State v. Birkestrand, No. 57108

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard by MOORE; RAWLINGS
Citation239 N.W.2d 353
Docket NumberNo. 57108
Decision Date18 February 1976
PartiesSTATE of Iowa, Appellee, v. Philip Ray BIRKESTRAND, Appellant.

Page 353

239 N.W.2d 353
STATE of Iowa, Appellee,
v.
Philip Ray BIRKESTRAND, Appellant.
No. 57108.
Supreme Court of Iowa.
Feb. 18, 1976.

Page 355

Jerald W. Kinnamon, Jon M. Kinnamon and R. Fred Dumbaugh, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins and Thomas Mann, Jr., Asst. Attys. Gen., Carl J. Goetz, Jr., County Atty., and Thomas M. Martin, Asst. County Atty., Iowa City, for appellee.

Heard by MOORE, C.J., and MASON, RAWLINGS, UHLENHOPP and HARRIS, JJ.

RAWLINGS, Justice.

Defendant, Philip Ray Birkestrand, appeals from judgment on jury verdict finding him guilty of possessing marijuana with intent to deliver. We affirm.

November 29, 1971, Donald Strand, an Iowa City Detective Sergeant, executed a search warrant application supportive affidavit. It encompassed an eight month investigation of Birkestrand. The application proper was signed by five peace officers. A magistrate issued the requested warrant. Thus armed, Strand and his fellow officers promptly entered defendant's residence at 1112 Brookwood Drive in Iowa City on November 30th. It had been leased for occupancy by himself and two others. At time of the search a Mr. Tauber (cotenant) and Debbie Grout were present with the accused. A fourth person, Robert Hoy (another cotenant) later arrived.

Page 356

The search started in the living room where a hashish pipe and some plant-like material were found under a couch cushion. In the northeast bedroom the police came upon a desk in which they found some bills, personal papers and a passport belonging to Birkestrand. In an adjoining closet the officers discovered two suitcases containing marijuana, LSD and hashish. After these findings Strand inquired as to whether the northeast bedroom was occupied by Birkestrand and he responded in the affirmative.

Upon a search of the kitchen the officers observed a dial-a-gram scale, commonly used by pharmacists and drug dealers, with a greenish-olive residue on and around it.

In a dining room table drawer were several nonpersonal items, a wallet containing $594, and Birkestrand's identification. He later requested the return of his money.

In brief, the officers discovered and seized (1) over 29 pounds of marijuana, some in 12 ounce compressed brick form, some in baggies, (2) some LSD and hashish; and (3) related paraphernalia.

November 30, 1971, return on the executed warrant was filed. (Code § 751.12).

Trial did not commence, however, until October 23, 1973, due in large part to an agreement with the county attorney under which Birkestrand was to act as an informant in certain specified circumstances. Under this compact, disposition of the above stated charge would depend upon the filing of charges against certain named persons. Determination as to compliance justifying dismissal of the charges against Birkestrand rested entirely in the prosecutor's discretion. March 2, 1973, proceedings against defendant were renewed.

In the interim defendant moved to suppress evidence obtained pursuant to the above noted search. Four days before trial, when the above motion came on for hearing, defendant also requested a continuance in order to obtain new counsel. Both motions were overruled.

After return of the guilty verdict, Robert W. Jansen, retained attorney for Birkestrand, was allowed to withdraw. Thereupon R. Fred Dumbaugh appeared as defense counsel. He then ineffectually moved for dismissal or alternatively a new trial.

January 3, 1974, defendant's newly retained attorney sought to prevent entry of judgment by filing an 'objection to imposition of sentence and application for judgment of acquittal' and by amendment raised an issue as to claimed double punishment.

Other facts which pertain to the foregoing will be later considered as they relate to these issue here urged in support of a reversal: Did trial court err in (1) overruling defendant's motion to suppress and admitting in evidence fruits of the search over defendant's standing objection that such were unconstitutionally obtained because there existed no underlying probable cause for issuance of the warrant; (2) failing to inquire of defendant as to his reasons for requesting a continuance in order to obtain new counsel four days prior to trial; (3) overruling defendant's directed verdict motion which asserted the State failed to prove 'intent to deliver' beyond a reasonable doubt; (4) sentencing defendant when he had already been sentenced in another criminal prosecution arising out of the same factual situation as the instant prosecution, thereby subjecting him to multiple punishments; (5) failing to ascertain whether defendant had complied with the agreement between him and the prosecutor whereby defendant was to act as an informer in exchange for dismissal or reduction of the charges pending against him?

