Jackson Warren v. City of Lincoln, Nebraska James Breen Sandra L. Myers and David M. Beggs
864 F.2d 1436
8th Cir.
1989
Check Treatment

*2 HEANEY, LAY, Judgе, Chief Before ARNOLD, JOHN R. McMILLIAN, BOWMAN, FAGG, GIBSON, MAGILL, Circuit WOLLMAN, and banc. Judges, en Judge. WOLLMAN, Circuit under suit filed this Warren Jackson City of against (1982) U.S.C. § Lin- three (the City), and Lincoln, Nebraska of War- the close At officers. police coln dis- court1 case-in-chief, district ren’s Sandra Officer against as the action missed the conclu- City. Upon Myers L. verdict returned a trial, of the sion defendants, Offi- remaining of the in favor After Beggs. David Breen cers James banc,2 we affirm. en case hearing I. April 4:30 a.m. approximately At responded police Lincoln someone claimed who a man call from apartment his into to break attempted

just man story window. a second through had fled intruder, who described east, a slender foot toward scene on wearing a early twenties his male in white offi- One shirt. short-sleeved white teamed was call responded who cers intrud- tracked dog, which police awith scene the crime from east er’s scent one- four and car parked Warren’s Jackson previous filed this court opinion of Urbom, 2. The Chief K. The Honorable Lincoln, City ly, Warren Dis- for the Court District States Judge, United automatically 1987), vacated Cir. of Nebraska. trict granted. rehearing was petition for away. half blocks Warren is a slender Warren’s complaint alleged po- white male at the time of who the incident officers, lice pursuant to police Lincoln de- years wearing light- nineteen old and partment policy, violated his constitutional colored short-sleevеd shirt. police As the rights in fourth, contravention of the fifth, approached car, the Warren en- started his sixth, and fourteenth amendments false- gine away. to drive ly him, imprisoning denying him access to *3 counsel, subjecting him to harassing inter- police A flagged officer Warren down rogation, fingerprinting him, photo- and and park told him to his car. Officer graphing him. Myers approached then Warren in his car and asked for some identification. She After the district court dismissed the briefly questioned Warren and then ran a City Myers and Officer suit, from the check on squad Warren’s license from her jury returned verdicts in favor Detec- car. She outstanding discovered an war- tives Breen Beggs. and appealed. Warren rant for Warren’s arrest fоr ap- failure to The opinion held that the district pear on a Myers traffic violation. arrested committed error failing to instruct Warren on the failure-to-appear warrant, pretextual arrest, that the jury performed pat-down search, put and him post-arrest instructions on detention and in squad her car. qualified immunity erroneous, and that the district court improperly Myers dismissed took Warren to the jail Lincoln Myers and City. We complex conclude that and turned him over to Detective Warren’s detention was lawful because Breen at approximately 5:00 a.m. Breen probable cause existed to arrest him investigating been burgla- series of attempted burglary. We also ries conclude and sexual assaults that had some grounds Warren’s other for recovery April similarities to the 13 bur- are without merit. glary. questioned Breen Warren on his background and on his whereabouts earlier II. day, telling ques- Warren that he was tioning him connection with recent Warren’s primary argument is that his prowling point incidents. At during one detention was in rights violation of guaran the questioning Beggs Detective entered teed him amendment, under the fourth the room and examined Warren’s hands applicable made to the through states shoes, and looking for trace evidence. fourteenth amendment. We therefore Breen denied Warren’s requests to see an must first ascertain into which of the three attorney neither nor any Breen categories other police-citizen encounters the police Lincoln officer read Warren his encounter between Warren rights pursuant Arizona, Miranda v. falls, Poitier, see United States v. — U.S. 86 S.Ct. L.Ed.2d Cir.1987), -, U.S. 108 S.Ct. (1988),for category justifies each a differ After questioning, Breen took War- ent level of detention. ren to police station fingerprints and photographs. Beggs, who had dusted category first consists of consensual for fingerprints at the scene of the at- communications between officers and citi- tempted burglary, took prints zens, numerous involving no coercion or restraint of fingers Warren’s palms. Beggs also liberty. Such encounters do not constitute took three mug shots and three instant seizures and beyond thus are scoрe photos camera of Warren. Breen then re- the fourth amendment. See Florida turned Warren jail. Warren Royer, called 491, 497, friends, seeking money post order to L.Ed.2d 229 The second bond on the failure-to-appear warrant. Af- category is the so-called Terry stop, see waiting ter for a friend to arrive with the Terry Ohio, 21-22, 88 S.Ct. money completion and for 1868, 1879-80, his release L.Ed.2d 889 Flor- forms, Warren left the jail at 7:10 a.m. Royer, 498-99, ida v. 460 U.S. at A. 1324-25, pursuant an officer having suspicion that a a reasonable Myers Officer and Detective Breen to commit a committed or about they testified that believed lacked person for may temporarily seize the crime for the Finally, investigative purposes. limited attemptеd burglary. testimony, Such how arrests, which must be there are full-scale ever, inquiry, does not end the it is Poitier, by probable cause. supported “that well-settled test of ‘[t]he F.2d at 682. cause is police articulation of the agree All the officers’ reasonable subjective theory objective man’s but the suspicion involvement of Warren’s ” view the facts.’ United States v. justified attempted burglary the initial O’Connell, (8th Cir.) argue that Warren’s stop. The (quoting States, White v. United discovery arrest was based *4 250, (8th Cir.1971), denied, 254 405 cert. warrant, and that the detention valid arrest 926, 974, U.S. 92 S.Ct. 30 798 L.Ed.2d supported by war- at the station was — (1972)), denied, -, rant, suspicion 108 as their reasonable cert. U.S. well burgla- attempted 2857, (1988). of his involvement in 101 L.Ed.2d S.Ct. 893 banc, however, ry. rehearing On en Royer, sought sup the defendant to argument officers also had add press ground evidence on the that he was objective probable cause to arrest Warren being illegally detained he when consented attempted burglary, and that the deten- The Supreme search. Court noted that to permissible thus as incident a tion not “the fact that the officers did believe valid arrest. probable proceeded there was cause and on rule, we not consider general “As do Terry-stop a consensual or rationale would appeal on arguments or theories Roy- justifying foreclose the State from proceedings in the below.” not advanced by proving probable er's custody 1073, Newman, Wright v. 735 F.2d 1076 * * 507, 460 at 103 at U.S. S.Ct. (8th Cir.1984)(citations omitted). per The York, (citing Peters New decided 1329 v. respect tinent record with facts and York, 40, with v. 392 U.S. 88 Sibron New surrounding ar circumstances Warren’s 1889, (1968)). S.Ct. 20 L.Ed.2d 917 A rest, however, fully developed in this principle court of this enunciated this case, and those facts and circumstances are States, v. 409 F.2d 299 Klingler United proba the issue uncontroverted. When Cir.), denied, 859, (8th 90 cert. damage ble cause arises in a suit and “the 127, (1969). S.Ct. disputed susceptible or facts are not are inference, question only one reasonable Because cause for an is one of law for the court.” Linn v. by objective it is determined Garcia, (8th Cir.1976) 861 officer], at the hear- immaterial that [the (citations omitted); see also Gramenos v. ing suppress, on the motion to testified Cir.1986), Cos., Jewel had he think that he did not denied, 481 107 S.Ct. rt. U.S. ce “enough facts” which to arrest [the 1952, 95 L.Ed.2d 525 v. Garris subjec- suspect] robbery. His for armed Rowland, (5th Cir.), 1270 opinion is material. tive 103 74 U.S. (citations omitted); also Id. at see such circum L.Ed.2d 121 Under Salinas-Calderon, v. United States stances, general against rule consider (10th Cir.1984) (“[S]ince F.2d ing arguments appeal ap new less overrule an courts have never hesitated to Newman, peal. F.2d Wright See proba he officer’s determination that opt We therefore to exercise our arrest, consistency suggests ble cause to reaching in favor of discretion despite may find also Singleton Wulff, cause issue. See that he did not have 106, 120-21, 2868, 2877-78, judgment an officer’s arrest.”); United States L.Ed.2d 826 Lester, (8th Cir.1981) ported that a slender white male in his (“the of the arrest validity should be early wearing twenties a white short- judged by arresting whether the officers sleeved shirt had gain entry tried to into actually arrest, cause for the apartment his second floor by attempting gave rather than whether open to force a window.3 The victim saw person right the arrested reason for the running the intruder apartment from the arrest”). Thus, although the officers be- Alexander, east. Officer who had ar- they possessed only lieved a reasonable minutes, rived at the scene within put five suspicion that Warren involved tracking dog his on the intruder’s scent. attempted burglary, a court nevertheless dog The led car, the officers to Warren’s may сonclude proba- that there was in fact parked four and one-half blocks east of the probable cause, ble cause. If there was scene the attempted burglary. po- the officers’ adjudged conduct must be ac- lice had received only the call eleven min- cordingly. utes It earlier. was 4:30 a.m. a resi-' neighborhood, dential one other B. general in the area. Warren is a We thus determine must whether the male, slender white who was nineteen objectively available years old wearing light-colored short- gave rise to cause to arrest War- sleeved shirt. As approached the officers ren for attempted burglary. Probable car, his away. drive cause exists at the momеnt the arrest *5 We believe that these facts and circum- made, was “the facts and circumstances stances would prudent person warrant a in within knowledge and of [the officers’] believing that Warren was the intruder. reasonably which trustworthy in- formation were sufficient to pru- a In Skinner, warrant United States v. 412 F.2d 98 dent believing man in petitioner (8th Cir.), denied, 967, cert. 396 ‍‌​‌‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​‌​‌​​‌​‌‌​​​‌​​‌‌‌​​​‌‍U.S. 90 had committed or committing was 448, an of- (1969), S.Ct. 24 L.Ed.2d 433 Ohio, 89, 91, fense.” Beck v. 379 U.S. 85 looking were for a bank robber described 223, 225, (1964) S.Ct. 13 L.Ed.2d 142 (citing male, as old, a white years slender in Brinegar States, v. United 338 U.S. build, less than five feet six inches in 175-76, 1302, 1310-11, 93 L.Ed. height, having turning brown hair gray, in (1949)). 