Critelli v. Tidrick

• Decision Date: 16 December 1952
• Docket Number: No. 48099,48099
• Citation: 56 N.W.2d 159,244 Iowa 462
• Parties: CRITELLI v. TIDRICK, Judge.
• Court: Iowa Supreme Court

Page 159

56 N.W.2d 159

244 Iowa 462

CRITELLI v. TIDRICK, Judge.

No. 48099.

Supreme Court of Iowa.

Dec. 16, 1952.

Rehearing Denied Feb. 13, 1953.

Don G. Allen and Anthony T. Renda, of Des Moines, for petitioner.

Clyde E. Herring, County Attorney, and John E. Sarbaugh, Assistant County Attorney, of Des Moines, for respondent.

BLISS, Justice.

Petitioner will be referred to as plaintiff, and respondent, as defendant.

On January 6, 1952, Dale Allen and Scott Crowley, policemen of the city of Des Moines, entered an eating place and tavern, known as Tropical Lounge, at 2202 Harding Road in said city, to serve and execute a search warrant and petitioner, who was apparently in charge of the place, and Caroline Smith, an employee who interfered with the officers were later charged with contempt of court in disobeying the search warrant. On January 11, 1952, the alleged offenders were served with notices issued out of the office of the county attorney, notifying them of an order that day issued by defendant citing them to appear at a specified time before the defendant or other judge of the Municipal Court, to show cause why they should not be punished for said contempt. They did appear, and after some postponements, a hearing was had in the contempt proceedings on February 13, 1952, and an order was entered by defendant purging Caroline Smith of the offense charged, and finding plaintiff guilty of contempt of court pursuant to sec. 665.2(3), Code of 1950, I.C.A., and setting February 20, 1952, for the pronouncement of punishment, at which time judgment was rendered. Plaintiff challenged in this proceeding the order and the judgment of defendant.

The facts, in substance, material to the issues, as set out in the return to the writ are these. Plaintiff testified that: he had no occupation on January 6, 1952: 'my wife owned the building which housed the Tropical Lounge, and I think Jimmie Critelli owns the business, and I have no interest at all in the Tropical Lounge. I have a beer dispenser's license to dispense at 2202 Harding Road. I work occasionally for Jimmie at the Tropical Lounge if he is busy. I don't work there, I just volunteer my time to him.'

On January 5, 1952, Lester L. Kellogg, a policeman of Des Moines, submitted to defendant a printed form for use in the Municipal Court, designated an 'Information for Search Warrant' entitled 'State of Iowa, Plaintiff vs. John Doe, 2202 Harding Road, Des Moines, Iowa, And Certain Intoxicating Liquors, Defendant'. It bore the signatures of Kellogg, and of the defendant, as judge of the Municipal Court and stated that it was signed and sworn to by Kellogg before the defendant judge on January 5, 1952. It also stated that the affiant believed and had good reason to believe that the defendant, John Doe, owned and kept intoxicating liquors and narcotics in the building on the premises located at 2202 Harding Road, commonly known as Johnny's Place, for sale in violation of the laws of Iowa.

A transcript of testimony in the return, given by Kellogg, shows that he signed and swore to the information before the defendant judge on January 5, 1952 who also signed his name at said time in the presence of the witness, and also made with pen and ink on the back of the information the following memorandum, towit: '1/5/52 Evidence taken and sufficient cause shown. DLT,J.'

The return further states that upon the completion of the information, Judge Tidrick prepared and signed the search warrant entitled the same as the information, bearing date of January 5, 1952, reciting in part as follows: 'The State of Iowa. To any Peace Officer of Polk County, Iowa: 'Information on oath having been duly filed before me, by a credible resident of said County, charging that certain intoxicating liquors', naming various kinds, were in the building and premises described in the information, and directing any peace officer to search the premises and to seize and keep all liquors found.

The information and the search warrant were delivered by Judge Tidrick to officer Kellogg who took them from the judge's office directly to the Vice Bureau office and placed them in the drawer of a desk, which police officer, Dale Allen, described as 'the desk is the one that is generally used--our desk.' Officer Kellogg testified that after he placed the documents in the desk drawer he never saw them again until at the time of the hearing.

