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STATE NEBRASKA v. JEREMY P. OSBORN

May 10, 1996

STATE OF NEBRASKA,

APPELLEE,

v.

JEREMY P. OSBORN,

APPELLANT.



Appeal from the District Court for Douglas County: James A. Buckley, Judge. Affirmed.

White, C.J., Caporale, Fahrnbruch, Lanphier, Wright, Connolly, and Gerrard, JJ.

Lanphier, J.

FOR PUBLICATION

[#Comment: State v. Osborn]

Filed May 10, 1996.

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2. Search and Seizure. Determinations of whether there was a seizure and, if so, whether it was unreasonable are both factual questions.

3. Motions to Suppress: Courts: Records. Henceforth, district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress.

4. Search and Seizure. One who voluntarily accompanies the police for questioning has not been seized.

5. One's initially consensual encounter with the police may be transformed into a seizure or detention by subsequent events.

6. Confessions: Proof. To be admissible in evidence, an accused's statement must be shown by the State to have been freely and voluntarily given and not to have been the product of any promise or inducement -- direct or indirect -- no matter how slight.

Jeremy P. Osborn appeals his convictions in the Douglas County District Court for first degree murder and use of a weapon in the commission of a felony. The primary issue raised is whether Osborn's confession should have been suppressed as the poisonous fruit of an illegal seizure. Osborn maintains that he was subjected to illegal seizure and custody without probable cause and that the confession was the result of same. Osborn also asserts that his confession should be suppressed because it was not freely and voluntarily made. The district court denied Osborn's motion to suppress his confession. The confession was introduced into evidence at the bench trial. Osborn's sole assignment of error is that the district court erred in overruling the motion to suppress. We affirm.

BACKGROUND

On December 13, 1993, Laura Gogan was found dead in her southwest Omaha apartment by her roommate. Gogan was a 19-year-old student at the University of Nebraska at Omaha. Gogan had suffered multiple lacerations and stabs to her neck. Her death was caused by asphyxiation in association with those wounds. The autopsy revealed that Gogan had engaged in sexual relations prior to her death.

The Omaha Police Division launched an extensive investigation into the crime. Gogan's friends and neighbors in the apartment complex were interviewed. Osborn lived with his father, Michael Osborn, in the same apartment complex as Gogan. At the time, Jeremy Osborn was a 19-year-old student attending Metropolitan Community College in Omaha.

Officers James Wilson and William Jadlowski, detectives with the Omaha Police Division, received information that Michael Osborn was concerned that his son might be connected with the murder. Wilson testified that they were unable to verify this information through the source, so they decided to interview the father and son directly. The officers began trying to contact the Osborns on Friday, December 17, and continued to attempt to contact them throughout the following weekend.

The officers had learned that the father had a job with a construction company. They decided to try to contact the Osborns early Monday morning in order to catch them before the father went to work. The officers did not have a warrant for Osborn's arrest because they did not believe that they had probable cause to charge him with Gogan's murder.

Officers Wilson and Jadlowski knocked on the Osborns' door at 6:30 a.m. The father answered the door, and the detectives identified themselves as police officers. The officers told the father that they wanted to speak to him and his son in regard to the Gogan murder. The officers asked the father if he and his son would come to Omaha police headquarters to be interviewed. The father said that his son was sleeping, but that he would wake him up.

Osborn testified that his father woke him up and told him that they were going to go to the police station to talk about Gogan's murder. The father testified that his son did not voice any objection to going to the police station. The Osborns followed Wilson and Jadlowski to the police station in their own car.

Osborn admitted that he went to the police station voluntarily and that he was willing to cooperate with the police at that time.

At police headquarters, Officers Wilson and Jadlowski showed the Osborns where to park and then met them at the front door. The officers took the Osborns to the criminal investigation bureau, located on the fourth floor. The officers told the Osborns that they wanted to interview both of them, beginning with the father. Jadlowski testified that they routinely interview people separately so that one person's answer does not influence the other person's response. At approximately 7 a.m., Wilson placed Osborn in a small interview room by himself and Jadlowski led the father to another interview room.

Officers Wilson and Jadlowski began interviewing the father at approximately 7:10 a.m. The father confirmed that he was suspicious about his son's possible involvement in the homicide. Upon learning that the father had discussed his suspicions with Paula Powell, his former wife and his son's mother, the police contacted Powell and asked her to come to police headquarters. Both parents were questioned until about 10 a.m. At that point, the officers told the parents that they were ready to interview their son.

While his parents were being interviewed, Osborn had remained in his interview room. The interview room was approximately 10 by 12 feet and contained a table and several office chairs. Osborn's testimony regarding his 3-hour wait in the interview room differs substantially from that of the Omaha police officers who were responsible for monitoring him.

Officer Wilson testified that when he placed Osborn in the interview room, he left the door open. Lt. Donald Thorson testified he had instructed his staff that witnesses and suspects should not be locked into interview rooms unless they had been placed in custody. Thorson produced an internal memo dated October 13, 1993, and the minutes of a staff meeting conducted on October 21. These documents disclose that the locked door policy was announced and discussed. In order to enforce this policy, the locks on the interview room doors were taped over.

Lieutenant Thorson instructed his staff that they were to document all contacts they had with a witness or suspect. The staff was further instructed to check on people waiting in interview rooms about every 20 to 30 minutes and offer an opportunity to use the restroom and to have something to drink. ...


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