State v. Moore

218 N.W.2d 540 (1974)

192 Neb. 74

STATE of Nebraska, Appellee, v. Ronald R. MOORE, Appellant.

No. 39342.

Supreme Court of Nebraska.

June 6, 1974.

Alan Saltzman, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

This is an appeal from the denial of the motion to set aside under the provisions of the Nebraska Post Conviction Act a conviction for attempting to break and enter. The trial court denied the application. The petitioner appeals. On previous direct appeal we affirmed the conviction and sentence. State v. Moore, 189 Neb. 380, 202 N.W.2d 747.

The ground alleged for post conviction relief is that of an alleged illegal search and seizure of an automobile in which the defendant was a passenger and a subsequent denial of a motion to suppress evidence seized in the search.

This is essentially the same issue raised on the direct appeal but is supported by a new argument, namely: The initial stop of the automobile constituted seizure of the person of the petitioner and the subsequent search of the automobile was therefore illegal. The petitioner relies upon Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; and Carpenter v. Sigler, 8 Cir., 419 F.2d 169.

The evidence discloses that the auto in question was stopped by an officer of the state patrol near Minatare, Nebraska, which is a short distance from Scottsbluff, Nebraska, at about 1:15 a.m. on the morning of May 17, 1971. The officer had a short time earlier been advised of an attempted burglary of a Safeway Store at Scottsbluff shortly before midnight on May 16, 1971, and that the perpetrators had been apprehended, but that it was suspected the car with a Wyoming license was involved and accomplices had escaped.

The officer observed the auto, which had Wyoming plates, parked at a cafe in Minatare and one of the three occupants, a young woman, get out, enter the cafe, order three cups of coffee, and take them to the car. The car then departed. The officer followed the relatively slow-moving car and then stopped it and asked for identification and registration of the automobile. The registration was found to be in the name of one Michael Keith Ware. He was not an occupant of the car. The radio inquiry by the officer disclosed that the registered owner, Ware, was one of the *541 persons apprehended in the attempted burglary about an hour earlier. The arrest followed.

The issue of the search and seizure was decided on the direct appeal. We will not reexamine it in this post conviction proceeding. All the circumstances of the stopping were known at the time of the appeal. See State v. Moss, 191 Neb. 36, 214 N.W.2d 15.

Affirmed.