State v. Bishop

• Decision Date: 21 May 1986
• Docket Number: No. 85-94,85-94
• Parties: STATE of Iowa, Appellee, v. Kevin Todd BISHOP, Appellant.
• Court: Iowa Supreme Court

Page 554

387 N.W.2d 554

STATE of Iowa, Appellee, v. Kevin Todd BISHOP, Appellant.

No. 85-94.

Supreme Court of Iowa.

May 21, 1986.

Rehearing Denied June 13, 1986.

Philip Miller, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Charles Neighbor, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McGIVERIN, SCHULTZ, and WOLLE, JJ.

REYNOLDSON, Chief Justice.

Defendant, Kevin Todd Bishop, appeals from judgment entered after a jury trial for delivery of a controlled substance (cocaine), and for possession of cocaine and marijuana. See Iowa Code § 204.401(1), (3) (1983). We affirm.

Based on the evidence adduced at trial, the jury could have found the following facts. In June 1984 the Newton police department (department) began a local undercover drug trafficking operation, headed by Sergeant Jerry Diamond. Tim Menke, an informant experienced in undercover drug operations, worked with Diamond. The department provided Menke with an apartment and paid him $175 per week. He also was reimbursed for mileage and expenses. These expenses amounted to twenty-five dollars a week in the operation's early stages and included money paid for cover charges or for drinks in bars or lounges that were suspected of drug-related activities.

Menke kept in daily contact with Diamond and also made typewritten reports of his activities. August 6, 1984, based on information received from Menke, Diamond obtained a warrant to search the defendant and Oscar's Lounge in Newton, a bar where defendant worked. The next day, before the warrant was executed, Menke went into Oscar's Lounge when defendant was working. At that time Menke purchased from defendant one-half gram of cocaine with three marked twenty-dollar bills. Menke immediately contacted Diamond and turned over the purchased cocaine. The latter then reapplied for a search warrant with the additional information of a drug purchase. The August 6 warrant was reissued on August 8 through a notation made on the warrant by the same judge. In addition, an arrest warrant for defendant was issued.

The Newton police executed the search warrant on August 9. They found marijuana in the office of Oscar's Lounge, but none of the marked bills. The police arrested defendant pursuant to the arrest warrant and, upon searching him, recovered a vial containing cocaine, and a straw containing traces of cocaine.

A trial information was filed charging defendant in separate counts with the above-controlled substance violations. Trial court denied defendant's motion to suppress the evidence seized through execution of the warrants. Defendant then filed a motion in limine to exclude potential hearsay evidence contained in the State's pretrial minutes of testimony. Trial court made no general ruling on this broad motion, but instead made specific rulings on expected testimony, after counsel's arguments in chambers.

Upon trial the jury returned guilty verdicts on all three counts. The court denied defendant's motions in arrest of judgment and for new trial, and he was sentenced to three concurrent terms of imprisonment.

In this appeal defendant asserts trial court committed errors in various rulings, and his constitutional rights were violated by the prosecutor's misconduct. We address these contentions in the divisions that follow.

I. Search and seizure issue.

On August 8, two days after the first unexecuted search warrant was issued, Diamond reapplied to the same judge for a warrant. This application included an additional sheet detailing Menke's activities and the information he had provided, and a background statement indicating the informant previously had given reliable information. Diamond also testified about the August 7 drug purchase. The judge "reissued" the warrant based on all this information. He wrote:

8-8-84. This information reexamined in light of the complaint against Kevin Todd Bishop [for delivery of a controlled substance] made this day; and the search warrant is reissued, based upon the added information also. A copy of the complaint to be attached to this.

Defendant asserts trial court erred in overruling his motion to suppress evidence seized in execution of the August 8 search warrant because it was not supported by probable cause. He argues his rights under the United States and Iowa Constitutions were violated by admission of the evidence at trial. See U.S. Const. amend. IV, XIV; Iowa Const. art. I, § 8. We have noted the search and seizure provisions of the United States and Iowa Constitutions contain identical language. State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982). Consequently, they generally are "deemed to be identical in scope, import, and purpose." Id.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court rejected the former two-pronged test for determining probable cause, established in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in favor of a totality of the circumstances analysis. 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548; see Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087-88, 80 L.Ed.2d 721, 726-27 (1984); State v. Bousman, 387 N.W.2d 605, 610 (Iowa 1986); State v. Luter, 346 N.W.2d 802, 807-08 (Iowa), cert. denied, --- U.S. ----, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984). Under Gates,

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (1960)).

The informant's veracity and basis of knowledge are no longer separate and distinct considerations. A deficiency in one of these factors will not necessarily invalidate the warrant for lack of probable cause. Rather, these factors are considered as part of the totality of circumstances, and a strong showing in one factor may compensate for the deficiency in another factor. ¹ Gates, 462 U.S. at 233, 103 S.Ct. at 2329, 76 L.Ed.2d at 545; Luter, 346 N.W.2d at 807-08. Further, even seemingly innocent activities may become suspicious when viewed in light of all the circumstances, and may help provide the basis for probable cause. Gates, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13, 76 L.Ed.2d at 552 n. 13.

Because warrants are preferred, we resolve all doubts in favor of their validity. State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982); see also Upton, 466 U.S. at 733-34, 104 S.Ct. at 2088-89, 80 L.Ed.2d at 727-28. We do not make our own independent determination of probable cause. Rather, we give great deference to the prior determination of probable cause by a judge or magistrate. Christenson v. Ramaeker, 366 N.W.2d 905, 908 (Iowa 1985). Our inquiry is whether the magistrate or judge had a " 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (quoting Jones, 362 U.S. at 271, 80 S.Ct. at 736, 4 L.Ed.2d at 708).

Under the totality of the circumstances, we find the judge had a substantial basis for concluding probable cause existed to support the issuance of the August 8 warrant. ²

Trial court properly overruled defendant's motion to suppress.

II. Failure to produce exculpatory evidence.

During trial defendant subpoenaed all police payment records relating to Menke. When defendant called Diamond the next day as a hostile witness, he was unable to produce most of the records. In chambers, defendant asked that the case be continued until the records were produced or be dismissed. Trial court found defendant was entitled to the information and continued the case for one more day, at which time the records were produced. Defendant used the records in his direct examination of Diamond and Menke in an attempt to impeach the credibility of both witnesses.

Defendant asserts the prosecutor's failure to produce police records of payments at an earlier time in the trial denied defendant his right to due process, a fair trial, confrontation and cross-examination of witnesses, and adequate preparation for trial. The State responds to these assertions by arguing defendant failed to preserve error. Passing the questionable error preservation issue, however, we find defendant's argument is meritless.

Defendant made no pretrial discovery request for production of these payment receipts. Apparently, the only request came during trial. Within two days the State produced the records. Further, although disclosure came after defendant's cross-examination of Diamond and Menke, defendant was able to use these records in direct examination of both hostile witnesses.

The present case is unlike United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), cases in which material evidence was discovered only after trial and therefore was not considered by the jury. Agurs, 427 U.S. at 100-03, 96 S.Ct. at 2396-97, 49 L.Ed.2d at 348-49; Brady, 373 U.S. at 84, 83 S.Ct. at 1195, 10 L.Ed.2d at 217. Where, as here, the evidence was disclosed during trial and at a meaningful time, due process has not been denied. See State v. Folkens, 281 N.W.2d 1, 6-7 (Iowa 1979); State v. Epperson, 264 N.W.2d 753, 756 (Iowa), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260 (1978); see also United States v. Kaplan, 554 F.2d 577, 580 (3d Cir.1977) (...