STATE OF NEBRASKA, APPELLEE, V. JERRY G. OHLER, APPELLANT.
No. 43375
Supreme Court of Nebraska
May 8, 1981
305 N.W.2d 637
Paul L. Douglas, Attorney General, and Linda A. Akers for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, MCCOWN, BRODKEY, WHITE, and HASTINGS, JJ.
PER CURIAM.
The defendant, Jerry G. Ohler, was convicted by a York County District Court jury of a violation of
The defendant was arrested on May 3, 1979, in a common areaway or alley located behind several business establishments in York, Nebraska. Ohler had entered several of the businesses through the rear door service entry and made contact with several proprietors and employees. One proprietor testified that Ohler had inquired whether the U.P.S. man had been there; another proprietor testified that Ohler told her that he had just come by to say “hello” and, after some conversation, he said he was looking for a lady with a little child. After the conversation about the U.P.S. man, the proprietor of the drugstore became suspicious and called the police department.
Police Sergeant Ronald Dickerson received the call which described the defendant, and he went to the area where he saw a man matching that description walking toward him in the alley, carrying a cardboard box under his arm. Sergeant Dickerson identified himself and then asked the man for identification. The man put his box down onto the ground and presented the officer with a card identifying himself as Jerry G. Ohler. Shortly thereafter, the chief of police, Franklin D. Valentine, arrived on the scene and, after some conversation, told Ohler that some incidents had occurred 1 to 3 months earlier in which a man had been going around asking the same questions which Ohler had asked on this date and that Ohler matched the description of that
Sergeant Dickerson then asked Ohler what was in the box that he had placed on the ground. Dickerson testified at the preliminary hearing as follows: “Q. And what if anything did he tell you. A. He didn‘t tell me anything and I opened the -- Q. He didn‘t make any response at all when you asked him what was in the box. A. Well, he didn‘t tell me what was in the box he just said it was something, that he had found the box up the alley. Q. And what was -- what happened next. A. Well, I asked him if he had any objections if we looked in the box to see what he had. He was coming out from a store. Q. What was his response? A. Well, as far as I remember he said that he didn‘t make any objections.” (Emphasis supplied.)
The sergeant then opened the box and inside saw two pairs of men‘s boots which appeared to be new. Ohler was asked if he had a sales slip for the merchandise. The reply was in the negative, and Ohler further explained that he had found the boots near a trash receptacle down the alley. He then took the officers down to where he purportedly found the boots. At that time the officers placed the defendant under arrest for possession of stolen property or theft by unlawful taking. Ohler was patted down for weapons and when he opened his jacket the officer found a spatula with a wooden handle tucked into the waist of his pants. It was bent and had some zigzag marks on it.
Following the arrest, defendant was taken to police headquarters and his automobile was impounded. A search warrant was secured for a search of the car, based on an affidavit of Police Officer Michael Rathje. The affidavit set forth information regarding incidents which occurred in January of 1979 involving a burglary of the Sugar Plum Tree store of a sack of cash and checks. Another incident involved a burglary in an
The search uncovered such items as bent and scratched knives, skeleton keys, penlight flashlights, a screwdriver, a sledge hammer, and a steel punch. At trial, experts testified that these items could be and frequently were used as burglary tools.
After the preliminary hearing and prior to trial, Ohler‘s attorney filed a motion in limine and a motion to suppress all evidence held by the State, alleging that the evidence was obtained by an illegal search and seizure of defendant‘s person and vehicle. The motion recited that the search was made before defendant was placed under arrest; that the search was made without the consent of defendant; that no probable cause existed for the search, seizure, and arrest; and that defendant has standing to complain that the search was illegal. By stipulation of the parties the search warrant and affidavit and the transcript of the preliminary hearing were admitted as evidence on the motions. No further evidence was adduced at the hearing. We further note that the defendant not only did not testify at the preliminary hearing nor at trial, but neither was any other evidence presented by the defense to contradict the State‘s witnesses.
The trial court overruled the motion to suppress and the defendant has assigned that action as error. We note initially that there were two separate searches and seizures to which the motion to suppress applies. The first search was of the defendant‘s box and person in
We must determine whether the disputed search and seizure infringed an interest of the defendant which the fourth amendment was designed to protect. Rakas v. Illinois, 439 U.S. 128 (1978). “The interest protected was defined by Katz v. United States, 389 U.S. 347 (1967), where the Supreme Court held that the capacity to claim the protection of the fourth amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.” State v. Vicars, 207 Neb. 325, 329, 299 N.W.2d 421, 425 (1980). The question we must answer is whether governmental officials violated any legitimate expectation of privacy held by the defendant. Rawlings v. Kentucky, 448 U.S. 98 (1980).
