State v. George
317 N.W.2d 76
Neb.
1982
Check Treatment

*1 judgment affirmed. correct, its were

Affirmed. J., result. concurs Clinton, appellee, Nebraska, State appellant. Joseph Jr., S. George, 317 N.W.2d 76 12, 1982. No. 44063. Filed March County Defender, Keefe, Public R. Lancaster Dennis appellant. and Richard L. Goos Attorney Douglas, General, and Bernard L. L. Paul appellee. Packett for McCown, Krivosha, C.J., Boslaugh,

Heard before Hastings, Brodkey, White, Clinton, JJ. White, J. George, appeals appellant, Joseph Jr., S. finding jury upon him verdict

a guilty based conviction person degree assault of a under of first sexual George age years. sentenced The trial court of 16 Complex to the Nebraska Penal and Correctional years for a term of not less years, nor more than 20 than said sentence to run consecutive to current being term served. *2 appellant assigns following (1)

The errors: The the failing appellant’s trial court in erred to find that the arrest was effectuated without cause viola- York, of tion New (2) (1980); Ed. 63 L. 2d 639 The trial court failing suppress

erred in by arrest; to certain statements made shortly the to a after his

(3) failing grant The court to a erred motion prosecutor for mistrial based comments made the during opening (4) statements; and The court erred concluding supra, York, v. New had application appellant’s no case. August 6, 1979,

The evidence established that on 10-year-old boy, way victim, the friend’s a while on his to a approximately away, home blocks was approached by appellant, man, later identified as the money who if asked him he to wanted make some packing glasses. the offered victim go apartment, to to a vacant Oncein the $20 According the victim was with threatened a knife. testimony, knifepoint, forced, to the victim’s to he was engage copulation appellant. in oral with the engaging The victim further testified that after copulation, in oral the forced him to lie spread legs, face down on a bed and his at which time appellant attempted the anal intercourse on the victim. reported The victim the assault his mother who immediately police. reported called the The victim police, gave composite description the assault to the of the suspect, apartment showed the occurred, in which assault and was taken to Hospital Lincoln General for examination.

Approximately incident, 1 week after the Officer Department John Winkler the Lincoln Police received information from a confidential informant in the sexual assault. was involved

that The told “an individual informant Winkler confidential gave place him infor- came his business having acquaintance some trouble mation about regards sexually assaulting an individual. She and the individual described the individual gave particular those me stated that the information parties was and he come business happened and this well aware what me.” The officer further information he called personally while he did not know testified that informant, appellant’s knew the fiancee informant person she who told the informant and appellant responsible sexual assault. The knew victim his mother. informant also up information, With Officer Winkler set mug lineup consisting photographic mug positively victim shot and other shots. The three George person as who had him. assaulted identified obtaining warrant, Winkler went *3 Without Officer by occupied apartment his to fiancee to effectuate an arrest. The officer testified specific apartment intent that he went to with arresting appellant. further The officer George he, the door and testified that answered George officer, would have to come he informed clearly police headquarters. The does not record apart- Winkler entered the establish whether Officer However, at counsel asked: “I mean ment. defense you he had to least walked and said come when station, was not free to leave?” Officer Winkler he “Right, replied: he Officer Winkler couldn’t leave.” implication he never denied defense counsel’s entered the immediately conveyed

George head- shortly interrogation quarters, placed room, an warnings. George was read his Miranda thereafter then orally gave statement, con- Officer Winkler firming of the assault as related the events immediately victim after the assault. the statement George that he stated did remember if he had engage copulation forced the victim to him. oral response question attempted to a whether he George victim, anal intercourse with the not stated he did trial, if remember he did this or not. At testified on his own behalf and denied that there was any penetration.

Appellant contends that arrest was made without probable cause and therefore statements obtained police headquarters him are inadmissible poisonous as the “fruit of the tree” and should have Wong been excluded from evidence. See Sun United States, 371 U.S. Ct. 83 S. 9 L. Ed. 2d 441 (1963). Appellant further contends that his warrant- illegal less arrest was York, under New Ct. 100 S. apartment it since showing took in his and there was no exigent or circumstances a consensual arrest. subsequent was decided to the trial and appellant’s sentencing conviction but

ruling Throughout on his motion for new trial. proceedings, defense counsel asserted the inadmis- sibility of the statements. Defense counsel asserted they that the statements were inadmissible since were appellant’s obtained in violation Miranda rights ground and further on the that the arrest was probable made without cause. The testified requested that he had counsel and had been refused access to counsel.

