Summary
In State v. Schlothauer, 207 Neb. 663, 300 N.W.2d 194 (1981), a verdict was rendered prior to the Payton decision but the case was before this court when Payton was finally decided.
Summary of this case from State v. GeorgeOpinion
No. 43187
Filed January 9, 1981.
Appeal from the District Court for Scotts Bluff County: ALFRED J. KORTUM, Judge. Reversed and remanded.
James T. Hansen and Douglas Warner for appellant.
Paul L. Douglas, Attorney General, and Marilyn B. Hutchinson for appellee.
SUPPLEMENTAL OPINION
In their argument at rehearing, the State urged us to hold that the arrest was not illegal under Payton v. New York, Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In the first opinion, State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980), we remanded for a determination of the existence of exigent circumstances. In the opinion of the majority of the court, we should also remand for a determination as to whether the arrest was consensual.
We do not initially make factual determinations. Such determinations are for the trial court. We cannot comply with the State's request. In the event that the evidence establishes either consent or exigent circumstances, the arrest was legal, and the escape, a criminal offense.
The court, though invited to do so, expressly does not pass on whether under Payton, supra, evidence of an escape from custody must be suppressed as the fruit of an illegal arrest, or whether under our statute, Neb. Rev. Stat. § 28-912 (Reissue 1979), an illegal arrest can be said to have been effected "in good faith under color of law."
The original opinion is confirmed with the modification set forth above.
REVERSED AND REMANDED.