These assignments will be considered in the order presented.

I. Probable cause exists for issuance of a search warrant if facts supplied to the issuing officer are sufficient in themselves to justify a reasonably cautious person to believe a crime has been or is being committed. See Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 564,

Page 357

91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971); State v. Everett, 214 N.W.2d 214, 217--218 (Iowa 1974); State v. Lynch, 197 N.W.2d 186, 191 (Iowa 1972).

For an extensive review of pertinent cases see State v. Kraft, 269 Md. 583, 307 A.2d 683, 685--698 (1973).

This court has also held validity of a search warrant is to be tested only upon information brought to attention of the issuing magistrate. See State v. Everett, 214 N.W.2d at 217; State v. Lynch, 197 N.W.2d at 191. See also State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975).

And, in order to suffice, claimed probable cause must rise above mere suspicion. See State v. Shea, 218 N.W.2d 610, 614 (Iowa 1974).

It still remains, however, the burden is upon one challenging evidential use of the products of a nonconsent search to prove they were illegally obtained. See State v. Moore, 261 Iowa 1100, 1105, 156 N.W.2d 890 (1968).

In light of the foregoing, this summarized analysis of Strand's affidavit in support of the warrant application is essential:

(1) Police investigation over an eight month period revealed defendant had been associating with persons under official observation for drug abuse. This assertion is based in part at least on defendant's known activities. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 643 (1969), noted the danger of relying on an accusation based merely upon an individual's general reputation and afforded no weight to the 'bald and unilluminating assertion' the defendant was 'known to be an associate' of gamblers. Later, however in United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081--2082, 29 L.Ed.2d 723 (1971), the court said:

'We cannot conclude that a policeman's knowledge of a suspect's reputation--something that policemen frequently know and a factor that impressed such a 'legal technician' as Mr. Justice Frankfurther--is not a 'practical consideration of everyday life' upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant's tip. To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer's knowledge of a suspect's reputation.'

See also Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960); United States v. Guinn, 454 F.2d 29, 34--35 (5th Cir. 1972), cert. denied, 407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685 (1972); cf. State v. Shea, 218 N.W.2d at 614.

(2) The name 'Phil' and a phone number, along with those of several known drug abusers, were found on a list possessed by Walter Rapinchuck, subsequently convicted of drug abuse. Noticeably, Strand's affidavit did not enhance the probative value of this statement by identifying the phone number as that of defendant Philip Birkestrand and no such connection could be presumed by the magistrate.

(3) A 'reliable informant reported he had seen drugs on April 13, 1971, at 2017 1/2 So. Dubuque St. and 'a white man' who lived there was 'dealing in heroin, mescaline and LSD'. That was defendant's place of abode at time of the report. The conclusory description of this informant as 'reliable' would not be sufficient if alone employed to establish probable cause. See State v. Valde, 225 N.W.2d 313, 315 (Iowa 1975). But here the tip lends credence to information given by a citizen informer, a Culligan Soft Water Company employee, Infra. See State v. Nelson, 234 N.W.2d 368, 373--374 (Iowa 1975), citing State v. Drake, 224 N.W.2d 476, 478--479 (Iowa 1974).

(4) September 22, 1971, defendant was living with Robert Hoy, known by the police to be a drug abuser. The basis for Hoy's reputation in the drug field is set out in detail. See United States v. Harris, supra.

Page 358

(5) Strand's barren assertion 'I received information * * *' that defendant and Hoy had entered into an agreement to sell cocaine should have been disregarded by the magistrate, but not solely because it represented opinion rather than fact. The affidavit discloses neither the source of this information nor any details which would establish its credibility. See State v. Johnson, 203 N.W.2d 126, 128 (Iowa 1972). Hearsay, even double or triple hearsay, may be sufficient for probable cause without extrinsic corroboration. See United States v. McCoy, 478 F.2d 176, 179 (10th Cir. 1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973); United States v. Kleve, 465 F.2d 187, 192 (8th Cir. 1972); State v. Everett, 214 N.W.2d at 217; State v. Dodson, 195 N.W.2d 684, 685 (Iowa 1972). Here, however, reference to the agreement was vague and there is no adequate basis for crediting same.