The evidence reveals that the defendant consented to the search of the cardboard box. The defendant cannot assert any expectation of privacy in an area in which he gave governmental officials the permission to inspect. “Whether or not consent to search was freely and intelligently given is a question of fact to be determined from the totality of all the circumstances surrounding it.” State v. French, 203 Neb. 435, 439, 279 N.W.2d 116, 119 (1979). The State presented evidence that the defendant consented to the search of the box. The defendant did not contradict that testimony, either directly or indirectly, nor was it challenged as being involuntary or coerced. We believe that the State has met its burden.
The lawful owner of the boots identified them as having come from her store, and she further testified that she had not given permission to the defendant to have them in his possession. The tools taken from defendant‘s car were described by expert testimony to be burglary tools. This evidence was clearly sufficient to support the jury‘s verdict of guilty as to both crimes. This court will not interfere with a conviction based upon evidence unless it is so lacking in probative force that as a matter of law it can be said that it is insufficient to support a verdict of guilt beyond a reasonable doubt. State v. Booth, 202 Neb. 692, 276 N.W.2d 673 (1979).
The judgment and sentence of the District Court were correct and are affirmed.
AFFIRMED.
BRODKEY, J., concurring in result.
While I concur in the result reached by the majority of the court, I must strongly disagree with the grounds upon which the majority opinion is based, to wit, that the search by the police of the unsealed and partially opened cardboard box carried by the defendant and placed by him upon the ground prior to the search was a valid “consent search” pursuant to the voluntary and uncoerced consent and permission of the defendant. Of the various available grounds for affirming the conviction of the defendant in this case, the one selected by the majority of the court is, in my opinion, by far the weakest, and not sustained by the record. There are, however, several other valid grounds not mentioned or referred to in the majority opinion upon which de
The sole and only basis for the conclusion of the majority that the defendant gave his consent to a search of the box is the following testimony of Officer Dickerson given at the preliminary hearing in this matter, as follows: “Q. And what was -- what happened next. A. Well, I asked him if he had any objections if we looked in the box to see what he had. He was coming out from a store. Q. What was his response? A. Well, as far as I remember he said that he didn‘t make any objections.” (Emphasis supplied.) It should be noted, however, that when Officer Dickerson testified at the trial regarding the incident, he made no mention of the foregoing alleged consent to search, but only testified that he had asked the defendant what was in the box, but that the defendant did not tell him, and also that the box was partially opened and “we looked inside.” He was then asked: “Do you remember testifying back at the Preliminary Hearing, don‘t you, in this matter? A. Yes, sir. Q. And I believe that on approximately page fifty-three of the Preliminary Hearing testimony, I believe the question was asked, ‘What, if anything, did he tell you?’ This is after you had stopped him. Then you stated in response, ‘He didn‘t tell me anything and I opened the --’ Then you just stopped and the question came back. ‘He didn‘t make any response at all when you asked him what was in the box? Answer: Well, he didn‘t tell me what was in the box, he just said it was something.‘” Officer Dickerson also testified that he was in uniform at that time. Chief of Police Valentine of York, Nebraska, who was also present at the time of the questioning, testified at the trial with reference to the defendant Ohler as follows: “I asked him if that was his box and he stated it was, and at that time, there was another sergeant present, which was Sergeant Leach and he opened the box up and it had two pair of boots in it.” (Emphasis supplied.)
Even assuming, however, that it was Officer
“Consent to search is not to be lightly inferred, but should be shown by clear and convincing evidence, and any consent must be voluntary and uncoerced, either physically or psychologically. The government has the burden of proving the alleged consent. And it has been said that courts do not look with favor on the practice of substituting consent for the authorization of a search warrant.” 68 Am. Jur. 2d Searches and Seizures § 46 at 699 (1973). It is the general rule that “when statements of accused clearly indicate that the search or seizure is made with his voluntary consent he will be held to have waived his rights under the guaranty. Where, however, the surrounding circumstances show that they were not voluntarily made, the courts have generally regarded statements which ostensibly indicated invitation or consent to search as being involuntarily made, and hence not constituting consent or waiver.” 79 C.J.S. Searches and Seizures § 62 at 821-22 (1952). See, also, note 89 at 822 of the above citation, where particular statements are set out which have been held by the courts not to constitute waiver or consent.
