State v. Brooks

560 N.W.2d 180, 5 Neb. Ct. App. 463, 1997 Neb. App. LEXIS 31
CourtNebraska Court of Appeals
DecidedFebruary 18, 1997
DocketA-96-417
StatusPublished
Cited by4 cases

This text of 560 N.W.2d 180 (State v. Brooks) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brooks, 560 N.W.2d 180, 5 Neb. Ct. App. 463, 1997 Neb. App. LEXIS 31 (Neb. Ct. App. 1997).

Opinions

[465]*465Miller-Lerman, Chief Judge.

Larry D. Brooks appeals from his conviction for possession of a controlled substance, crack cocaine, a violation of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 1994). For the reasons recited below, we affirm.

FACTS

On August 15, 1995, at about 12:05 a.m., Omaha police officers James Paul and Steve Orsi were patrolling in a marked cruiser in the area of 30th and Pratt Streets in Omaha. Officer Paul testified that while patrolling, he noticed a person, later identified as Brooks, urinating while facing the interior wall of a carwash. On cross-examination, Officer Paul stated that he could see Brooks’ penis during this incident.

The carwash was described as consisting of four bays with brick walls separating each bay and openings at each end. No cars were parked within the bays. A blue Cadillac that Brooks and his female companion were using that night was parked nearby. No other people were reported in the immediate area. At the suppression hearing, Brooks denied urinating at the carwash that night. He testified that he was there washing his car.

Officer Paul testified that upon seeing the activity at the car wash he concluded that Brooks should be arrested for littering. The officers stopped their cruiser and approached Brooks. Brooks was directed to come toward the officers. Contrary to the police officers’ direction, Brooks walked backward, apparently toward the blue Cadillac parked in the nearby lot. According to Officer Paul, he approached Brooks, placed his hand on Brooks’ arm, and escorted Brooks to the cruiser to administer a pat-down search and to arrest Brooks for littering. The officer asked Brooks to place his hands on the hood of the cruiser. Brooks did not comply. Instead, Brooks reached toward his pants pockets. The record shows that Brooks started to put his hands on the cruiser but then reached toward his pants pockets several times, thereby preventing the pat-down search until the officers handcuffed Brooks’ hands behind his back.

After Brooks was handcuffed, Officer Paul patted Brooks down and in the course of the search found a “small bulge” in Brooks’ right front pants pocket and removed the item. Officer [466]*466Paul stated that he had not noticed anything protrading from Brooks’ pockets prior to this search. The item found in Brooks’ pocket was a plastic bag containing a piece of brown paper wrapped around several rocks of crack cocaine.

Brooks was taken to police headquarters. According to the “Omaha Police Department Uniform Crime Report,” Brooks was charged with three offenses: littering; possession of a controlled substance, crack, with intent to deliver; and obstructing a police officer. The record on appeal does not disclose the subsequent history pertaining to the littering and obstructing a police officer offenses. An information was filed charging Brooks with possession of a controlled substance. It is the conviction of the possession charge which Brooks appeals.

Brooks filed a motion to suppress the evidence or information learned as a result of the stop and search, alleging that the search of his person was not incident to a lawful arrest, was done without valid consent, and was conducted without a valid warrant. A hearing was conducted on December 1, 1995, on the motion to suppress, and the facts recited above were testified to. The live witnesses were Officer Paul and Brooks.

In a written order dated December 14, 1995, the trial court overruled Brooks’ motion to suppress and made the following findings and order:

1. Officer James Paul observed the defendant urinating in public on August 15, 1995, in Omaha, Douglas County Nebraska. This is in violation of Section 20-114 of the Omaha Municipal Code. Paul therefore had sufficient probable cause to arrest the defendant. It is irrelevant that the defendant was arrested for littering rather than indecent exposure.
2. The search of the defendant was incident to a lawful arrest. In addition the defendant was not cooperative and was acting suspiciously.
3. The defendant’s motion to suppress is therefore overruled.

On January 11,1996, a stipulated trial based primarily on the evidence at the suppression hearing was had to the bench. Brooks offered and the court admitted exhibit 2, which was a copy of Omaha Mun. Code, ch. 20, art. V, § 20-114 (1967), per[467]*467taining to indecent exposure. Brooks unsuccessfully objected to the admission of the evidence of the crack cocaine found in the search, and his motion to suppress was renewed and overruled. The trial court found Brooks guilty beyond a reasonable doubt of possession of a controlled substance. Following sentencing, Brooks timely appealed.

ASSIGNMENT OF ERROR

Brooks assigns the following error: “Probable cause to arrest the Defendant [Brooks] did not exist and accordingly the search incident to arrest was illegal.”

STANDARD OF REVIEW

A trial court’s ruling on a motion to suppress has traditionally been upheld on appeal unless its findings of fact are clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). However, a new standard of review has emerged in cases such as this involving the legality of investigative stops and subsequent warrantless searches. We quote from the Nebraska Supreme Court’s recent decision in State v. Konfrst, 251 Neb. 214, 222-23, 556 N.W.2d 250, 258 (1996):

In light of the U.S. Supreme Court’s decision in Ornelas v. U.S., _ U.S. _, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), the traditional clearly erroneous standard of review of a district court’s determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search is no longer applicable. The clearly erroneous standard has now been supplanted by a two-stage standard in which the ultimate determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. Id..
A trial court’s ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. See, State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996); State v. Bowers, [468]*468250 Neb. 151, 548 N.W.2d 725 (1996). In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. Id.

See Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 1663, 134 L. Ed.

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Related

State v. Miller
616 N.W.2d 75 (Nebraska Court of Appeals, 2000)
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611 N.W.2d 853 (Nebraska Court of Appeals, 2000)
State v. Kinney
572 N.W.2d 383 (Nebraska Court of Appeals, 1997)
State v. Brooks
560 N.W.2d 180 (Nebraska Court of Appeals, 1997)

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560 N.W.2d 180, 5 Neb. Ct. App. 463, 1997 Neb. App. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brooks-nebctapp-1997.