State v. Adams

• Decision Date: 18 September 1996
• Docket Number: No. 95-1507,95-1507
• Citation: 554 N.W.2d 686
• Parties: STATE of Iowa, Appellee, v. Willie Lee ADAMS, Appellant.
• Court: Iowa Supreme Court

Page 686

554 N.W.2d 686

STATE of Iowa, Appellee, v. Willie Lee ADAMS, Appellant.

No. 95-1507.

Supreme Court of Iowa.

Sept. 18, 1996.

Rehearing Denied Oct. 22, 1996.

Michael R. Stowers of Babich, McConnell & Renzo, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel C. Voogt, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, SNELL, ANDREASEN, and TERNUS, JJ.

TERNUS, Justice.

Defendant, Willie Lee Adams, appeals his convictions and sentences for possession of cocaine base with intent to deliver in violation of Iowa Code section 124.401(1)(c)(3) (1993) and failure to possess a drug tax stamp in violation of Iowa Code section 453B.12. He raises several issues on appeal: (1) evidence obtained in a search of Adams after his arrest for theft should have been suppressed; (2) the trial court erred in failing to grant Adams' motion for judgment of acquittal on the tax stamp charge because the State failed to prove cocaine base is sold in dosage units; (3) the trial court erred in failing to grant Adams' motion for judgment of acquittal on the possession with intent to deliver charge because there was insufficient evidence of intent to deliver; (4) the trial court abused its discretion in sentencing Adams to a prison term; and (5) Adams did not make a knowing and intelligent waiver of his right to a preliminary hearing. Finding no merit in these assignments of error, we affirm.

I. Background Facts and Proceedings.

On December 21, 1995, Adams entered a department store and proceeded to place a hat inside his jacket. Without paying for the hat, he left the store. Once outside, he was confronted by the store's loss prevention officer. The store employee questioned Adams about the hat. Adams denied taking it, but the hat then fell out of his coat onto the ground. Adams was escorted back into the store and the police were notified of the shoplifting incident.

A police officer arrived at the store. The officer immediately placed Adams under arrest for shoplifting and patted him down. During the pat down, the officer felt a bag with several lumps of material in Adams' pocket. Upon removing the bag, the officer saw what he believed to be cocaine base, also known as crack cocaine. He also found $454 cash on Adams' person. The officer transported Adams to the police station.

The State charged Adams by preliminary complaint with possession of cocaine base with intent to deliver and failure to possess a drug tax stamp. ¹ At his initial appearance, Adams waived a preliminary hearing. Adams later requested a preliminary hearing but the district court denied his request.

The State filed a trial information and Adams entered a plea of not guilty. Adams then filed a number of motions, two of which are relevant to this appeal: (1) a motion to suppress the controlled substances found by the arresting officer on the basis the search and seizure were unlawful; and (2) a motion for bill of particulars attacking the tax stamp count on the basis cocaine base is not sold in dosage units as contemplated by Iowa Code section 453B.1(3).

The case proceeded to a bench trial at which Adams stipulated to the minutes of testimony. The court found Adams guilty of both counts, and subsequently denied Adams' motion for judgment of acquittal challenging the sufficiency of the evidence to support the court's judgment. After a presentence investigation report showed Adams had no prior criminal history, Adams requested deferred judgments on both convictions and probation. The court, however, sentenced Adams to concurrent indeterminate terms of imprisonment on each count. Adams appealed.

II. Did the Trial Court Err in Overruling Adams' Motion to Suppress the Evidence Discovered During the Police Officer's Search of Adams?

A. Standard of review. When the admission of evidence turns on the interpretation of a statute, we review for errors of law. State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994). To the extent Adams' claims are constitutional in nature, we review those claims de novo. State v. White, 545 N.W.2d 552, 554 (Iowa 1996). We consider both the evidence presented during the suppression hearing as well as the minutes of testimony constituting the record at trial. State v. Jackson, 542 N.W.2d 842, 844 (Iowa 1996).