We find no merit contention that his arrest was made without cause. Nebraska may provide arrest statutes warrant without a appears felony it when that a has been com- *4 grounds and there mitted are reasonable to believe person the arrested has committed the offense. (Reissue 1979). § Neb. Rev. Stat. 29-404.02 At the arresting arrest, of time the the officer had sufficient linking appellant the sexual assault. the to information appellant description of the The officer had a the took which revealed description victim, the where assault place, a medical examination information from

some evidence trauma victim’s presence consistent with of secretions anus and the type victim’s underwear. the blood the this, the officer had reliable information addition to appellant that the from a confidential informant The officer had a committed the sexual assault. photograph which was consistent the descriptions given the the victim and with informant. the Finally, positively the victim identified lineup. photographic on this Based information, Officer Winkler had cause felony committed that a had been believe felony. appellant had committed photographic array Appellant’s contention that the pictures four con- was tainted because three tained men with long hair and beards while only appellant’s is he hair short and has a mustache array appears tainted; be well taken. The itself totality looking circumstances, however, at the good gave at victim had look his assailant and prejudicial description. lineup was not accurate independent from which since the victim had an he basis positive identification. The more serious made a question respect arises, however, actual Officer arrest of the Winkler the evidence the circumstances were no that he had reason to believe that testified gave town no about to leave justify court to that would find

exigent. Officer Winkler question, “Why you permitted not to answer the did go get not an arrest warrant?” Smith, 505, 308 209 Neb. N.W.2d 820 State open question we of whether left retroactively. expressly applied While be should Payton, has, applying in several cases before *5 impliedly Payton ruling. it, followed In v. State (1981), Schlothauer, 663, 207 Neb. 300 N.W.2d 194 Payton a verdict was rendered to the decision Payton but the case was before this court when was finally court decided. This remanded to determine exigent or whether there were circumstances justifying entry into the home and whether subsequent arrest was consensual. Resler, State 209 Neb. 306 N.W.2d 918

(1981), Payton standing this court cited as for the proposition that a officer who has not obtained either an arrest or search warrant cannot make a entry suspect’s nonconsensual and warrantless into a exigent home in the absence of circumstances. The adopt “emergency on to went doctrine” exigent authorizing an as circumstance a warrantless suspect’s or nonconsensual into a home. Tipton,

In State v. 206 Neb. 294 N.W.2d 869 (1980), distinguished Payton this court and concluded public place arrest made in a does not violate Payton Smith, State Neb. 298 N.W.2d 162

(1980), that, the defendant maintained because his illegal rights arrest was and in of his violation under Constitution, the fourth amendment to the U.S. evidence thereafter obtained as a result of a search premises pursuant of his made to an otherwise valid suppressed. search warrant should have been In that distinguished Payton case this court the situation in was, fact, and held that the search warrant in process being procured, it had a basis independent any illegal arrests, therefore it is not barred under the doctrine.

Finally, Billups, in the more recent case of State v. Billups 737, 311 209 Neb. N.W.2d 512 was robbing Imperial accused of Oil Co. on March April 15, was 1980. 1980. decision released Billups’ approached case, In that sister-in-law up home. officers outside her She went back following house, knocked, went in Billups police placed and, arrest while under her. The leaving, they jacket, believed be the one noticed hallway just robbery, hanging in a inside used the the standards argued Billups his arrest violated front door. by Payton since it established He further without a warrant. nonconsensual argued illegal, all his arrest was evidence that since illegal arrest was inad- result of the obtained as a poisonous This tree.” *6 “fruits of the as the missible “Appellant’s position is correct unless court stated: properly the that the the trial found (Emphasis supplied.) Billups home was consensual.” 740, 311 N.W.2d at 514. Id. at have, come us in which have before We all cases appeal pending at the time the and were direct uniformly applied Payton Payton. released, decision Walker, 618, 381 U.S. In Linkletter v. Supreme (1965), 1731, the Court exclusionary deciding principle whether the

was enunciated Mapp Ohio, S. Ct. in 81 (1961), applied L. 1081 state court 6 Ed. 2d of final rendition which had become before convictions defining opinion. “final,” in n. the Court said its “By judgment the of final we mean where 5 at 622: availability appeal rendered, of the conviction was petition exhausted, for certiorari and the time Mapp elapsed our in v. Ohio.” before decision had In appropriate this, rule of we believe that the view involving any a constitutional issue is requiring suppression limit case those not evidence to cases

of finally interpret the rule We therefore decided. and the uniform decision to be retroactive applies it to all cases cases to the extent our April 15, 1980. final Payton applies to that we have decided

Now matter we must address collateral this case the arrest took whether

793 argues arresting The State that the appellant’s apartment. never entered the The record supports neither nor conflicts the State’s con- regard. tentions in this record does indicate that apartment was, fact, in his when the answering door, officer came.

was informed of his arrest. The officer testified that was not free leave time.

We are inclined to the view of the Circuit 9th (9th Johnson, United States F.2d 1980). case, Cir. The court “In Johnson stated: suspect we are confronted with the situation was arrested as he stood inside his home where weapons. officers stood outside home with drawn circumstances, In these it is the location arrested person, agents, arresting and not the that determines whether an arrest occurs within a home.”

