Opinion
No. 40391.
Filed April 28, 1976.
1. Criminal Law: Arrest: Misdemeanors: Probable Cause. A peace officer may arrest a person without a warrant if the officer has reasonable cause to believe the person has committed a misdemeanor in his presence, or has committed a misdemeanor and the officer has reasonable cause to believe the person will not be apprehended unless immediately arrested or may destroy or conceal evidence of the commission of the misdemeanor. 2. Criminal Law: Arrest. The use of binoculars by police as an aid in performing surveillance is not unlawful.
Appeal from the District Court for Lancaster County: SAMUEL VAN PELT, Judge. Affirmed.
T. Clement Gaughan and Dennis G. Carlson, for appellant.
Paul L. Douglas, Attorney General, and Steven C. Smith, for appellee.
Heard before SPENCER, BOSLAUGH, and CLINTON, JJ., and FAHRNBRUCH and GRANT, District Judges.
The defendant was convicted in county court of unlawful possession of marijuana. Upon appeal to the District Court the finding of guilty was affirmed and a fine of $100 imposed. The defendant has appealed to this court and contends the judgment should be reversed because he was convicted upon evidence which should have been suppressed because it had been obtained by an unlawful search and seizure.
The record shows the defendant was arrested in a residence at 1535 North 15th Street in Lincoln, Nebraska. This property had been under surveillance for about a month because the police suspected that controlled substances were being sold or delivered from the property.
On March 14, 1975, at about 9:15 p.m., two police officers were stationed in the alley behind the property. From the alley they could see through a rear window into the house and observe what was happening in the living room. There was a sheer curtain across the window but the drapes had been pulled back. Using binoculars, Officer Bullock saw a man, later identified as Whitney, smoking a cigarette that was being held in a pair of scissors. After taking the cigarette up to his mouth and smoking from it Whitney would pass it to his right. A short time later the cigarette would be returned to Whitney and he would smoke from it again.
The officers then went to the front of the house and knocked on the front door. Whitney opened the door and the officers walked into the living room. They displayed their badges and stated they were police officers. The defendant was sitting on a couch along the north wall to the right of where Whitney had been seated. The defendant had a pair of scissors in his hand and there was a hand-rolled cigarette and a package of cigarette papers to his left. There was a fairly strong odor of marijuana inside the residence.
The officers announced those present were under arrest for being in a place where a controlled substance was being used and for unlawful possession of marijuana.
The defendant contends his motion to suppress the evidence seized at the time of the arrest should have been sustained because it was obtained by an unlawful search and seizure. The State claims the search and seizure was incident to a lawful arrest.
The evidence shows the officers observed a marijuana party in progress and then arrested the participants. The officers had a right to be in the alley and there was nothing unlawful in their use of binoculars. See, United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Johnson v. State, 2 Md. App. 300, 234 A.2d 464; Commonwealth v. Hernley, 216 Pa. Super. 177, 263 A.2d 904; United States v. Minton, 488 F.2d 37; Fullbright v. United States, 392 F.2d 432; Annotation, 48 A.L.R. 3d 1178; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270. A peace officer may arrest a person without a warrant if the officer has reasonable cause to believe the person has committed a misdemeanor in his presence, or has committed a misdemeanor and the officer has reasonable cause to believe the person will not be apprehended unless immediately arrested or may destroy or conceal evidence of the commission of the misdemeanor. 29-404.02, R. S. Supp., 1974.
The arrest in this case was justified under the statute. The search and seizure was incident to a lawful arrest and was, therefore, not unlawful.
The judgment of the District Court is affirmed.
AFFIRMED.