Officer Dale Allen testified that he took the information and the search warrant from the desk drawer in the Vice Bureau office on January 5, 1952, as the return of service on the warrant states, and kept them in his possession, until Sunday evening January 6, 1952 when he and Officer Crowley went to the Tropical Lounge about 6:30 p. m.; that with the search warrant in his right hand, they entered the south door, about fifteen feet directly south of the bar, and as they walked toward the bar he called in a loud voice 'Police Officer with a search warrant; Don't destroy anything'; that as he shouted this and approached the bar he saw plaintiff standing behind the bar watching him, and then saw him lean over and empty the contents of a six-ounce glass with a clinking sound onto the perforated metal lid of a drain, and then place the empty glass on the back bar; that, as he and Crowley approached the swinging gate to go behind the bar, Caroline Smith attempted to block their way until Crowley pushed her aside; that he (Allen) then went behind the bar and handed the search warrant to plaintiff, who took it in his hands and looked at it as though he was reading it, and the witness told him he was under arrest for contempt of court, and plaintiff said 'O.K.'; that he (Allen) then observed some ice cubes on the metal cover of the drain, and smelled an alcoholic odor there; that he removed the cover of the drain and about a foot or a foot and a half below he could see liquid, from which he attempted to fill a four-ounce bottle, but the small size of the drain pipe prevented him; that as he was doing this the plaintiff was watching him and then pulled the plug from a sump used for rinsing glasses, and let the water in it pour into the drain pipe; that the witness told plaintiff to replace the plug which he did; Officer Allen then took a clean towel off the bar and placed it in the liquid in the drain pipe and when it became saturated he wrung four ounces of the liquid from it, which he placed in a bottle and sealed and delivered to the biochemist at the Iowa Lutheran Hospital in Des Moines, who tested it and found the liquid contained ethyl alcohol. Before Allen could finish saturating the towel, Caroline Smith pulled the sump plug and let more water into the drain. The officers took possession of several whiskey, or shot, glasses, some of which were wet and on the drain board, as though just used, and some were dry, and a number were in one of the sumps or wash basins. The testimony of Officer Crowley corroborated the testimony of Mr. Allen.

Three patrons of the Tropical Lounge testified that they were about the place when police officers were there but heard no announcement that the place was being searched. One of them testified that he was seated at the bar watching the plaintiff do card tricks, and observed none of the matters concerning which Officers Allen and Crowley testified.

Mrs. Smith and plaintiff testified in their own behalf. Both of them knew Officers Allen and Crowley and had seen them about the place at different times. Both denied that they interfered with the officers, and said they were not aware that the place was being searched and did not hear Officer Allen make such an announcement. Plaintiff denied that he dumped any intoxicating liquor.

For the sustaining of the writ of certiorari, plaintiff urges three propositions as errors committed by the defendant.

1. In holding there was a valid search warrant in the hands of the officers who searched the premises.

2. In holding the plaintiff's guilt had been established by clear and satisfactory evidence.

3. In admitting in evidence the bottle of liquid given to the chemist for analysis.

We will discuss these propositions in the order of statement.

I. There is no fact controversy respecting the first proposition. Plaintiff's chief contention is that there was no compliance with sec. 751.4, Code of 1950, I.C.A., in that there was no 'filing' of the written information 'before any magistrate'. The information with respect to the suspected law violations at the Tropical Lounge was laid before Magistrate Don L. Tidrick, a judge of the Municipal Court, by Officer Kellogg, who subscribed and swore to it before Judge Tidrick. The information was not stamped or marked filed in any way, nor placed in any file of the magistrate. After the search warrant was issued by the magistrate, the warrant and the written information were delivered to Officer Kellogg preparatory to having the warrant served and executed. As a regular police officer, Kellogg was in fact an officer of the magistrate's court. With reference to Municipal courts, sec. 602.7, Code 1950, I.C.A., states: '* * * All regular police officers shall be ex officio special bailiffs * * *.' Kellogg, as an official messenger of the magistrate's court, after evidence had been heard showing there was sufficient cause for the search and seizure, took the information and the warrant to the Vice Bureau office to have the warrant enforced, and placed them in a drawer in a desk generally used for that purpose, from which they were promptly taken by Officer Allen. Permitting the officer to take the information from the magistrate's court may not have been good or proper practice, and perhaps was an irregularity or erroneous but it did not invalidate the action of the Magistrate nor the search warrant nor nullify the execution and enforcement of the warrant by the police officers. Neither did it absolve nor purge the plaintiff of his contempt of court. What...