State v. Nowicki

309 N.W.2d 89, 209 Neb. 640, 1981 Neb. LEXIS 957
CourtNebraska Supreme Court
DecidedAugust 7, 1981
Docket43764
StatusPublished
Cited by19 cases

This text of 309 N.W.2d 89 (State v. Nowicki) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nowicki, 309 N.W.2d 89, 209 Neb. 640, 1981 Neb. LEXIS 957 (Neb. 1981).

Opinions

Brodkey, J.

Joseph H. Nowicki, the defendant and appellant herein, was charged in the District Court of Douglas County, Nebraska, with possessing a controlled substance, to wit, cocaine, with the intent to distribute, deliver, or dispense in violation of Neb. Rev. Stat. § 28-416 (Reissue 1979). The case was tried before the court on July 22, 1980, and the defendant was convicted of the lesser-included offense of possession of a controlled substance as charged. Nowicki was subsequently sentenced to a term of probation for a period of 2 years, the first 60 days to be spent in the custody of the Douglas County Department of Corrections. He has now appealed to this court, and his sole assignment of error is that the District Court erred in overruling his motion to suppress the cocaine seized as being the fruit of an unlawful arrest. We affirm.

The record on appeal discloses that on May 23,1980, at approximately 4 p.m., Officer Thomas Gorgen of the Omaha Police Department was informed that one William Yoder had been arrested, and a quantity of suspected cocaine had been seized pursuant to a search warrant issued to Officer Jack Caniglia. At the time of the arrest, Yoder was driving a vehicle owned by [642]*642Hezekiah Pittman, who was suspected of distributing controlled substances in Omaha.

In an effort to locate Pittman, the police obtained information which led them to believe that Pittman was staying at the address of 13164 Grover Plaza in Omaha, and that he possibly had in his possession a quantity of cocaine. A search warrant for the address was obtained by Officer Caniglia, which was served upon the lessee of the premises, one Barney L. Boyd. Boyd informed the police that Pittman had spent the previous night at the apartment with another individual known to Boyd only as “Bill.” Boyd told the police that Pittman had remained at the apartment until 3 p.m. that afternoon, when Pittman received a telephone call from an anonymous caller informing him that “Bill” had been arrested. The physical description given by Boyd of the person known as “Bill” was similar to the description of William “Bill” Yoder who had been arrested driving Pittman's car. Boyd stated to the police that Pittman had requested a ride to the area of 24th and L Streets in Omaha, and that Pittman was carrying a brown cardboard box when he left the Boyd vehicle.

Upon their return to the Central Police Station, Officers Caniglia and Gorgen were advised by their supervisor, Lt. Robert Olson, that further information as to the whereabouts of Pittman had been obtained from two informants who had provided reliable information in the past. The first informant stated that Pittman was involved in drug activities with Joseph H. Nowicki, who resided at 2312% L Street with a Caucasian female named Denise Sedan, and that Nowicki was distributing cocaine from that address. The informant also stated that Nowicki was supplied with his cocaine by a black male known as Hezekiah Pittman and that it was probable that Pittman would go to the Nowicki residence if he needed a place to “hide out.”

The second informant stated to the police that he had observed Pittman in possession of a quantity of suspected cocaine within the previous 72 hours and that in [643]*643all likelihood Pittman would go to the residence of Nowicki to “hide out.” In addition, the second informant stated that Pittman owned a blue, two-door Dodge automobile that was parked in that vicinity, in which Pittman might hide suspected cocaine.

Based upon the information stated above, officers were assigned to prepare an affidavit and application for issuance of a search warrant for the apartment at 2312]4 L Street, and also for the persons of Hezekiah Pittman, Joseph H. Nowicki, Denise Sedan, and their automobiles. Officers Caniglia and Gorgen were assigned to commence surveillance of the defendant’s apartment to determine if Hezekiah Pittman was at that location. It appears that the police were directed to remain in position until the search warrant was completed and brought to the residence. During the surveillance, officers conducting the surveillance observed a blue 1967 Dodge two-door van parked in the Payless Shoe Store parking lot at 24th and L Streets. A check of the vehicle’s license indicated that the van was registered to Hezekiah Pittman. Also parked in the lot was a red pickup truck which Officer Caniglia was advised belonged to the defendant, Joseph Nowicki.

At approximately 9:30 p.m. that evening, a Caucasian male and female left the apartment and entered the blue van. The automobile was driven to the front of the building, at which time a black male left the building and entered the vehicle. At this time, Officers Caniglia and Gorgen were directed to follow the parties, and they began to follow the red pickup truck owned by the defendant. While the officers were following the truck, they were advised by Lt. Olson over their radio that they should stop and detain the driver of the truck if they thought he spotted them following the vehicle. The truck proceeded 3 blocks north on 24th Street where it turned into a McDonald’s restaurant.

Suspecting that the driver had spotted them, the officers stopped the vehicle in question and had the driver pull it to the side of 24th Street. At this time the [644]*644officers obtained the driver’s license and registration of the driver of the truck, which identified him as Joseph Nowicki. The defendant was told that the police were conducting an investigation, and Nowicki returned to the driver’s seat of his truck. After Nowicki returned to his vehicle, the officers were directed by Lt. Olson by radio to have the party transported to Central Police Station. As the defendant was leaving his truck at the request of the police, Officer Caniglia observed a plastic bag, with a white substance enclosed, protruding from the driver’s seat. It appears that there was a tear or slit in the seat, and Officer Caniglia testified that he could observe the plastic bag from where he was standing outside the truck. Officer Caniglia took the plastic bag into his possession. The contents were later identified as cocaine, and the defendant was subsequently arrested for possession of a controlled substance. It appears that while the police were detaining Nowicki prior to his arrest, Officer Gorgen returned to the surveillance area and obtained a police cruiser, which was used to transfer the defendant back to his residence at 2312% L Street. The warrant for the search of defendant’s residence, vehicle, and person arrived approximately 45 minutes later. The police subsequently found on the person of the defendant a small piece of folded magazine paper containing a white substance which was later identified as cocaine.

In his brief on appeal the defendant assigns as error that the District Court erred in failing to sustain defendant’s motion to suppress the cocaine seized as being the “fruit” of an unlawful arrest. Defendant’s primary contention is that the police did not have probable cause to arrest him as there was no evidence that the vehicle was violating any traffic regulations, or that the defendant was engaged in any other criminal activities. It would appear from the record that the defendant is challenging the investigative stop of his vehicle, rather than the subsequent search of his person.

By virtue of the authority contained in Neb. Rev. [645]*645Stat. § 29-829

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State v. Nowicki
309 N.W.2d 89 (Nebraska Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
309 N.W.2d 89, 209 Neb. 640, 1981 Neb. LEXIS 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nowicki-neb-1981.