State v. Blackman, 69368

• Decision Date: 14 March 1984
• Docket Number: No. 69368,69368
• Citation: 346 N.W.2d 12
• Parties: STATE of Iowa, Appellee, v. George W. BLACKMAN, Sr., Appellant.
• Court: Iowa Supreme Court

Page 12

346 N.W.2d 12

STATE of Iowa, Appellee, v. George W. BLACKMAN, Sr., Appellant.

No. 69368.

Supreme Court of Iowa.

March 14, 1984.

Rehearing Denied April 6, 1984.

Richard D. Crotty, Council Bluffs, for appellant.

Thomas J. Miller, Atty. Gen., Valencia Voyd McCown, Asst. Atty. Gen. and David E. Richter, County Atty., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McCORMICK, CARTER, and WOLLE, JJ.

HARRIS, Justice.

Defendant appeals following his convictions of two counts of conspiracy. Count one charged him with conspiracy to commit second degree burglary; under count two he was charged with conspiracy to commit second degree theft. See Iowa Code § 706.1 (1981). He assigns three errors on appeal, all of which we find to be without merit. We affirm the trial court and vacate a contrary decision of the court of appeals.

Through a paid informant, police learned of a plan to steal part of a valuable collection of antique watches from a Council Bluffs home. The informant was one of those involved in the plan. The police equipped the informant with a battery-operated listening device and then followed him to defendant's home. There the informant joined defendant and a man named Weiland. The three left defendant's home together and drove to another residence. By reason of the listening device the officers were able to hear the conversation between the three conspirators and learned the details of the time and place of the planned burglary.

Later the officers organized their "coverage" of the burglary. They instructed the informant of his role. They also arranged with the intended victim to leave his house open, in order to avoid damage, and to remove the most valuable watches from his collection, replacing them with less valuable ones. The officers arranged with other officers to be available for assistance and prepared to maintain constant surveillance of defendant's residence, the victim's residence, and the suspects on the evening selected for the burglary.

On the night selected the informant was again equipped with the listening devices. The burglary took place as planned, except that Weiland remained at defendant's home, claiming he was too drunk to participate. Later that evening Jack Bonebrake, who was only then revealed as the one seeking to buy the watches, joined the burglars at defendant's home. A few minutes later the police could no longer pick up transmissions from the listening device and entered defendant's home without a warrant. They said they feared for the informant's safety. Defendant, Bonebrake, and Weiland were arrested. The house was searched, though not thoroughly, and the watches were retrieved.

A few hours later, one of the deputies applied for and obtained a search warrant under which the house was searched and more than $4,000 was found. After his arrest and before the warrant was obtained, Bonebrake told the police he had entered the home with about $4,000 in cash.

Defendant first argues the warrantless entry into his home to arrest him was unconstitutional. The police, he claims, had ample time to obtain a warrant and should have done so. He says they are not saved by exigent circumstances because there was no evidence the informant was in danger. Defendant moreover contends that any danger was known well ahead of time and should have been anticipated. The State responds that the police had probable cause to arrest defendant and a reasonable belief the informant was in danger. It is the State's position the police could not have obtained a warrant earlier because all the suspects had not yet been identified.

I. Because the officers had neither an arrest nor search warrant it is incumbent upon the State to establish for our de novo review exigent circumstances that justify the entry. See State v. Luloff, 325 N.W.2d 103, 105 (Iowa 1982).

In State v. Holtz, 300 N.W.2d 888, 893 (Iowa 1981), we said:

A finding of exigency for a warrantless entry to make an arrest requires consideration of whether:

(1) a grave offense is involved;

(2) the suspect is reasonably believed to be armed;

(3) there is probable cause to believe the suspect committed the crime;

(4) there is strong reason to believe he is on the premises;

(5) thers is strong likelihood of escape if not apprehended; and

(6) the entry, though not consented to, is peaceable.

[Authority.] These criteria are important but not all-inclusive. Nor do all of them have to be satisfied before an exigency can be found. [Authority.] The ultimate issue is whether an emergency or urgent need for the warrantless entry existed. A warrant was required unless " 'an immediate major crises in the performance of duty' " afforded neither time nor opportunity to apply to a magistrate. Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970).

Defendant argues there were no exigent circumstances, pointing to the period of at least two days the officers knew of the conspiracy. This was ample time, defendant suggests, to obtain the warrant. Neither was there anything unexpected about the loss of battery power. The officers had told the informant to turn off the batteries if given the chance because they were likely to go dead. And defendant points out the State should have anticipated its concern about the possibility that those...