1879 “The determination of wheth- shave, need of a and hatless. See id. at er cause exists must not rest on 101. A of the court found facts; isolated depends rather it suspect to arrest a fitting the de cumulative effect of the facts in the totali- scription, p.m., found at 1:15 one hour after ty of the circumstances.” States v. United robbery, sitting at a lunch counter in a Archer, (8th Cir.1988) hotel the same in geographic area where (citing Bubis, United States v. reported was robber to have fled. See (8th Cir.1984)). id. at 100-02. In some respects the de following The uncontroverted scription specific Skinner more knowledge. within the officers’ A man re- Here, than this case. there was no 3. Nebraska provide as follows: relevant Neb.Rev.Stat. § tion of commit a value. felony willfully, erected enters (1) A person A burglary: [******] portions or any thereon with intent maliciously, with intent to steal law crime real estate or commits 28-507(1) (Reissue 1985). provides shall be of the criminal if he: burglary and guilty forcibly any following of an property to commit attempt if such improvements breaks and attempt person statute defini- any any to §Id. window burglary. lieve strongly corroborative criminal intent. mission stantial to under the circumstances (3) Conduct shall not be considered a sub- (b) be, conduct intended to 28-201. The officers could Intentionally engages in conduct constitutes a and tries to force [******] step of the one who climbs under this section unless it is crime. substantial culminate in his it as open he believes a second step reasonably defendant’s in a course which, story them com- be- time, color, space crime a short height, hair area of within intruder’s of the mention despite growth, presence description or or fact that contained no of beard amount hand, other a hat. On the mention of facial hair and arrestee had absence precise here in that it beard), more description was thick mustache and small cert. de style of the intrud- 1067, 107 and nied, contained color S.Ct. 93 L.Ed. importantly, er’s shirt. More Slipka, 2d 1005 United States v. crime, at a after found much sooner (8th Cir.1984) 1064, 1065-66 (prob people fewer would be far time when suspect able cause where matched detailed about, opposed a in a residential area clothing suspect description and fled establishment, and had locat- been business officer); eye contact with Hollmаn v. Run dog. tracking by ed use of a dle, (3d Cir.1972) F.2d n. 1 & (probable suspect whose learned, at 4:00 Klingler, race, height, style, hair color and and cloth a.m., wearing man sun- robbery a a ing description fit color and was found one needing green jacket, and glasses, a night crime after the near scene with a The robber 409 F.2d at 301. See shave. fitting closely description); man occupants of second one of two was believed Pontiac, Pennsylvania, or 1956 white and brown Dessus having Cir.1971) plates (3d (probable having Minnesota license & n. 9 cause where through race, helmets visible description two construction defendant matched as to at An color, See id. 301-02. height, clothing the rear window. and was found later, private park- parked in a hour a car away five blocks within minutes ing began move as an officer drove lot crime, racially-mixed at 4:30 a.m. in a car, stopped the which was by. The officer neighborhood, people very few afoot salmon or coral Pontiac a 1957 white and vicinity), plates, Dakota license with South visible construction helmets 302. The through the rear window. C. to arrest found *6 conclude that Because we wearing an olive passenger, who was attempt cause existed to arrest Warren for days’ growth waistcoat and two burglary, assertion that his ed Warren’s Sunglasses also the car’s were beard. rights his detention violated constitutional Again, at 303-04. dashboard. id. See rejected. The “Fourth Amend more must be who аrrested Warren had requires judicial determination of did the officer in ment them than before prerequisite They had a more detailed de- cause as a to extend Klingler. suspect and found scription liberty following arrest.” ed restraint of 114, 103, after the crime. Warren much sooner Pugh, v. 420 U.S. Gerstein general vicinity in the They found Warren 854, 863, A 43 L.Ed.2d S.Ct. fled, and a track- intruder arrest, however, provides valid warrantless In ing dog had them to Warren. Klin- led legal justification period “for a brief general descrip- gler, the officer did have a steps detention to take the administrative car, suspect’s car although tion of the In States incident to arrest.” Id. United respect with description varied from the Cir.), (8th 574 F.2d 951 cert. de Boyer, plates and cоlor. These cases license 457, nied, 58 L.Ed.2d S.Ct. 439 U.S. demonstrate that under the facts within (1978), po at the the arrestee arrived knowledge, objectively, the officers’ viewed p.m., subjected was lice at 3:30 station probable cause existed to arrest Warren. procedures until administrative various questioned by agents FBI until p.m., 4:30 finding support also Other cases magistrate p.m., 5:45 and taken before See, probable cause under these facts. morning. id. at 952-53. Valez, late the next See e.g., United States unnecessary this was not (2d Cir.1986) We held that (probable where 25-27 5(a) Rules of the Federal race, clothing descrip- delay under Rule age, and matched at 955. Procedure. See id. tion, suspect and was found immediate ‍‌​‌‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​‌​‌​​‌​‌‌​​​‌​​‌‌‌​​​‌‍Criminal jail аpprox- Warren detained at the ination of the record confirms that it was imately twenty hours and Indeed, minutes. not. an by instruction offered During questioned that time he was about Warren conceded that he did not claim the background night, his activities (D.R. wrongful. 40). arrest to be This photographed, fingerprinted, processed on issue was not briefed when the case was warrant, failure-to-appear and allowed panel. before the I am satisfied acquire money post which to with bond. issue of unlawful properly detention was falls This detention well short of the ex- Further, submitted. relying officers in liberty prohibited by tended restraint on the Nebraska statute did not violate Gerstein. clearly established protected law qualified immunity.