B. The parties' contentions. The State asserts the officer's search of Adams was constitutional because it was conducted incident to Adams' arrest. See State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995). Adams' response is multi-layered. Adams first argues Iowa Code section 808.12(1) exclusively controls when and under what circumstances a shoplifter may be searched. He claims the officer's search violated this statute. Adams then contends that even if section 808.12(1) does not state an exclusive standard for searching shoplifters, the search cannot be justified as one conducted incident to arrest. That is so because, Adams claims, the police were required by Iowa Code section 805.1(1) to issue him a citation in lieu of arrest. Adams' final contention is Iowa Code section 805.1(4), which allows police to conduct a search incident to the issuance of a citation, is unconstitutional.

C. Does Iowa Code section 808.12(1) provide the exclusive means by which police may search a shoplifter? Adams contends any search of a shoplifter must fall within the scope of section 808.12(1):

Persons concealing property as set forth in section 714.5, may be detained and searched by a peace officer ... provided that the detention is for a reasonable length of time and that the search is conducted in a reasonable manner by a person of the same sex and according to subsection 2 of this section.

Iowa Code § 808.12(1). ² Adams argues the police officer's search of him violated this statute because Adams was not "concealing property" at the time of the search; the cap he took had already been recovered by the store employee and neither the police nor store personnel testified they suspected he had other merchandise concealed on his person.

In considering Adams' argument, we must decide whether the legislature, in enacting section 808.12, intended that this statute provide the exclusive authority for searching a shoplifter. To ascertain legislative intent, we look to what the legislature said. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). We do not speculate as to the probable legislative intent apart from the words used in the statute. State v. Haberer, 532 N.W.2d 757, 759 (Iowa 1995). The wording of the statute, however, is important for what is not stated as well as for what is stated. In this regard, we follow the rule that legislative intent is also expressed by the legislature's failure to address an issue. Wiebenga v. Iowa Dep't of Transp., 530 N.W.2d 732, 735 (Iowa 1995) ("legislative intent is expressed by omission as well as by inclusion").

In examining section 808.12, one finds no words that directly state or imply searches of shoplifters may only be conducted under the circumstances specified in the statute. If the legislature intended to preclude the police from searching an arrested shoplifter unless the shoplifter was concealing stolen merchandise, we would expect the statute to clearly express such a dramatic limitation on the authorities' power to search. Because we find no evidence of the legislature's intent to impose such a limitation, we conclude a warrantless search that is constitutionally valid under the Fourth Amendment to the United States Constitution is unaffected by section 808.12(1). This conclusion makes it unnecessary for us to consider what requirements are imposed by section 808.12 for searches conducted pursuant to that statute and whether the search here met those requirements.

D. Was the police officer's search of Adams constitutionally permissible as a search incident to arrest? Adams argues that even if section 808.12 does not limit the authority officers would otherwise have to conduct a search incident to arrest, the search of Adams cannot be justified. He claims the police were required to issue him a citation in lieu of arrest.

Iowa Code section 804.7(2) allows a police officer to arrest a person without a warrant where a public offense has been committed and the officer has reasonable grounds for believing the person arrested has committed it. A "public offense" is conduct prohibited by statute and punishable by a fine or imprisonment. Iowa Code § 701.2. Taking possession of another's property not exceeding one hundred dollars in value with the intent to deprive the owner of the property is theft in the fifth degree. Id. §§ 714.1, .2(5). Clearly, probable cause existed here to believe Adams committed fifth-degree theft, thereby justifying his arrest for that offense.

Adams argues, however, that Iowa Code section 805.1(1) requires the police to issue a citation in lieu of arrest. The clear wording of the statute belies such an intent:

Except for an offense for which an accused would not be eligible for bail under section 811.1, ... a peace officer having grounds to make an arrest may issue a citation in lieu of making an arrest without a warrant or, if a warrantless arrest has been made, a citation may be issued in lieu of continued custody.

Iowa Code § 805.1(1) (emphasis added). The use of the word "may" shows the legislature's intention to confer a discretionary power, not to impose a requirement. State ex rel. Lankford v. Allbee, 544 N.W.2d 639, 641 (Iowa 1996); Little v. Winborn, 518 N.W.2d 384, 387 (Iowa 1994). Compare Iowa Code § 4.1(30)(c) ("The word 'may' confers a power.") with id. § 4.1(30)(a) ("The word 'shall' imposes a duty.") and id. § 4.1(30)(b) ("The word 'must' states a requirement."). Consequently, section 805.1(1) does not require an officer to issue a citation in lieu of making an arrest. Therefore, the police officer here was free to...