State v. Anderson

• Decision Date: 07 February 1967
• Docket Number: No. 51950,51950
• Citation: 148 N.W.2d 414,260 Iowa 122
• Parties: STATE of Iowa, Appellee, v. Robert Duane ANDERSON, Appellant.
• Court: Iowa Supreme Court

Page 414

148 N.W.2d 414

260 Iowa 122

STATE of Iowa, Appellee, v. Robert Duane ANDERSON, Appellant.

No. 51950.

Supreme Court of Iowa.

Feb. 7, 1967.

Nielsen, Koons & Condon, Cedar Rapids, for appellant.

Lawrence F. Scalise, Atty. Gen., Ted. F. Fay, Jr., Asst. Atty. Gen., and Jack M. Fulton, County Atty., Cedar Rapids, for appellee.

GARFIELD, Chief Justice.

A jury found Robert Duane Anderson guilty of the crime of possession of burglar's tools in violation of section 708.7 Code, 1962. He has appealed from judgment on the verdict, contending the search of his automobile and receipt in evidence of articles found therein violated his rights under the Fourth Amendment to the federal constitution. We find the contention without merit.

So far as material here, section 708.7 provides: 'If any person be found having in his possession at any time any burglar's tools or implements, with intent to commit the crime of burglary, he shall be imprisoned * * *. * * * and the possession of such tools or implements shall be presumptive evidence of his intent to commit burglary.'

Sometime before 5 a.m. on Sunday, January 3, 1965, defendant was driving his automobile on First Avenue East in Cedar Rapids with his younger brother a front seat passenger. Police officers in their cars followed the automobile at times for some two hours. They had received a report of an attempted break-in of a tavern in the northeast part of the city and the Anderson brothers were suspected of committing the crime as well as several previous burglaries in the city. It was known they had been convicted several times. At the trial each admitted conviction of six previous felonies. Finally the officers decided to stop the car and check it and did so.

An officer first asked defendant to produce his driver's license and the two occupants were asked to get out of the car. Defendant had been seen to take something from his person and place it under the front seat of the car. After the two men alighted from the car, the officers saw a rifle lying on the floor board against the back of the front seat. An officer reached under the front seat and found a pistol. Both weapons were loaded. The two men were told they were under arrest for carrying concealed weapons and were driven to the police station. At the same time an officer drove defendant's car to the police garage near the station where the search begun at the place of arrest was promptly completed.

Completion of the search, after the car was moved, revealed two boxes of cartridges for the rifle, a sledge hammer, two pry bars, a cold chisel, a punch, a screw driver and a pair of buckskin gloves. The cartridges were found in the golve compartment and the tools under the seats. At the scene of the arrest the soles of defendant's boots were seen to be covered with tape which would render his footprints indistinct. Defendant was also wearing a pistol holster on the side of his 'Levis'.

After the search of the car was completed defendant was charged with possession of burglar's tools.

I. Before trial defendant moved to suppress evidence of the articles found in his automobile on the ground the search and seizure violated his rights under the Fourth Amendment to the federal constitution. Pursuant to request in the motion the trial court held an extended hearing thereon at which defendant testified in his own behalf and five police officers testified for the state. Oral arguments of counsel were heard and briefs were furnished the court.

The trial court ruled the search of the automobile at the police station was a continuation of the search properly commenced at the acene of arrest, that probable cause for the search existed when commenced, and overruled the motion to suppress.

What is heretofore stated is an outline of the evidence at the hearing of the motion to suppress as well as at the trial. Some other evidence will be referred to later.

II. The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' A like provision is Article I, section 8, of our state constitution.

The Fourth Amendment is enforceable against the states through the Fourteenth Amendment and renders inadmissible in a state court evidence seized in violation of the former provision. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933; State v. Hall, 259 Iowa ---, 143 N.W.2d 318, 320.