We are left then with the officers’ failure to read Warren the Miranda warn HEANEY, Judge, Circuit dissenting, ings and Breen’s denial Warren’s re LAY, Judge, whom Chief quests reading to see counsel. The of Mi McMILLIAN, ARNOLD and Circuit warnings procedural safeguard randa is a Judges, join. right arising rather than a out of the fifth Miranda, amendment itself. See I respectfully majority dissent. The Thus, 86 S.Ct. at 1624. the remedy holds that Myers Police Officer had proba- for a Miranda violation is the exclusion ble cause as a matter of law to arrest any compelled from evidence of self-incrim attempted burglary. It reach- ination, not a section 1983 action. See Ben es this though conclusion—even Officer Passic, (10th nett v. Myers conceded in district court she Cir.1976); Buchmann, Thornton v. did not havе cause to make such (7th Cir.1968); Hampton arrest, an though even the case was tried Gilmore, (E.D.Mo.), 60 F.R.D. aff'd, in district theory on the prob- that no (8th Cir.1973); 486 F.2d 1407 Hensley v. existed, able cause though and even cf. Cir.) Carey, (no issue of presented cause was not section 1983 claim for officer’s failure to to this appeal. light Court initial conduct a and Brathwaite-type Stovall of these and the fact that a reason- — line-up), -, able could find that did Warren’s exist, this Court is without the authori- right sixth amendment to counsel also was ty to hold there violated, right as that had yet to attach. Warren for burglary. subjected Warren never was adversary reasons, For these as well as those stated judicial proceedings criminal such as for in my original оpinion, I would reverse and *7 charges, mal arraignment, or indictment. remand. Kirby Illinois, 682, 689, See v. 92 probable existence of cause in sec 1877, 1882, S.Ct. tion 1983 actions question constitutes a of Because we conclude that the uncontro- jury, Court, fact for the not this to decide. verted facts demonstrate that Warren’s We, along circuits, with several other have rights violated, were not the judgment of recognized question that probable the of the district court is affirmed. cause in a section 1983 action belongs to rights the trier fact. of civil actions “[I]n GIBSON, JOHN R. Judge, Circuit nature, of genuine this where a of issue concurring in the affirmance. fact on the probable existence of cause for agree I judgment the should be af- presented, question arrest is the should agree firmed. While I Judge jury.” Lee, Woll- submitted the Giordano v. opinion, man’s I am 1227, (8th not convinced Cir.1970), that it is 434 F.2d 1230 necessary go we this far. The U.S. 91 403 29 opinion (1971), demonstrates that the issue of L.Ed.2d citing 709 Adickes v. S.H. whether the pretextual Co., traffic arrest Kress & 398 26 was not raised in the My trial Haas, court. exam- L.Ed.2d 142 Anderson v. 341

