Opinion
No. 38501.
Filed November 3, 1972.
1. Infants: Criminal Law: Words and Phrases. Contributing to the delinquency of a minor consists of an act which encourages, causes, or contributes to the delinquency of a child under 18 years of age. 28-477, R. S. Supp., 1972. 2. ___: ___: ___. A delinquent child is any child under the age of 18 years who has violated any state law or city or village ordinance. 43-201, R.R.S. 1943. 3. Infants: Criminal Law: Evidence: Intoxicating Liquors. Evidence that a defendant furnished the automobile used for a drinking party upon the public highways in which a 15-year-old girl was allowed to participate will sustain a conviction for contributing to the delinquency of a minor. 4. Motions, Rules, and Orders: Evidence: Parties: Criminal Law. A motion to suppress can be urged only by one whose rights were violated, not by one aggrieved solely by the introduction of damaging evidence. 5. Criminal Law: Police Officers and Sheriffs: Powers. A peace officer is authorized to stop any person in a public place whom he reasonably suspects of committing, who has committed, or who is about to commit a crime and he may demand of him his name, address, and an explanation of his actions. 29-829, R. S. Supp., 1972. 6. Criminal Law: Police Officers and Sheriffs: Powers: Time. An officer from an adjoining county may delay apprehending a person he reasonably suspects has committed a crime for a reasonable time so that he can obtain the assistance of a local officer. 7. Criminal Law: Police Officers and Sheriffs: Powers: Time: Arrest. A peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed a misdemeanor and has reasonable cause to believe that the person will not be apprehended unless immediately arrested, may cause injury to others unless immediately arrested, or may destroy or conceal evidence of the commission of the misdemeanor. 29-404.02, R. S. Supp., 1972. 8. Criminal Law: Police Officers and Sheriffs: Searches and Seizures. It is not a search for an officer to observe what is in plain view.
Appeal from the district court for Buffalo County: S. S. SIDNER, Judge. Affirmed.
Mingus Mingus, for appellant.
Clarence A. H. Meyer, Attorney General, and Betsy G. Berger, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The defendant was convicted of contributing to the delinquency of Lenora Pabian, a minor under the age of 18 years, and sentenced to imprisonment in the county jail for 4 months. He appeals, contending the evidence was insufficient to sustain the conviction and the trial court should have suppressed the evidence obtained as a result of his arrest. There is no issue concerning the constitutionality of the statute or the sufficiency of the complaint.
The record shows that Terry Kincheloe, a deputy sheriff of Buffalo County, Nebraska, saw the defendant's automobile parked on a county road in Sherman County, Nebraska, at about 12:30 a.m., on December 28, 1971. As Kincheloe approached the defendant's automobile he saw a beer can lying directly below the door on the driver's side of the automobile, and 2 beer cans behind the automobile. It had snowed during the evening of December 27, and the beer cans were lying on top of the snow. There were no tracks on the road except those that had been made by the defendant's automobile.
Kincheloe drove past the defendant's automobile and contacted the sheriff of Sherman County. Kincheloe and the sheriff then returned to the place where the defendant's automobile had been parked. The beer cans were there but the defendant's automobile was gone. At about 1:30 a.m., they stopped the defendant's automobile on the main street in Ravenna, Nebraska. When Kincheloe went over to the automobile to ask the defendant about the beer cans that had been near his automobile in Sherman County, Kincheloe detected a strong odor of liquor coming from the automobile and could see that there were several people in the automobile. Kincheloe then asked the defendant and the other occupants of the car, two men and two girls, to get out of the automobile. The girls were Lenora Pabian, 15, and Monica Fisher, 19. The defendant is 26 years of age.
When the defendant got out of the automobile, Kincheloe saw that there was beer on the floor of the automobile where the defendant had been sitting. The defendant and the other occupants were taken to the city hall and the defendant was told that he would be charged with contributing to the delinquency of a minor.
The record further shows that Lenora Pabian had been riding around in the defendant's automobile in Ravenna and the area nearby since about 8:30 p.m. during this time she had drunk both beer and wine furnished by the other men in the automobile.
The offense consists of any act which encourages, causes, or contributes to the delinquency of a child under 18 years of age. 28-477, R. S. Supp., 1972. A delinquent child is any child under 18 years who has violated any state law or city or village ordinance. 43-201, R.R.S. 1943. The defendant furnished the automobile used for a drinking party upon the public highways in which a 15-year-old girl was allowed to participate. The evidence was sufficient to sustain the conviction.
It is doubtful whether the defendant had standing to object to the testimony obtained from Lenora Pabian and the other witnesses who were passengers in the automobile. A motion to suppress can be urged only by one whose rights were violated, not by one aggrieved solely by the introduction of damaging evidence. State v. Rice, 188 Neb. 728, 199 N.W.2d 480.
The defendant contends that the officers had no right to stop his automobile in Ravenna because at that time there was not probable cause for his arrest. The defendant overlooks the right and duty of peace officers to investigate and prevent crime. In State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129, we said: "Defendant is laboring under the misapprehension that the same rule on probable cause applies when a person is merely stopped and questioned as when he is arrested. Defendant's approach presents a clash of interest between the protection of the public and the right of an individual. His premise is false and would cripple law enforcement. To require that a police officer must have probable cause for arrest before he can stop and question a person would extend the Constitution beyond the realm of reasonable intendment. By so holding, we would be unduly limiting police power for the mere sake of limitation. To do so would emasculate crime prevention and render peace officers impotent and useless. Individual rights on occasion must give way to the rights of society. This is the very purpose of law — to restrict the rights of the individual to provide protection for society. It is not possible to ignore the fact that police officers are charged with the duty to prevent crime as well as to detect it. Often an immediate inquiry is an indispensable attribute to the prevention and discovery of crime. This is particularly true where a moving vehicle is involved. Then, time is of the essence. Unless the vehicle is stopped and the occupants identified, it may be impossible to connect them to the area if a crime is later uncovered." See, also, A.L.I., Model Code of Pre-Arraignment Procedure, Proposed Official Draft No. 1, 110.2, p. 5.
A peace officer is authorized to stop any person in a public place whom he reasonably suspects of committing, who has committed, or who is about to commit a crime and may demand of him his name, address, and an explanation of his actions. 29-829, R. S. Supp., 1972. The circumstances of the defendant's automobile parked on the highway with freshly discarded beer cans around it was sufficient to justify a reasonable suspicion on the part of the officer that one or more crimes had been committed, were being committed, and would be committed. It was not essential that the officer stop and investigate immediately. Being from an adjacent county, it was reasonable for him to obtain the assistance of an officer from Sherman County. See, State v. Carr, 2 Conn. Cir. 247, 197 A.2d 663; Schindelar v. Michaud, 411 F.2d 80; 5 Am. Jur. 2d, Arrest, 33, p. 724.
After the officers had stopped the defendant's automobile in Ravenna and found there was beer in the automobile and a 15-year-old girl in the party, the arrest of the defendant was lawful. A peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed a misdemeanor and has reasonable cause to believe that the person will not be apprehended unless immediately arrested, may cause injury to others unless immediately arrested, or may destroy or conceal evidence of the commission of the misdemeanor. 29-404.02, R. S. Supp., 1972.
It was unnecessary for the officers to search the defendant's automobile. Both the beer and the 15-year-old girl were within the plain view of the officers and the officers were in a place where they had a right to be.
In view of the defendant's record, the sentence imposed was well within the discretion of the trial court. The judgment of the district court is affirmed.
AFFIRMED.