(6) On a routine call to 1112...

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43 practice notes
  • State v. King, No. 59140
    • United States
    • United States State Supreme Court of Iowa
    • 29 Junio 1977
    ...1977); State v. Wright, 244 N.W.2d 319, 320-321 (Iowa 1976); State v. Easter, 241 N.W.2d 885, 886-887 (Iowa 1976); State v. Birkestrand, 239 N.W.2d 353, 356-357 (Iowa 1976); State v. Boyd, 224 N.W.2d 609, 614-616 (Iowa Page 6 Mindful of the foregoing, we look now to the record. It reveals t......
  • Peterson v. State, No. 32
    • United States
    • Court of Appeals of Maryland
    • 1 Noviembre 1977
    ...Underdown v. District of Columbia, 217 A.2d 659 (D.C.Ct.App.1966); State v. Bean, 239 N.W.2d 556 (Iowa 1976); State v. Birkestrand, 239 N.W.2d 353 (Iowa 1976); State v. Chaffin, 324 So.2d 369 (La., 1975), cert. denied, 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832 United States v. Steeves, su......
  • State v. Moritz, No. 62991
    • United States
    • United States State Supreme Court of Iowa
    • 18 Junio 1980
    ...attaches only when a jury is sworn and the prosecution of the original informations never reached that stage. See State v. Birkestrand, 239 N.W.2d 353, 363 (Iowa III. Applicability of section 739.10. Moritz argues that section 739.10 excludes from its coverage all sheriffs and deputy sherif......
  • State v. Leto, No. 64359
    • United States
    • United States State Supreme Court of Iowa
    • 13 Mayo 1981
    ...cause requires more than a "mere suspicion" of criminal activity, State v. Swartz, 244 N.W.2d 553, 554 (Iowa 1976), State v. Birkestrand, 239 N.W.2d 353, 357 (Iowa 1976), or "innocent-appearing activity", State v. McManus, 243 N.W.2d at 579; State v. Post, 286 N.W.2d at 200, "there is a lar......
  • Request a trial to view additional results
43 cases
  • State v. King, No. 59140
    • United States
    • United States State Supreme Court of Iowa
    • 29 Junio 1977
    ...1977); State v. Wright, 244 N.W.2d 319, 320-321 (Iowa 1976); State v. Easter, 241 N.W.2d 885, 886-887 (Iowa 1976); State v. Birkestrand, 239 N.W.2d 353, 356-357 (Iowa 1976); State v. Boyd, 224 N.W.2d 609, 614-616 (Iowa Page 6 Mindful of the foregoing, we look now to the record. It reveals t......
  • Peterson v. State, No. 32
    • United States
    • Court of Appeals of Maryland
    • 1 Noviembre 1977
    ...Underdown v. District of Columbia, 217 A.2d 659 (D.C.Ct.App.1966); State v. Bean, 239 N.W.2d 556 (Iowa 1976); State v. Birkestrand, 239 N.W.2d 353 (Iowa 1976); State v. Chaffin, 324 So.2d 369 (La., 1975), cert. denied, 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832 United States v. Steeves, su......
  • State v. Moritz, No. 62991
    • United States
    • United States State Supreme Court of Iowa
    • 18 Junio 1980
    ...attaches only when a jury is sworn and the prosecution of the original informations never reached that stage. See State v. Birkestrand, 239 N.W.2d 353, 363 (Iowa III. Applicability of section 739.10. Moritz argues that section 739.10 excludes from its coverage all sheriffs and deputy sherif......
  • State v. Leto, No. 64359
    • United States
    • United States State Supreme Court of Iowa
    • 13 Mayo 1981
    ...cause requires more than a "mere suspicion" of criminal activity, State v. Swartz, 244 N.W.2d 553, 554 (Iowa 1976), State v. Birkestrand, 239 N.W.2d 353, 357 (Iowa 1976), or "innocent-appearing activity", State v. McManus, 243 N.W.2d at 579; State v. Post, 286 N.W.2d at 200, "there is a lar......
  • Request a trial to view additional results

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