1443 proba- of the establishment the about v. Cir.1965); Marland (3d 497 F.2d proper upon a jury, for the cause is Cir.1963). ble This (10th F.2d Heyse, law); City v. the Reeves instruction about in Linn this Court reaffirmed rule was (5th Miss., Jackson, 608 F.2d Cir.1976), in (8th Garcia, F.2d of for arrest consti- Cir.1979) (probable cause stated: we which jury could have question as jury tutes or where dispute in facts are the Where to arrest had no cause that officers found inferences, subject differеnt they are intoxication). public for plaintiff is for the cause probable of question the not are however, Circuit, the facts in dealt with Deary, where The Third jury; majority one up by the susceptible taken precise are issue disputed or the one inference, is question the It case. wrote: in this reasonable the court. for whether required of law to decide are here [W]e Deary’s case could in summary judgment Id. at 861. on the issue granted been properly have proba determining whether of The task is, taking of all cause. That probable of of a matter exists as to arrest cause ble resolving allegations as true Deary’s than is different 1983 actions in section law favor, whether in her all inferences of a in the context determination a similar police the could jury find reasonable McKen arrest. a criminal of review direct reasonably be could not have (9th Cir. Lamb, zie City the Deary committed lieved that the Kennedy, writing 1984). Justice i.e., probable not have robbery, did Bank Circuit, stated: Ninth Patzig the her arrest. Like [v. cause situation, are called we In the latter case, (3d Cir.1978)] O’Neil, to draw fact and law and both to review circum faced with substantial too are we reason- is and to what line as the would sustain stantial evidence * * * contrast, in a By behavior. able alleged probable cause: finding of under- matters the factual action § resemblance appearance in similarity reasonablеness of judgment lying the Deary to of characteristics physical is a probable cause mean that generally surveil pictured in bank suspect * * *. jury for the question Deary’s well photographs, as lance omitted). (citations arresting flight of from appearance existed cause arrest. Thus, finding day her probable of if “only appropriate of law Nevertheless, as a matter evi- despite considerable offi- find that view, could which, no reasonable would lead in our dence cause, light not have did or did cers finding City also, Id.; Lester v. trial see say that arrest.” cannot Patzig, we Cir.1987) him, could Chicago, 830 record before on the judge, police of whether the issue (question summarily decide disorderly con- presence plaintiff extent that to arrest cause. To jury); depended properly submitted duct was or absence Fontaine, bank Co., Deary to the Transport Inc. resemblance B.C.R. or Cir.1984)(“[Wjhether taken at (1st photographs surveillance neces- question any robbery, case given cause exists time *8 jury one for facts particular a factual depends sarily the becomes invariably that the fact case, question Nor does a of that determination. and circumstances resem- fact.”); characteristics Deary’s physical the trier of resolved to be the robbed who of the woman Officers, that Police bled Three Deary v. Un-named those that Cir.1984) (ultimate change our conclusion (3d bank consideration. jury too, were plaintiff arrest probable cause fact of Deary concedes though decide); Moreover, even jury to robbery was for bank the officers when “jogging” she Brown, that was Bilbrey v. Bilbrey by activity her, that whether per- apprehended Cir.1984)(if reasonable 1462, flight perception gave the reasonable might different conclusions reach sons is also a matter must left thin, male, truder: a twenties, white in his judgment jury of the to take into wearing account light-colored a short-sleeved shirt. together with such considerations as the Yet, Leitner, Dean Chief of Police for the speed (run- “jogging” at which she was Lincoln, City of testified at trial that this ning), demeanor, her overall and the oth- descriptiоn was not sufficient in and of aspects appearance. er of her itself to take an custody individual into grant To judgment for the defendant because “that fit would hundreds of thou- police juncture, therefore, officers at this people.” (T. 164). sands of Although War- would be to the role usurp jury which a ren did not have the opportunity to develop play finding here, must in fact deter- this questioning trial, line of quite — it is mining the fact ultimate possible that the factual circumstances sur- cause or the lack of it. rounding the attempted break-in would Deary jury v. Three lead a Officers, Unnamed Police discount reliability the (footnotes omitted). 746 F.2d at 191 victim’s statements. The record also indi- cates that another sitting white male was light cases, of these it is clear that an in a car general near the area where the appellate court can find cause for police dog tracking (T. 244), yet an no arrest in a only section 1983 case in explanation given as to 1) why circumstances: Warren there are no factu- was detained for questioning disputes arrest; al while surrounding 2) the oth- (T. er man 326). was not. persons, when reasonable in the fair exer- judgment, cise of could not draw different Third, dog questionable track ofwas inferences from those facts. reliability. The majority makes much of This say Court cannot that there are no the fact police dog, hot on the disputed issues of fact this case because scent, intruder’s “led thе officers to War- cause issue was conceded at ren’s car.” The however, majority, places trial and Warren opportunity had no to more dog’s reliance on the ability to hold a develop any relating to this defense. track in a residential area than the officers on the scene. Jeffrey Alexander,

