*1 leases. The contention of the defendant Marie A. Dworak is without contrary merit. consider the unnecessary assignments error. district court is affirmed.
Affirmed. appellant. Nebraska, appellee, State v. Dennis Rys, 183 N. 2d 253 W. January 29,
Filed 1971. No. 37587. Martin,
O’Hanlon & for appellant. Clarence A. H. Meyer, Attorney General, and James J. Duggan, for appellee.
Heard before White, C. J., Carter, S'pencer, Boslaugh, Smith, McCown, JJ. Newton, J.
Newton, Defendant, for a violation of the motor ve- subsequently charged hicle laws, was a minor of alcoholic and convicted. He con- *2 against tends the evidence him was obtained as the result of an and seizure and is insuffi- cient to sustain his conviction. We affirm the of the district court. approximately
At on June 15, a.m. 1969, defendant, accompanied by young driving through six other men, was village Highway of Fort Calhoun on U. S. No. 73. village op- marshal observed that the automobile plates erated Stopped defendant was without number immediately approached
it. Defendant the mar- inspection shal and offered for his title to automo- request displayed bile. On he also his driver’s license. desiring ownership, The. marshal, verification of ordered passengers-out proceeded of the automobile and registration plates, look for a certificate, in-transit ownership. opening other indicia of On a front door and shining flashlight his the automobile, in he observed a whiskey lying plain sight bottle of right-hand on'the side of the floor front seat area. No other indicia was found. Defendant and five of his six passengers were minors. No arrest was made until discovery liquor only after of' the and then in connec- possession. its There tion with was no odor or about its inmates. No search warrant - had been .obtained. without license or number being operated
plates,
apparently
violation of
acting properly
law
within due
it. This
bounds when
would also b-e true
certificate
his search for
or other veri-
presented.
the title
The officer’s concern,
fication
justification
inspection
of the
for his
inside of the auto-
solely
possible
necessarily
relates
violation
mobile,
-Probable
motor vehicle laws.-
cause-to believe
of the
occurring
some other violation was
did not exist until
discovery
having
and no arrest
been made,
justified
upon
a search cannot
as
attendant
arrest.
holding
There are numerous cases
that when materials
in an automobile which are indicative of a criminal
plain sight
offense
looking
are in
of an officer
into the
justified
automobile from the outside, a search is
legal.
Mallory (Mo.),
See, State v.
Goodwin v. United States
C. Cir.,
347 F. 2d
Den. 382
Cert.
U. S.
The distinction between the case and those although above-mentioned is was in sight and could have been seen had the officer shone his flashlight through actually window, he did not see it until after he had the automobile door engaged technically and was in a search of the auto- *3 purpose. generally mobile for another It is held that stopped when a motorist is or arrested for a violation of the traffic or motor vehicle exploratory laws, an purpose search obtaining vehicle for the evi- dence of other offenses is unwarranted. See, United (3d Supp. Cir., States Tate People v. 209 F. 371 Mich. Lee, v. N. W. 2d 736. On the other hand, a search of such an automobile made in connec- stopped tion narily for with the violation which it is is ordi- although held to be a lawful it results in discovery of evidence some other offense. People App. Galceran, In v. 178 Cal. 2d 312, 2 Cal. Rptr. stopped 901, an automobile was because it had no plate inquiry regis- license it front disclosed was present. A tered to someone not search of the automobile uncover documents or other made to evidence of owner- notwithstanding upheld ship it disclosed offense. of another People Guerrero, 247 Cal
In 2d 687, 56 Cal.
