*1 640 past delinquencies principal.” Department of
Agriculture App. Ackerman, 796, 797, v. Ill. 3d 341 34 rehearing January (1975), denied N.E.2d Suretyship See, also, § Am. 2d Jur. conclude that Western is not for We therefore liable any arising grain nonpayment Meissner out of the February 1974, trial transactions court acted sustaining correctly summary Western’s motion against judgment Stock. genuine case,
Where, as in this are no there issues fact are material and defendants entitled to summary judgment judgment may law, as a matter granted. properly (Reissue § be Stat 25-1332 Neb. Rev. 1979).
Appellant assignments of error are Stock’s without judgment merit. The trial court is affirmed.
Affirmed. J., Clinton, concurs result. appellee, Nebraska, appellant.
Thomas M. Public Defend- Stanley Krieger appellant. er, and A. Douglas, Attorney General,
Paul L. and G. Roderic appellee. Anderson for Krivosha, C.J., Boslaugh,
Heard before McCown, JJ., Brodkey, White, Hastings, Colwell, Judge. Retired District Brodkey, J. appellant the defendant and here- charged Douglas County,
in, was in the District Court of possessing Nebraska, substance, a controlled to wit, cocaine, distribute, deliver, with the intent to dispense (Re- in violation of § Neb. Rev. Stat. 1979). July issue The case was tried before the court on 22, 1980, and the defendant was convicted of the lesser- possession included offense of of a controlled substance charged. subsequently Nowicki was sentenced to a probation years, period term of for a of 2 the first 60 days spent custody Douglas County in of the Department appealed of Corrections. He has now to this assignment court, and his sole of error is that overruling sup- District Court erred in his motion to press being the cocaine seized as the fruit of an un- lawful arrest. We affirm. appeal May
The record on 23,1980, discloses that on approximately p.m., at Officer Thomas of the Department Omaha Police was informed that one quantity arrested, William Yoder had been and a suspected pursuant cocaine had been seized to a search Caniglia. warrant issued to Officer Jack At the time driving arrest, was Yoder a vehicle owned distributing suspected Pittman, was who Hezekiah in Omaha. controlled substances Pittman, in- In an to effort locate which led them believe Pittman formation staying Omaha, Plaza in the address of 13164 Grover at quantity possibly possession had in his and that he cocaine.
A for the address was obtained search warrant Caniglia, upon served the lessee Barney Boyd. Boyd premises, L. informed the the one spent previous night police apartment Pittman had only Boyd with another individual known Boyd that Pittman had re- as “Bill.” told apartment p.m. afternoon, until mained at telephone anony- from call Pittman received informing him “Bill” ar- mous caller had been description given Boyd physical rested. The person description known as “Bill” similar to driving “Bill” who of William Yoder arrested Boyd car. stated that Pittman Pittman's had requested area 24th a ride to the and Streets *3 carrying Omaha, that Pittman was a and brown card- Boyd board left the vehicle. box he Upon Station, their return to Central Police Gorgen Caniglia their Officers and advised supervisor, Olson, Lt. that further Robert as to the whereabouts of Pittman had from formation provided in- informants who had reliable two past. in the The first informant that stated drug Joseph with was involved activities H. Pittman Nowicki, with a who resided at Street Cauca- Sedan, that sian female named Denise and Nowicki distributing that cocaine from address. informant supplied also that Nowicki was his cocaine stated by a male as Hezekiah Pittman and that black known go it was Pittman would to the Nowicki place “hide out.” residence if he needed stated to the that he had informant second quantity possession of sus- Pittman in of a observed previous pected hours that in within the cocaine go to residence of all likelihood Pittman would addition, Nowicki to “hide out.” the second informant Dodge blue, stated that Pittman owned a two-door parked vicinity, automobile that was Pittman might suspected hide cocaine. upon above,
Based the information stated assigned prepare application were for an affidavit and apartment of a issuance search warrant for the persons Street, 2312]4 L and also for the of Hezekiah Joseph Pittman, Sedan, Denise and their Caniglia Gorgen automobiles. Officers assigned to commence surveillance the defendant’s apartment if determine Hezekiah Pittman was at appears It location. that the were directed position to remain until the search warrant was completed brought During to the residence. conducting surveillance, officers the surveillance ob- Dodge parked served blue 1967 two-door van in the Payless parking Shoe Store lot at 24th Land A Streets. check of the vehicle’s license indicated that the van was registered parked to Hezekiah Pittman. Also in the lot pickup Caniglia was a red truck which Officer was ad- belonged defendant, vised to the Nowicki. approximately p.m. evening, At 9:30 a Caucasian apartment male and female left the and entered the blue van. The automobile was driven to the front of the building, building at which time black male left the Caniglia time, and entered the vehicle. At this and Officers parties, were directed to follow the began pickup to follow red truck owned the de- following fendant. While the officers were they they were advised Lt. Olson over their radio that stop
should and detain the driver the truck if they thought spotted following he them the vehicle. The proceeded truck 3 blocks north on 24th Street where it *4 turned into a McDonald’s restaurant. Suspecting spotted them, the had driver the the question the vehicle pull driver it to the side of 24th At Street. this time the registration the license and driver’s