If Officer ignore we important this consideration the officer handling police dog, consider all the testified presently facts as de- that he veloped did not feel light in the he could most favorable to War- Warren ren, solely I based believe a jury track. He reasonable could find stated that exhaust, that no car gasoline, any cause existed to arrest number of оther chemicals and burglary. the scent of another human being dog’s interfere ability First, police involved War- (T. 446). track. Thus, with further factual ren’s arrest and detention testified at trial development, jury a reasonably could con- did not objective have sufficient clude dog lost the scent of the facts on which to base intruder. Because per- there was another finding. Myers only ‍‌​‌‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​‌​‌​​‌​‌‌​​​‌​​‌‌‌​​​‌‍testified she area, son in the general same could suspicion” “reasonable that Warren had also reasonably conclude that dog track attempted burglary that morning. Detec- was inconclusive as to Warren’s culpability. tive Breen similarly that, conceded at trial even after detaining questioning War- Finally, the majority points to the fact ren, police had no cause to that Warren attempted to leave the area police arrest him. If partici- when he police saw a officer. Warren ex- pating in the arrest could reach a conclu- plained at trial that he started to turn his sion different from of the majority car around because there were a lot of Court, this it demonstrates the need to police cars at the corner of 20th and C question submit the jury. Streets, and he wanted to avoid “the