We determine that arrest the result of a warrantless intrusion into the home any exigent without consent and absent circumstances. illegally thereby sup- Evidence pressed. obtained must be recently occasion, We Smith, in State v. analysis

Neb. 308 N.W.2d 820 to make an of the circumstances when evidence is the “fruit of *7 poisonous suppressible. tree” and thus “The stand- admissibility ards to determine of statements made illegal after an Illinois, arrest as set [v. forth Brown (1975)] 95 S. Ct. 45 L. Ed. 2d 416 recently Rawlings Kentucky, were reaffirmed (1980). (1) The five factors are: The administration of the warnings prior Miranda to the defendant to (2) temporal proximity statement; The of the arrest (3) intervening confession; and the The circumstances challenged between the initial detention and the (4) purpose flagrancy statements; The and (5) misconduct; official The voluntariness of the statement must be established. given does the defendant “The first statement admissibility as set forth not test for meet the sup- Rawlings, have been and should

Brown and warnings given Although pressed. were the Miranda rights and the to the confession the defendant temporal proximity waived, arrest and the in Brown. The much like the situation confession is first statement arrest intervening separated unlawful by approximately 1 and there was no hour significance.” 510-11, Id. at

event of hand, 823. In the facts 308 N.W.2d at was arrest, around appellant immediately police station after his taken interval, estimated at or

and after a short interrogation began hour, and the % were the admissions which received made not been The should have evidence. admissions so and to do was error. admitted into evidence problem determining with the This leaves us of the confession harmless whether introduction Smith, the in this case did error. Unlike did, however, than one confession. He not make more which in-court statements corroborated make certain exception in his The one he had said confession. what he could not remember in his confession was if but penetrated anus, the victim’s mouth or he had open-court stated he in his statement he definitely penetrated mouth either the or anus not here determine whether of the victim. We cannot together testimony, appellant’s taken with all in-court evidence, would be sufficient convict the the other degree if his of first sexual assault statements jury. question suppressed. is for a That are say that the admission We cannot error. is harmless statements to argued by assigned errors Other likely or, retrial, are merit are either without therefore, and, we do not discuss them. to reoccur judgment cause remanded reversed for new trial.

795 Reversed a remanded new trial. Boslaugh, J., dissenting part. in Peltier, 531, In United States v. 95 S. Ct. (1975), Supreme 2313, 45 L. Ed. 2d 374 the U.S. Court held that States, the decision in Almeida-Sanchez United U.S.

413 93 S. Ct. (1973), applicable was not a search made though decision, to the date of that even the defendant’s appeal pending at the time of that decision. purpose

The Court noted that since the of the ex- clusionary police conduct, rule was to deter unlawful suppressed only evidence should be if it can be said the might charged properly law. enforcement officer be knowledge the search was unconstitutional. (1981). See, also, Annot., 65 L. Ed. 2d 1219 apply A similar case, rule should which was decided after the arrest in this case place. took J.,

Clinton, dissenting. majority opinion I dissent from the for three reasons. reading First, York, a careful v. New L. Ed. 2d 639 principles only apply reveals that its to arrests made in the home warrant after without nonconsensual entry. agree opinion Second, I do (9th 1980), Johnson, United States v. 626 F.2d 753 Cir. majority opinion, supports cited the broad proposition adopt court seems in its second syllabus, namely, convey that the use the voice to message of arrest constitutes either seizure or an entry barred the fourth If amendment. the cited proposition, case does disagree fact stand for that then I supports Third, with it. the evidence trial determination it court’s is not the function of this court to find the facts anew. plain inference from the evidence this case the home was consensual. The *9 business, appeared door, announced at the permitted does not enter. The defendant entry or a forced nonconsensual that there was contend was. In there

and there is no evidence prohibits fourth amendment held that court making police warrantless and noncon- making purpose of home for the sensual into the by felony supported arrest, i.e., one a routine exigent circumstances. The evidence absent cause but in way forced their shows that that case reading by A the use crowbars. the residence entire opinion without doubt indicates only entries. with nonconsensual court was concerned by Judge opinion upon quotes an Leventhal (D.C. It relies States, Cir. 435 F.2d 385 in Dorman United greater placed 1970): ... on officials who burden is “‘[a] dwelling Id. at 587. without consent.’” or enter home Supreme “[W]e no at have found Court said 598: Later authority supporting entries into a home forcible direct . .” routine arrest . . to make a supra, Johnson, In United States appeared at the accused’s home and met him the weapons. said, The “In these with drawn door circumstances,” location, it is the etc. That is force or show There is here no evidence of either case. of force. opinion majority before us cites no case

authority proposition that the fourth amendment for the by may intrusion, is, an an- be violated a vocal purpose far officer of his arrest. As nouncement absolutely determine, this is an I able to as have been unsup- unique application the fourth amendment by authority. ported

Lastly, appellate pointed out, I this is an have as actions, It function in law which court. is not our prosecution is, to the facts anew decide a criminal clearly supports court’s the trial the evidence where the conviction and I would affirm determinations. sentence.