officers obtained him as the which identified driver of the Nowicki. conducting police was told that the The defendant investigation, and Nowicki returned After of his truck. Nowicki returned the driver’s seat to vehicle, Lt. Olson the officers were directed his party transported the to Central Police to have radio leaving his truck at the As the defendant was Station. Caniglia request bag, police, plastic Officer observed protruding enclosed, from with a white substance appears or It that there was tear the driver’s seat. Caniglia seat, that he slit in the could observe and Officer testified bag plastic from he was stand- where Caniglia plastic truck. Officer took outside the bag possession. into later identi- contents were subsequently cocaine, as and the defendant was fied possession of It a controlled substance. arrested appears detaining while the Nowicki arrest, to the to his returned police cruiser, surveillance area and obtained to his resi- was used to transfer defendant back L Street. The warrant for search dence at person residence, vehicle, and arrived defendant’s approximately minutes later. subse- quently person small defendant a found magazine paper containing piece a white sub- folded identified as cocaine. the defendant stance which later assigns appeal In his on as error brief failing the District Court erred sustain suppress the motion to cocaine seized defendant’s being the “fruit” of an arrest. Defendant’s unlawful primary probable is that did not have contention him as was no evidence there any regulations, violating the vehicle traffic other criminal that the defendant appear from the record that It would activities. defendant challenging investigative stop of his is subsequent person. vehicle, of his rather than the search authority By Rev. contained virtue
645 may stop 1979), police (Reissue § Stat. reasonably they public place any person sus- whom in a committing, pect committed, or who is about who has may person crime, demand a to commit explanation name, address, In the of his actions. and an p. Ebberson, 41, N.W.2d v. ante 305 case of State recent 904 for required (1981), the standards this court considered investigative stop making connection Supreme opinion Court in United of the U.S. recent Cortez,_U.S__, 690, S. Ct. 66 L. v. 101 Ed. 2d States (1981). 44-45, Ebberson, N.W.2d In we stated 305 621 at 907: Supreme
“The Court has addressed the stand- U.S. investigatory stop satisfy must met in an ards that be requirements fourth amendment United Cortez,_U.S__, 690, Ct. L. v. 101 S. 66 Ed. 2d States investigatory stop (1981). that an 621 The Court held by objective justified manifestation that must be person engaged is, been, has or is about to be activity. determining In cause is suffi- criminal what totality stop person, a cient to authorize — — picture the whole must be taken the circumstances into account. particularized
“Police officers must have a and ob- suspecting person stopped jective basis for activity. totality of cir- criminal cumstances The assessment objective
includes all of the
observations
suspicion
considerations, as well as the
drawn
experienced police
trained and
officer
inference
stopped is
that the individual
or has been or is
deduction
engaged
in criminal behavior.
Brown v.
about
47,
2637,
Texas,
S. Ct.
Affirmed. Krivosha, C.J., dissenting. regret respectfully
I I must dissent from the majority generally I in this case. While would concur principles majority, with of law out I set justify appli- believe the facts this case do not The record discloses that as cation officers followed the those rules. pulled it into a McDonald’s
parking lot nothing suspicious about the driver or his driver ordered food. There was
driving other had, it than was believed these individuals on other drug dealing occasions, been involved 2312% occupants Street. There was no evidence that the any illegal activity. at the moment waiting food, While for the defendant officers were advised thought Lt. Olson that if the officers spotted they the driver “had their tail” should stop being prepared him, as a search warrant for the residence at blocked the vehicle’s L Street. The officers then path it as it was leav- parking lot. The the McDonald’s officers advised the occupants conducting investigation and asked for the defendant’s driver’s license and registration. complied request. The defendant the registration The officers then ran a vehicle check on the party and were advised Lt. Olson to arrest transport him to Central Police Station. No reason *7 given. point the arrest was At that in time the officers committed, had no evidence that crime had being committed, or was about to be All committed. they knew was that the individuals or some of them had drug dealing and the home at been involved pursuant warrant, Street was to be searched to a search being which was then obtained. It was not until after pursuant had arrested the defendant to in- they sought Lt. structions Olson that to secure the plastic bag vehicle and for the first time observed the protruding from a slit the seat. Caniglia, arresting officers, one of the testi- defendant, to arrest
fied that he was ordered
take
headquarters,
tow his vehicle before
him to
any weapon
in fact
The arrest was
was found.
cocaine
or
accomplished
handcuffed before
the defendant
then
anything
truck.
found in the
present, we
is ever
to combat crime
the need
While
disregard
of the Constitu-
the clear mandates
not
must
tion.
proposition
if one
This case now stands
prior
in il-
known to deal
and is
criminal record
has a
legal
per-
may
activity,
and their
she
be arrested
he or
properties
without warrant
searched
or
sons
basis
clusion
provided
prior
a con-
with crime. Such
association
of their
sought
totally
protections
annihilates
the Con-
amendment
the fourth
citizens
Const,
I, §
art.
States and
of the United
stitution
There is
simply
to indicate
in this record
no evidence
anyone
being
associated
made
to the arrest
that
with law enforcement
drugs
that there were
believed
present
vehicle,
that at the time of the defend-
actually engaged
drug
in a
was then
arrest he
ant’s
defined as exist-
cause has been
Probable
transaction.
known to the officer
circumstances
if the facts and
believing
prudent
inman
and reasonable
warrant
has committed
the arrestee
case of an arrest
that in the
Henry
States,
98,
80
374
v. United
361 U.S.
the offense.
California,
v. Ker