Second, description (T. 15). of the suspect mess.” As stated in the Deary *9 general case, too to objec- constitute reliable activity gave whether this the reason- tive evidence. Warren matched the perception flight vic- able of is a matter which general tim’s description alleged of the in- must be left to the judgment jury. on either rest its decision does not whole, majority are not a as taken These theories, repeat my I not will legal of these A jury inference. only one susceptible of except to panel opinion, in the discussion that conclusion draw the reasonably could it cor- to that I continue believe say that gen- was too of the intruder description the in this the Circuit. rectly states law unreliable, and the too eral, track dog the ambiguous to too the area attempt to leave however, must, comment on Neb.Stat. I of objective evidence interpre- constitute appellees’ 29-427 and the Rev. § cause.1 of it. tation majority opinion, the B of its perti- provides In section in 29-427 Neb.Rev.Stat. § whether states, must determine thus “We part: nent objective- arrest; the facts available officer; de- grounds for Peace to arrest to ly gave accused; rise grounds. Any of tention Assum- burglary.” attempted for making having grounds peace officer objective deciding, this that ing, without into cus- may the accused take an clear it remains appropriate, so, is detain or, already having standard done tody sit as fact- this Court fails to is not for the that it accused him further clearly does.2 refuses finder, majority satisfactorily, or identify as the himself citation, officer or when the sign the cаnnot nor we fact that light of the In that grounds to believe reasonable has cause existed say that should * * * necessary or- (3) is such action re- law, should this Court of as a matter investigative legitimate carry out der to by the raised the issue to consider fuse * * *. functions on in its brief time for the first appellees Nev.Rev.Stat. § majority feels If the rehearing en banc.3 is- that, had no they the if argue reach even compelled Appellees the is remand for at- should arrest Warren sue, most it do cause to the 29-427(3) gave directions burglary, court with section tempted district matter to the parties based trial, authority time both make an arrest at which them the for a new War- present evi- and to detain opportunity the traffic warrant have an on would sep- the regard to court with questioning The then issue. district ren for on the dence Not burglary. attempted the issue to arate crime the submit should contrary to interpretation the an only it found such unless instructions appropriate statute, it but the language of jury ques- plain a to create insufficient evidence unconstitutional. the statute also renders tion. statute, police officer this As read to reverse I Court appellees asked this The if the legally arrested anyone may pretextu- detain issue of panel decision necessary to it reasonably believes officer immunity. As qualified al arrest and Wulff, Singleton v. cases.” of individual support by majority are as cited The cases 1. L.Ed. in which courts inapposite, are cases as justified (federal (1976) appellate court 2d arrests. None directly review criminal had to proper resolu resolving where an issue determinations involved factual the cases doubt, injustice any or where an beyond 1983 suits. tion is appellate in section an result). Singleton, Su might otherwise however, Court, this preme Court chastised majority con- opinion, the C of the In section when one the merits addressing issue on an existed to warrant cludes develop or opportunity to no party burglary. Warren’s arrest level. trial position the issue on its defend say probable cause exists majority does rule, held, general a as only Court has susceptiblе to one This facts are because the on arguments or theories Thus, not consider can we will its conclusion reasonable inference. proceedings advanced appeal that were not categorized fact. as statement be below, can be resolved unless the issue law, has been record pertinent matter United States Supreme Court of the 3. The party had opposing developed, fully may questions of what matter ”[t]he stated raised. specific issue would notice the first time up resolved for be taken Newman, Wright discretion primarily to the appeal left is one Cir.1984). appeals, exercised on to be courts *10 investigate person’s further that role precisе On the by shown this record, the crime which he we think arrested. 5(a) It effect Rule is for to convert at least as of 4:00 grant police power does not P.M. on the to make a tenor of the statute warrants language make an legal arrest crime when questioning arrest there with provision for that to detain that person is no regard (3) crime. Neither the nor the overall such a separate cause to sweep- for they were convicted. tinued detention at the police station into cause in respect of the crime for which an unlawful afternoon of ¤ [*] appellants’ arrest, arrest without [*] [*] [*] their con- probable [*] An arrest made on ing interpretation. cause can bring a man lawfully into the hands of Furthermore, appellees' interpreta pоlice, but not, that detention does ab- tion would render Neb.Rev.Stat. § compliance sent 5(a), with Rule continue permitted unconstitutional. Police are not to be purposes, lawful for all including to hold custody beyond someone in the time the investigation possible of his connec- necessary process him respect with tion with other crimes. the crime of arrest for the sole purpose of (footnotes F.2d at 577-78 omitted); see trying person to connect that to another Poole, United States v. crime. To do so is an unlawful seizure. (D.C.Cir.1974) (Leventhal, J., concurring) States, See Adams United 399 F.2d 574 (unnecessary delay after is arrest evidence (D.C.Cir.1968), cert. denied sub nom. of involuntariness), 422 U.S. States, Roots v. United 89 1048, 45 L.Ed.2d 701 Lumb, Commonwealth v. 288 Pa.Super. Adams, individuals robbery, arrested for a 430 A.2d brought Robbery Squad to the offices at The words of Justice, former Chief then Police Headquarters p.m. 2:00 and Judge Burger, in his concurring opinion are booked p.m., at 4:00 put were then in line instructive: ups for other crimes as to which there was my mind, To the importance of the no cause to arrest or to detain investigation of crimes other than that them. The court excluded the results of for original which arrest was made is the lineups the incident of an unlawful not that may there something resem- arrest custody for interrogation. The bling “arrest,” a new but period explained: of “unnecessary delay” forbidden

