State v. Nichols ( 1973 )

Smith, J.

In a criminal prosecution for breaking and entering, defendant, Darrell G. Nichols, moved to suppress a radio that police officers without a warrant seized from an automobile. The court overruled the motion, and a jury found defendant guilty. On appeal he contends the court erred in the ruling. .

Officer Robertson of the Nebraska State Patrol • received radio information 'from another officer who had stopped the automobile at North Bend, Nebraska. He heard the description of the automobile, the names of the occupants, their records as known burglars, and that one of them, Noah McNamer, was a known drug offender. The men were considered armed and dangerous.

With the foregoing information Robertson on January 30, 1972, at 1 a.m. saw the automobile eastbound on U.S. Highway No. 30 at a point 5% miles east of Columbus. Having followed it and radioed for assistance, he with the assistance of another officer stopped the automomobile % of a mile west of S'chuyler, Nebraska. McNamer was the operator and Nichols was sitting opposite him.

Officer Williams, who was assisting Robertson, approached the right side of the automobile. Nichols, who was unaware of the presence of Williams, began to move around. Nichols’ hands were not visible to Williams, so the latter opened the door and turned his flashlight on them. Nichols was holding a walnut-grain wooden case near his feet on the floorboards. Upon inquiry he said the case was a cassette player, and he lifted the object to the area of his lap. Williams observed a radio with a price tag that listed a price of $54.05 and Dier Supply, the seller. He knew that Columbus was the location of the seller. Nichols then stepped outside the automobile, voluntarily handed the radio to Williams, and at the suggestion of Williams walked back to a patrol car to expose the object to more light. Within 3 or 4 minutes Williams was informed by another officer that Dier Supply had been burglarized the evening of January 29th or the early morning of January 30th. Arrest, prosecution, and conviction of Nichols ensued.

In evaluation of the reasonableness of a search or seizure without warrant it is imperative that the facts be judged against an objective standard. Would the facts available to the officer at the moment of the search or the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate? Wherever an individual may harbor a reasonable expectation of privacy he ought to be free from unconstitutional governmental intrusion. Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See, also, Adams v. Williams, 407 U. S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). The constitutional validity of a warrant-less seizure can only be decided in the concrete factual context- of the individual case. See, Adams v. Williams, supra; Sibron v. New York, 392 U. S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

Officers Robertson and Williams geared their actions to the state of their knowledge. No unlawful interference with Nichols’' right of privacy or freedom of movement occurred. The -district court correctly overruled the motion to suppress the evidence.

Affirmed.