Rptr. 7, Cert. Den. 390 an U. S. officer and checked his driver’s license. The officer outstanding then learned radio of an traffic warrant against defendant, arrested noted registration slip required by was not visible as Cali- opened fornia law. He the door to look it and on ob- serving property stolen in the car, he searched it. The sought registra- court stated: “The officer to locate the slip proper. tion within the car. This was He was not required ignore suspicious created plainly galvanized pipe protruding visible from purses the seat, under and several under the uneven front floor mat two inches which was to three above the floor.” Brooks, State v. 2d 422, 57 Wash. P. 2d illegally parked
defendant had automobile which sitting. opened he was An officer a door to talk to him checking while certificate, noticed goods some stolen in the automobile. The court stated: case, instant one of “In the officers the auto- question appellant regard- mobile door in order to ing part of the automobile. not a This was illegal contrary, of an course for a search. On the it awas reasonable
police handling officer to take in a case of illegally parked sitting car when someone it. lawfully position, Once officer could observe was there to be seen. As what we stated State v. ** (119 Llewellyn, 394): supra 306, Wash. P. place, justified taking Once in officers were cognizance fact crime that a committed by the defendant. The evidence thereof was before * * very eyes; took *.’ their it no search find it. bags paper clothing consisting
“The saw pants protruding from them uncuffed while was in process appellant questioning concerning *4 of the the own- ership of the automobile. As we have above decided, upon observation, lawful arrest could have been this bags paper the into the Therefore, made. search appel- prior to the arrest seizure of contents properly lant court denied and! the trial lawful, was suppress motion to this evidence.” 1965), (7th Cir., In the case of v. Owens United States 163, Ct. Cert. 382 U. S. 86 S. F. Den. Cadillac a new L. Ed. 2d Howell was Hightower. accompanied by Owens and arresting speeding offi for Howell was arrested registered finding to be to someone cer, the automobile present, suspected had Owens not it had been stolen. He open the contents of trunk examined then of the use trunk Evidence and of a suitcase therein. upholding narcotics was found. clear facts in court “It is from the stated: seizure, speeding not ‘a mere arrest for was the record that Taglavore United for as to search’ narcotics excuse (9th and that Cir. 291 F. 2d States, Pennsylvania con law, which arrest valid -under was ** * surrounding question. trols that justified arresting suspecting that he officer speed dealing routine more than a situation serious grounds believing ing he had reasonable nothing might There is to indicate the car be stolen. presence suspected the narcotics that the officer or opened, dis the suitcase other violation until Considering closing the needle. situation which attempts officer, faced the his to determine whether or violative of the car were unreasonable was stolen Amendment, and the evidence was turned Fourth which ” any ‘poisonous up tree.’ not the fruit of foregoing appears decisions situa- quite tions before similar to the case us. officer morning early at an defendant’s automobile purpose making exploratory for the hour, not an appeared because of to be an but what obvious search, unregis- namely, operating law, infraction get vehicle. Before out tered motor could leaped out of his auto- his own *5 346 presented
mobile, walked 'back .to the and officer, a title.. certificate of The in evidence and certificate not- it cannot actually guilty determined whether or not defendant was violating
of the motor vehicle laws. sufficiently reasonably circumstances were to unusual questions raise mind of officer and he desired presented. tags corroboration of the title No in-transit thought appropriate were visible the officer but it to tags,: check inside a in-transit ownership. certificate, or other evidence of purpose, purpose making For this not for the of general exploratory search for evidence of offenses, opened. the door was Evidence of the offense with charged which defendant is then observed sight. Under the circumstances we do believe the unreasonably guilty officer acted or was of an 'unrea- already sonable search and He seizure. had examined the driver’s of defendant, license ascertained de- required ignore fendant a minor, and was not the evidence before him. (cid:127) presence explanation of has Defendant offered no whiskey in the bottle of his automobile. The evidence simply presence indicates on the floor bottle plain sight of the