the meaning of the fourth amendment to the U.S. Constitution, then the fourth amendment safeguard against an unreasonable seizure is not implicated in an encounter between a private citizen and a police officer.

3. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. Every encounter between a police officer and another individual in a public place, such as a public street, does not necessarily constitute a seizure of the individual.

4. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A police officer's merely questioning an individual in a public place, such as a request for the individual's identification, is not a seizure which is subject to the safeguard of the fourth amendment.

5. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A police officer may question a person without bringing about a seizure when the interrogation is carried on without interrupting or restraining the questioned person's movement.

6. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant.

7. Police Officers and Sheriffs: Search and Seizure: Search Warrants: Motions to Suppress: Proof. If police have acted without a search warrant, the State has the burden to prove that the search was conducted under circumstances substantiating the reasonableness of such search or seizure.

8. Constitutional Law: Police Officers and Sheriffs: Arrests: Search and Seizure: Search Warrants. If there is a lawful arrest, police have authority, without a search warrant, to conduct a full search of the person arrested, and such search is reasonable under the fourth amendment to the U.S. Constitution.

9. Search and Seizure: Arrests. A search incident to a lawful arrest need not be made immediately on arrest.

10. Search and Seizure: Arrests: Search Warrants: Warrants: Probable Cause. A search without a warrant before an arrest, also without a warrant, is valid as an incident to the subsequent arrest if (1) the search is reasonably contemporaneous with the arrest and (2) probable cause for the arrest exists before the search.

11. Search and Seizure: Police Officers and Sheriffs: Words and Phrases. "Custodial interrogation" means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.

12. Constitutional Law: Trial: Convictions: Appeal and Error. An error which constitutes a violation or deprivation of a defendant's constitutional right and which enters into the defendant's conviction does not necessarily or always require 13. Criminal Law: Trial: Appeal and Error. Harmless error exists in a bench trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the court in a judgment adverse to a substantial right of the defendant.

automatic reversal of the conviction, if the error was harmless.

14. Trial: Convictions: Evidence: Appeal and Error. Error by admission of constitutionally inadmissible evidence against a defendant is not reversible error unless, from all the evidence introduced in the defendant's trial, it appears that the defendant's conviction is realistically and highly more probable with the evidence and conversely improbable without the evidence.

15. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a court as the fact finder, since such matters are within a fact finder's province for disposition. A conviction in the bench trial of a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support a finding of guilty.

Dorothy A. Walker, of Mowbray & Walker, P.C., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, North Platte, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Michael A. Twohig appeals from the judgment of the district court for Lancaster County, which affirmed Twohig's county court conviction for drunk driving, a violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1988).

Before trial in county court, Twohig timely moved to suppress his statements to a police officer and physical evidence obtained from Twohig, including results of a breath test for alcohol in Twohig's body. See Neb.Rev.Stat. §§ 29-115 (suppression of defendant's statement) and 29-822 (suppression of physical evidence) (Reissue 1989). After the court denied the suppression motion, Twohig's case proceeded to a bench trial on the charge that Twohig had driven a motor vehicle on November 13, 1988, while he was "under the influence of alcoholic liquor ... or when [Twohig had] a concentration of .10 of one gram or more by weight of alcohol per 210 liters of his breath...." See § 39-669.07.

BACKGROUND FOR CHARGE

The Accident.

Around 11:40 p.m. on November 13, 1988, while on cruiser patrol south of Lincoln, Deputy Kirk Price of the Lancaster County Sheriff's Department responded to a radio dispatch for assistance of an officer at an automobile accident near 91st Street and Pioneers Boulevard. At the accident scene, Deputy Price saw a 1975 Chevrolet Impala headed west in the north ditch along Pioneers Boulevard. As evidenced by damage on the Chevrolet's front end, the car had struck and sheared a wooden "power pole," which was "hanging ... from [its] wires." Also at the accident site was a driver or lineman from Lincoln Electric System, since the collision had caused a "power outage." From Lincoln Electric, Price found out that "there had been a person walking in the area." Shortly thereafter, David F. Brumagen, another deputy sheriff, arrived on the scene. As the result of a registration check, Price learned that the Chevrolet was registered to a "Michael Twohig" of Lincoln. However, Price obtained no physical description for the Chevrolet's owner, Twohig.

Price's Encounter with Twohig.

Price left the accident site and set out to locate anyone "who may have been involved in that accident." After driving west on Pioneers, Price turned north from After finding the keys, Price placed Twohig in the cruiser and resumed the conversation, which was tape-recorded by Price and later transcribed. During this recorded conversation, Twohig admitted that he owned a "75 Chevy," which was at a friend's house about "8 miles from here," and that he was "too drunk to drive." In the course of the conversation, Twohig recited the alphabet, leaving out the letter e; counted backward from 100 to 85; and then asked: "[H]ow long we gotta do this?" However, Twohig generally denied driving any vehicle and being involved in any collision with a "power pole." According to Price, throughout the conversation in the cruiser, Twohig was not free to leave. There were no field sobriety tests beyond Twohig's recital of the alphabet and counting backward. Throughout this time, Price noticed that Twohig "had a strong alcohol odor. His face was kind of flushed, reddish." At the conclusion of the conversation with Twohig, Price arrested Twohig for "driving while intoxicated" because, according to Price, "based on the information and observations I--I made and gained [and] on the information that he provided with me, I felt there was probable cause to believe that he was the operator of the vehicle involved with the accident." As related by Price, "I at some point obtained his driver's license" and informed Twohig: "I'm going to take you down for a breath test."

                Pioneers on 70th Street and traveled a little over a quarter mile in an area which was generally "bushy and hilly ... not a smooth terrain [with] some fences."   The time was 11:55 p.m. when Price, still northbound [238 Neb. 95] in his cruiser, noticed a man "limping" northward along 70th Street at a point which was about a quarter mile north of Pioneers Boulevard and "just short of two miles" from the automobile accident which Price had just left.  As Price's northbound cruiser approached, the man, now facing south, "was standing right at the edge of the roadway ... at the edge of the road, right at the curb, off the roadway but right at the curb."   Price stopped his cruiser, got out, and immediately engaged in a conversation with the man.  During this conversation, Price asked the man "who he was" and "what he was doing and where he was coming from."   Price found out that the man was "Twohig," who, in response to Price's inquiries, replied that he "had been walking ... because he had left his vehicle at a friend's house [since] he was too drunk to drive."   Next, Price "[f]risked him down for weapons just for safety purposes.  And at that time [Price] also smelled a strong odor of alcohol about him."   During this "patdown" search,
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