Defendant's main reliance is Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. We do not find it in point. There Preston and two others in a motorcar were arrested for vagrancy, searched for weapons and taken to police headquarters. No search of the car was attempted at the time of the arrest. Nor was the car used as an instrumentality in the commission of the crime for which the men were arrested. The Preston car was later driven by an officer to the police station from where it was towed to a garage and searched. The search revealed two loaded revolvers and other articles suitable for use in a robbery. It was held the search without a warrant failed to meet the test of reasonableness prescribed by the Fourth Amendment, rendering the evidence seized inadmissible upon a trial and conviction for conspiracy to rob a bank.

The Preston opinion recognizes 'Common sense dictates, of course, that questions involving searches of motorcars * * * cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of house may be reasonable in the case of a motorcar. (Citation) But even in the case of motorcars, the test still is, was the search unreasonable.' (Pages 366--367 of 376 U.S., page 883 of 84 S.Ct. page 780 of 11 L.Ed.2d).

III. Before calling attention to several decisions supporting our view that the Preston opinion does not call for a reversal under such facts as we have here, we note there is ground for holding defendant waived the right to contend the articles seized by the officers were illegally received in evidence.

Upon the trial the state separately offered in evidence each article found in the automobile as well as the pistol holster and boots with taped soles. Defendant's attorney not only made no objection, but affirmatively stated as to each offer he made none, thus apparently seeking to lead the jury to believe defendant willingly consented to the offers. The objection that 'certain items' said to be the result of illegal search and seizure were admitted in evidence was first made in defendant's motion for new trial after the verdict. Defendant's attorney was an experienced one evidently chosen by defendant.

Except that a motion to suppress evidence was made and denied here and this was not done in State v. Dwinells, Iowa, 146 N.W.2d 231, 234--235, this is a clearer case than Dwinells of waiver of the right to object to admission of the seized articles in evidence. However, we prefer not to rest our decision upon this ground which perhaps is somewhat technical. We hold the ruling on the motion to suppress was not error.

IV. A search for incriminating evidence without a warrant may be made if incident to a lawful arrest. State v. Dwinells, supra; State v. Polton, 259 Iowa ---, 143 N.W.2d 307, 309; State v. Raymond, 258 Iowa 1339, 142 N.W.2d 444, 447. The legality of defendant's arrest is not questioned. We are satisfied it was legal even though made without an arrest warrant. See Code section 758.4; also precedents last above cited and Ker v. State of Dalifornia, 374 U.S. 23, 41, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726, 743.

If the search begun at the time and place of arrest had been completed there the contention it was unreasonable, in violation of the Fourth Amendment, would be groundless. We think the slight delay in completing the search until the car had been moved to the police garage did not, under the circumstances here, render it unreasonable. Defendant himself testified at the hearing on the motion to suppress that the car was only partially searched at the time and place it was stopped.

An officer testified at the hearing to the abvious fact it is a little more convenient to search a car inside a garage than out on a public street amidst constant traffic. At the trial it was shown it was dark and cold, with the rear window of defendant's car frosted over, at the time it was stopped. As stated, it was before 5 a.m. Sunday, January 3. Further, the street on which the car was stopped carried the traffic on U.S. Highway 151 and Iowa Highway 64 through the state's second largest city. Completion of the search at that point might reasonably interfere with traffic and be dangerous.

To require the officers to complete their search of the car under these unfavorable conditions without moving it or to delay completion until a sworn application for a search warrant could be prepared and warrant obtained from a magistrate was not essential to compliance with the Fourth Amendment.

The Supreme Court has reminded us its 'decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract.' United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 688; State v. Hall, supra, 259 Iowa ---, 143 N.W.2d 318, 321.

It has been repeatedly held that what is a reasonable search depends upon the facts and circumstances of each case. United States v. Rabinowitz, 339 U.S. 56, 65, 70 S.Ct. 430, 435, 94 L.Ed. 653; Arwine v. Bannan, 6 Cir. Mich., 346 F.2d 458, 469; Fraker v....