front seat of' area the defendant driving. operator while he was Defendant rightful custody possession claimed of the automo question circumstances, bile. Under such of con scious is one to be determined Ordinarily ¡ narcotics, trier fact. when prem are'found oh or contraband materials a defendant’s possessed operated by or in an automobile ises of unlawful is deemed sufficient the evidence . in the absence rob sustain a conviction other rea ' .presence. explanation for See, its Grosh v. sonable 479; Bilz State, State, 225 N. W. v. 103Neb. 118Neb. 167; Schuck, v. 51 D. State N. 201N. W. 15, 170N. W. People 733; 342; Salte, 54 S. D. N. W. v. v. State App. Magdaleno, 32 158 Cal. P. Horne v. Nelson 824; State 345, 91 S. E. 2d State, Ga. (Mo. App., 1929), 21 W. 2d 190. S. affirmed.' court is district
Affirmed. McCown, J., dissenting. problems seizure posses- the search
While there are proof problems issues in the area of here, the glaring. sion of minor more are The auto- Critical out. additional facts need to be set presumptively mobile which the defendant was *6 any by not there evidence as was nor him, owned was The the he it. under which was to Rys notarized the evidence shows that “Donald R. was of the rela- of the There no owner vehicle.” is evidence Rys. tionship Rys the Dennis defendant, of Donald to R. occupants never iden- The six other of the vehicle were description, by nor tified in the evidence either name or positions “.Five of were their in the automobile shown. parties found to be less the other were the vehicle years years party or older.” old than 20 old. One was right-hand whiskey of the floor The on the side bottle “partially jacket or covered with a in the front seat was fight village The marshal went around coat.” side passengers all out of after the were of the vehicle jacket pulled the this door and the car “and whiskey away certain it was a to be from the- bottle ***.”. bottle majority opinion the statement makes sight defendant while “in
bottle was support driving.” to no evidence There is was statement'. village night. marshal used at people flashlight seven There were to the bottle. see ‘.
in the car. person any smelled alcohol on no time 'at The marshal drink nor in soft itself, the car nor in in the car, simply nó There is car. also in the which were bottles "knowledge or consciousness might except “arise inference by whatever apparently driving from the fact that he was the vehicle stopped. at the time it There is no evidence that passenger owner car of the not There car. any is not even evidence that was not owner years individual over 21 old. majority opin-
Under these factual circumstances, the “Ordinarily, ion holds: narcotics, when or con- premises traband are found materials on a defendant’s possessed operated by evidence of deemed sufficient sustain a conviction the absence of other reason- explanation presence.” able for its None of our cases gone support have ever that far and the cases cited in proposition support do not it. Most of the cases majority opinion premises, cited involve three vehicles, vehicles. cited cases which involve “ownership, are domination, crucial words control.” Salte,
State v. 54 S. D. 223N. W. comes closest supporting majority opinion. It states: “The finding owned, a vehicle dominated, and prima controlled accused is sufficient facie to possession.” establish a conscious and substantial (Mo. App.), In State Nelson S. W. belonged
court stated:
“The car
to another who was
*7
presumption
thereof,
and
control
and
prevail
possession
liquor
would
went with
possession of
and
the car.”
State,
In Horne v.
93 Ga.
345, 91 S. E. 2d 824, only
cited,
last of the vehicle trio
vehicle case
vintage,
“Presumptively
of recent
the court said:
belonged
whiskey
in the
found
to the owner
driving
of the automobile who was
the car.”
opinion
majority
may
correct,
here
If
be
a minor
liquor
convicted of
the mere
that he was
which
did not
fact
any
found, without
additional
own,
in which
possession.
proof of conscious and substantial
This would
be so
or
whether
not the owner of the automobile was
present in the car whether
not there were other
passengers
may
minor
While the
also.
court
wish to
overrule State v. Eberhardt,
176 Neb.
125 N. W. 2d
by ignoring
it, this is not the case in which to do it.
knowledge
In fact, the rule that
and consciousness of
of alcoholic
are essential elements of
proof was
reaffirmed
State v. Reeder,
conviction should be reversed. J., joins
Boslaugh, in this dissent. appellant Associates, Inc., corporation, Durand cross-appellee, Company, Guardian Investment appellee corporation, M. L. cross-appellant, appellees cross-appellees.
Strong al., et N. 2d 246
183 W. January 29,
Filed 1971. No. 37598.