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State v. Dudney11/12/2002
spicion or "'hunch,'" but less than the level of suspicion required for probable cause. State v. McGinnis, 8 Neb. App. 1014, 1020, 608 N.W.2d 605, 610 (2000). Whether a police officer has a reasonable suspicion based on sufficient articulable facts requires taking into account the totality of the circumstances. State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).
Dudney argues that there was no legal basis for the stop of his pickup because he was acquitted of the assault charge by a jury, but in so arguing, Dudney confuses two legal standards. A conviction requires proof beyond a reasonable doubt, while an investigatory stop requires only reasonable suspicion. In other words, the fact that the State did not prove beyond a reasonable doubt that Dudney was guilty of each element of the assault charge does not mean that Jensen did not have a reasonable suspicion that Dudney had been engaged in criminal activity sufficient for Jensen to stop Dudney to investigate the assault reported by Monday. Upon our review of the record, we conclude that Jensen clearly had a reasonable suspicion, based on articulable facts, that Dudney had been involved in a domestic assault and that Jensen was justified in stopping Dudney's pickup to investigate.
Dudney asserts that Jensen did not have probable cause for his arrest of Dudney for assault. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant. State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). With respect to arrest for third degree assault, Neb. Rev. Stat. § 29-404.02 (Reissue 1995) provides in relevant part that a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed:
(1) A felony;
(2) A misdemeanor, and the officer has reasonable cause to believe that such person either (a) will not be apprehended unless immediately arrested, (b) may cause injury to himself or herself or others or damage to property unless immediately arrested, (c) may destroy or conceal evidence of the commission of such misdemeanor, or (d) has committed a misdemeanor in the presence of the officer; or
(3) One or more of the following acts to one or more household members:
(a) Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury with or without a deadly weapon; or
(b) Threatening another in a menacing manner.
For purposes of this section, household members shall include spouses or former spouses, children, persons who are presently residing together or who have resided together in the past, persons who have a child in common whether or not they have been married or have lived together at any time, and other persons related by consanguinity or affinity.
Monday was clearly a member of Dudney's household. Although Dudney attempted to attack Monday's credibility, which attempt will be discussed in greater detail in the following section, we find in our de novo review that the information given by Monday to Jensen was reasonably trustworthy under the circumstances. See State v. Baue, supra. Upon our review, we conclude, as did the district court, that Jensen had reasonable cause to believe that Dudney either attempted to cause or caused bodily injury to Monday. We further conclude that Jensen had probable cause to arrest Dudney for assault, which arrest was in accordance with Nebraska law.
Dudney also asserts that Jensen did not have probable cause to arrest him for DU
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