cause, trying to only, other crimes is to connect them with effect without ment made on the arrested. To continue their custody matters. Rule to detain them under arrest for other November 5 at the North Carolina Ave- nue store. arrest and Here, the lawful [*] committed an without hold in and, it is an presentment essentially [*] detention rested if not There was no charge unnecessary custody 5(a) provides illegal for # supported by illegal; basis for the belief ‍‌​‌‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​‌​‌​​‌​‌‌​​​‌​​‌‌‌​​​‌‍the same as a new detention. # delay shall be its investigation solely # purpose robbery on appellants’ operative present- [*] they Adams v. United nal). (Burger, I sary.” that the “delay” has become “unneces- trate is for the purpose of investigation of other cially when it is culpation of investigation into his connection with the process an accused crime printing and even to make same limited preliminary ably relate to time to administratively Fed.R.Crim.P. reached. believe that time delay for J., necessary crimes, concurring) (emphasis in origi- which he Necessary the one arrested. other presentment holding States, 5(a) directed then there is no doubt steps process delay can reason- 399 F.2d at 579 booking, finger- and sometimes arrested, him for the possible then However, beyond magis- espe- been ex- *11 in order to arrested he was for which crime in other person’s role investigate that un- seizure unlawful an constitutes

crimes a stat- Where Amendment. Fourth

der constructions, un- of two susceptible is ute valid, while statute one of which der or of it is unconstitutional the other undеr Supreme Nebraska validity, the doubtful construction adopt the will Court Evans, validity. State gives the statute 788, 793 433, 338 N.W.2d

215 Neb. Neb.Rev.Stat version appellees’

As Amendment, I Fourth violates 29-427 § Supreme Court would the Nebraska believe limits inves- interpretation which adopt the po- where to situations detention

tigatory role investigate the detainee’s

lice need he arrested. for which

in the crime time neces- beyond the

Thus, any detention respect to the Warren with

sary process of investi- purpose for the warrant

traffic burglary justi- gating the Neb.Rev.Stat. under §

fiable seizure based an unlawful constitute

would of the sort suspicion reasonable solely on York, Dunaway v. New

prohibited in L.Ed.2d 824 Royer, and Florida (1983).4 L.Ed.2d 229 HENDERSON, Appellee,

Jerry Wayne LOCKHART, Arkansas Director

A.L. Correction, Department of

Appellant. 87-2427.

No. Appeals, States Court

United

Eighth Circuit. May

Submitted 10, 1989. Jan.

Decided have been should payment of bond. processing a procedure for 4. The normal beyond the was held that if instructed entails appear traffic violation for a who ‍‌​‌‌​​‌‌​​​​‌‌​​​‌​‌‌‌​‌‌​‌​‌​​‌​‌‌​​​‌​​‌‌‌​​​‌‍fails to him, deten- him, necessary process officer, then booking time taking correction him ato one. an tion was unlawful releasing promptly setting him bond