2023 Nebraska Revised Statutes › Chapter 29 - Criminal Procedure › 29-404.02 - Arrest without warrant; when.

29-404.02.
Arrest without warrant; when.
(1) Except as provided in sections 28-311.11 and 42-928, a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed:
(a) A felony;
(b) A misdemeanor, and the officer has reasonable cause to believe that such person either (i) will not be apprehended unless immediately arrested, (ii) may cause injury to himself or herself or others or damage to property unless immediately arrested, (iii) may destroy or conceal evidence of the commission of such misdemeanor, or (iv) has committed a misdemeanor in the presence of the officer; or
(c) One or more of the following acts to one or more household members, whether or not committed in the presence of the peace officer:
(i) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;
(ii) Placing, by physical menace, another in fear of imminent bodily injury; or
(iii) Engaging in sexual contact or sexual penetration without consent as defined in section 28-318.
(2) For purposes of this section:
(a) Household members includes 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, other persons related by consanguinity or affinity, and persons who are presently involved in a dating relationship with each other or who have been involved in a dating relationship with each other; and
(b) Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context.
Source
Laws 1967, c. 172, § 2, p. 487;
Laws 1989, LB 330, § 1;
Laws 2004, LB 613, § 6;
Laws 2017, LB289, § 11.
Annotations
1. Felony
2. Misdemeanor
3. Probable cause
4. Miscellaneous
1. Felony
When a law enforcement officer has knowledge based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect has committed a felony, the officer has probable cause to arrest without a warrant. State v. Robinson, 233 Neb. 729, 448 N.W.2d 386 (1989).
A peace officer may arrest without a warrant if the officer has reasonable cause to believe that the person to be arrested has committed a felony. State v. Horn, 218 Neb. 524, 357 N.W.2d 437 (1984); State v. George, 210 Neb. 786, 317 N.W.2d 76 (1982); State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975); State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974); State v. Beasley, 183 Neb. 681, 163 N.W.2d 783 (1969).
2. Misdemeanor
There is probable cause for a warrantless arrest under subsection (2)(c) of this section when an officer has reasonable cause to believe that a misdemeanor has been committed and there is reasonable cause to believe that the evidence may be destroyed or concealed. There is reasonable cause to believe that evidence of intoxication may be destroyed by the metabolic processes of the human body. State v. Halligan, 222 Neb. 866, 387 N.W.2d 698 (1986).
This section authorizes any peace officer to arrest a person who commits a misdemeanor in his presence. State v. Chambers, 207 Neb. 611, 299 N.W.2d 780 (1980).
Police may use binoculars in surveillance, and may arrest without a warrant if there is reasonable cause to believe person has committed misdemeanor in their presence, or has committed misdemeanor, and officers have reasonable cause to believe evidence may be destroyed or concealed. State v. Thompson, 196 Neb. 55, 241 N.W.2d 511 (1976).
Peace officer may arrest without a warrant if he has reasonable cause to believe the person has committed a misdemeanor, that he will not be apprehended or may cause injury to others unless immediately arrested, or may destroy or conceal evidence of the commission of the misdemeanor. State v. McCune, 189 Neb. 165, 201 N.W.2d 852 (1972).
A law enforcement officer may make a lawful arrest without a warrant if there exists a reasonable or probable cause that a person has committed a misdemeanor in the officer's presence. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
3. Probable cause
The test for probable cause for a warrantless arrest is whether at the moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).
Where defendant's erratic driving and subsequent conduct is sufficient to give police probable cause to believe defendant was under the influence of drugs or liquor, it is permissible for the police to pursue defendant into a private dwelling. State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978).
Probable cause for arrest and for search and seizure exists where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. State v. Dussault, 193 Neb. 122, 225 N.W.2d 558 (1975).
Probable cause for arrest is to be determined upon objective facts available at time of arrest but there is no requirement that before arrest officer must conduct trial. Morrison v. United States, 491 F.2d 344 (8th Cir. 1974).
Arresting officer not being present at time offense committed and under facts outlined without probable cause for warrantless arrest, evidence seized on search incident to arrest was inadmissible. Turk v. United States, 429 F.2d 1327 (8th Cir. 1970).
4. Miscellaneous
Although the diminishment over time and the ultimate elimination of alcohol in the bloodstream are not willful or intentional, this metabolic process nonetheless constitutes the destruction of evidence such as to provide a basis for effecting a warrantless arrest under the provisions of this section. State v. Wegener, 239 Neb. 946, 479 N.W.2d 783 (1992).
The destruction of evidence through the dissipation of an individual's blood-alcohol level over time is sufficient justification for a warrantless arrest. State v. Marcotte, 233 Neb. 533, 446 N.W.2d 228 (1989).
A warrantless arrest, set in motion on a public road, may not be defeated by means of escaping to a private driveway. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
Officer's conduct in making an arrest under the apparent authority of sections 29-404.02 and 29-411 did not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of the defendant's statements. State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981).
Warrantless arrest was lawful after officer discovered small bag of marijuana in "plain view" in back seat of car driven by defendant, thereby permitting a search of the car's trunk as a search incident to a lawful arrest. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).
A warrantless arrest in the hallway outside the apartment of the person arrested, which took place as the person arrested was returning to his apartment, does not violate this section. State v. Tipton, 206 Neb. 731, 294 N.W.2d 869 (1980).
Absent exigent circumstances police may not arrest a person in his home without a warrant. State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980).
Absent a contrary showing, an arrest made by Nebraska authorities in a neighboring jurisdiction is presumed governed by laws the same as laws in Nebraska. State v. Wilson, 199 Neb. 765, 261 N.W.2d 376 (1978).
Exigent circumstances in this case justified entry into house to make arrest without a prior disclosure of authority or purpose. State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973).