State v. Baych

• Decision Date: 24 July 1969
• Docket Number: No. 53420,53420
• Citation: 169 N.W.2d 578
• Parties: STATE of Iowa, Appellee, v. James Michael BAYCH, Appellant.
• Court: Iowa Supreme Court

Page 578

169 N.W.2d 578

STATE of Iowa, Appellee, v. James Michael BAYCH, Appellant.

No. 53420.

Supreme Court of Iowa.

July 24, 1969.

Gerald W. Magee, Jefferson, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and R. K. Richardson, County Atty., for appellee.

LARSON, Justice.

On January 15, 1968, a county attorney's information was filed charging the defendant, James Michael Baych, with carrying a concealed weapon in violation of section 695.2, Code of 1966. Subsequent to a plea of not guilty, a trial by jury was had, resulting in conviction as charged. On October 4, 1968, defendant was sentenced to the Men's Reformatory at Anamosa for a term not to exceed five years, and on November 13, 1968, he filed notice of appeal.

The record discloses that about 7:30 on the evening of January 15, 1968, Joseph Charles Goodell and Wayne Juhl, of Dana, Greene County, Iowa, observed a black 1959 or 1960 Thunderbird automobile parked in the center of the street in front of their respective homes. Investigation disclosed that a man, later identified by the two as the defendant, was sitting alone in the automobile and, when asked by Juhl if he was waiting for someone, defendant said something about a 'buddy' could drive. Both Juhl and Goodell observed a pistol on the dashboard of the car, later identified as defendant's automobile. After a conference, Goodell had the man come into his house for coffee, at which time both witnesses observed the defendant and believed he had been drinking. Juhl testified that, after defendant had been given coffee, he went back to his car, got in the driver's seat, and drove away.

At a hearing on defendant's motion to suppress evidence seized from his automobile, on the grounds that the search and seizure was illegal and in violation of Amendment 4 of the United States Constitution and Article I, Section 8, of the Constitution of the State of Iowa, Officer Kenneth Bolz, a highway patrolman, alone testified. He told of stopping defendant's automobile and of finding a .38 caliber revolver therein pursuant to a consent search of the car. The trial court overruled this motion.

At the trial Officer Bolz stated he received a message after 7:30 P.M. on January 15, 1968, to be on watch for a dark-colored Thunderbird, that the driver was intoxicated, and that a gun had been seen in this car. Prior to the time he stopped defendant's automobile he went to Dana, Iowa, talked with Mr. Goodell, and, not finding the car in Dana, he radioed highway patrol cars in the vicinity for aid in locating it. The marshal at Grand Junction reported the vehicle was traveling east on Highway 30 near the junction of Highways 30 and 169. Officers Bolz and Beaman intercepted the vehicle shortly thereafter.

Orville Beaman, also a highway patrolman, testified that at approximately 9:30 P.M. he and Kenneth Bolz stopped this dark-colored Thunderbird and observed the defendant, then a passenger in the automobile. As he approached the defendant's car from the driver's side, Officer Bolz approached from the passenger side of the car. He asked the driver and the defendant to step out of the car. They were then frisked for weapons. Finding none, Bolz asked the defendant where the gun was and he said 'There's no gun' and to 'go ahead and search the car.' The defendant did not dispute this statement.

Both patrolmen testified that defendant was intoxicated. Officer Beaman placed defendant under arrest for intoxication. The car was searched by Officer Bolz, who found the loaded stub-nosed .38 caliber revolver under the left rear floor mat of the car. The defendant was subsequently charged with carrying a concealed weapon in violation of section 695.2 of the Code.

In his appeal appellant assigns three errors relied upon for reversal. He maintains the trial court committed reversible error (1) in admitting evidence relating to the gun, because the search and seizure was not by consent or as incident to a lawful arrest but was the product of an illegal search and seizure, (2) in refusing to exclude or strike testimony that was highly prejudicial, because it was not based upon proper foundation and was therefore incompetent, irrelevant, and immaterial, all of which deprived him of a fair trial, and (3) in failing to direct a verdict, because all the essential elements of the crime were not proven.

It is the State's position that the search for and seizure of the gun from defendant's automobile were made pursuant to consent voluntarily given, that the officers also made the search of this automobile on probable cause, and that under these circumstances no search warrant was required.

I. There are two principal categories of searches, i.e., those made under a search warrant, and those made without a search warrant. Generally, searches made without a warrant must be made by voluntary consent or as incident to a lawful arrest. State v. Brant, Iowa, 150 N.W.2d 621, 624, and citations; State v. Moore, Iowa, 156 N.W.2d 890, 893. The search here was without a warrant. Was it made pursuant to a voluntary consent? Was it made as incident to a lawful arrest? Was it made pursuant to probable cause and was it reasonable? We shall consider these questions, but not necessarily in that order.

II. It has long been recognized that a valid search of a vehicle moving on a public highway may be had without a warrant or consent and prior to arrest where the seizing officer has probable cause to believe the contents of the vehicle may offend the law. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; State v. Rye, 260 Iowa 146, 148 N.W.2d 632. See also United States v. Bonanno, D.C., 180 F.Supp. 71, 79--80; Carlson, The Law of Arrest, Search and Seizure in Iowa, p. 34; 49 Iowa L.Rev. 574.

The above rule, often referred to as the 'Carroll rule', allows search to be made of a mobile vehicle on probable cause alone. This stands as a recognized exception to the rule that warrantless searches should only be made incident to a lawful arrest or with the suspect's consent. Both the Carroll and Brinegar cases involved illegal transportation of liquor, the first during the prohibition era, the second after repeal. They recognize the officers do not have an absolute right to stop automobiles for investigation on mere whim or suspicion. Each case, under the facts and circumstances reviewed, found that the officers had probable cause to stop the involved vehicle.

In Carroll, it is stated:

'On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. * * * the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessarily difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for the belief that the contents of the automobile offend against the law.' Carroll v. United States, supra, 267 U.S. 132, 149, 153, 158--159, 45 S.Ct. 280, 283, 285, 287, 69 L.Ed. 543, 549, 551, 554. To the same effect, also see Dyke v. Taylor Imp. Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (June 23, 1969).

In the Brinegar case, in discussing the question of probable cause for warrantless searches in this area, the court said:

"The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' McCarthy v. De Armit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion, 267 U.S. at page 161, 45 S.Ct. at page 288, 69 L.Ed. 543, 39 A.L.R. 790. And this 'means less than evidence which would justify condemnation' or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790.' Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1310--1311, 93 L.Ed. 1879, 1890.

Although the area of search without a warrant has been narrowed by recent United States Supreme Court cases, we have found none that disturb the precedent set by the above cases.

In State v. Rye, supra, we recognized the rule announced in Carroll and applied it to the suspect's car, which upon probable cause was thought to contain stolen merchandise. Therein the police were aware that a suit had been stolen from a men's store. The suspects were described as two women, one wearing a blond wig, who were reported to have gotten into a car driven by an unidentified third person. The license number as well as the type of car were known to the officers. Upon spotting the automobile and the three suspects in it the car was stopped, and found therein were a woman's blond wig and...