The case of State v. French, 203 Neb. 435, 279 N.W.2d 116 (1979), cited in the majority opinion for the proposition that whether or not consent to search was freely and intelligently given is a question of fact to be determined from the totality of all the circumstances surrounding it, is actually and factually more in support of the position of the defendant with reference to his alleged consent to search than it is authority for the State. That case involved the search of the house of the
However, even assuming arguendo that this court could conclude from the foregoing evidence, without straining its credulity, that the foregoing ambiguous statement allegedly made by the defendant was sufficient to constitute a consent to search the cardboard
“More troublesome are cases which involve searches of containers which are neither luggage nor have any of the attributes thereof. The courts, with the notable exception of the California Supreme Court in People v. Dalton (24 Cal. 3d 850, cert den sub nom. California
v. Dalton, 445 US 946 [wherein the warrantless search of a large metal box and a ‘Longine’ box was deemed to be unlawful]), have generally upheld searches of unsecured boxes (United States v. Neumann, 585 F.2d 355; State v. Kahlon, 172 N.J. Super. 331), paper bags (United States v. Ross, -- F.2d -- [DC Cir, TAMM, J., April 17, 1980]; United States v. Vento, 533 F.2d 838; Clark v. State, 574 P.2d 1261 [Alaska]; Webb v. State, supra [dictum]), and other receptacles such as: plastic bags (United States v. Gooch, 603 F.2d 122; Flynn v. State, 374 So. 2d 1041 [Fla]), a closed but unlocked toolbox (Wyss v. State, 262 Ark. 502), a covered paper cup People v. Diaz, 101 Cal. App. 3d 440) and an ice chest (State v. Heberly, 120 Ariz. 541). “On the other hand, several courts have invalidated searches of nonluggage type containers which are locked (People v. Dalton, supra [metal box]), zippered (People v. Belton, 50 N.Y.2d 447 [zippered pockets of a jacket found in a car during a warrantless search of the vehicle]; United States v. Markland, 489 F. Supp. 932 [an insulated bag]), taped (United States v. Dien, 609 F.2d 1038 [cardboard box]; People v. Spencer, 74 App. Div. 2d 77 [cardboard box]), or fastened shut (People v. Rinaldo, 80 Ill. App. 3d 433 [large box with metal straps]).
Among the cases cited in Maldonado, supra, is United States v. Neumann, 585 F.2d 355 (8th Cir. 1978), in which the court considered a warrantless search of a department store box and stated at 360-61: “This court is of the opinion that the warrant requirement in Chadwick should not be extended to the facts of this case. There is simply an insufficient expectation of privacy in an unsecured cardboard box sitting in plain view in the passenger compartment of an automobile. The arresting officers merely lifted the lid of the box and discovered a large quantity of pills.” The court in Maldonado also stated at 700, 431 N.Y.S.2d at 585: “While a box of this sort is commonly used to transport
We note in passing, however, that if the defendant in this case would have sealed the cardboard box, or would have securely tied or fastened it in some manner, thereby manifesting a special expectation of privacy, the search by the police would have required the issuance of a search warrant under the law above quoted.
I also think that the majority opinion in this case might well have found that the search in question was one incident to an arrest, notwithstanding the fact that the defendant was arrested after the search was accomplished. The fact is, however, that the arrest was almost contemporaneous with, and immediately followed, the search of the box and the “pat down” of the defendant in which a spatula was discovered on his person. In Rawlings v. Kentucky, 448 U.S. 98 (1980), the U.S. Supreme Court stated at 111: “Where the formal arrest followed quickly on the heels of the challenged search of petitioner‘s person, we do not believe it particularly important that the search preceded the arrest rather than vise versa.”
Finally, I point out that the actual search of the defendant‘s car, during which the burglary tools were discovered, was done pursuant to a validly issued search warrant. While it conceivably may be argued that this violated the “fruits of the poisonous tree” doctrine, this is entirely conjectural, and I am far from convinced that it did. If it be concluded that a search, and the resulting evidence recovered in such search, was valid and did not constitute the “fruits of the poisonous tree,” then such evidence would clearly be sufficient in itself to sustain the conviction of the defendant.