State v. Bousman

• Decision Date: 21 May 1986
• Docket Number: No. 85-537,85-537
• Parties: STATE of Iowa, Appellee, v. Edward Harrison BOUSMAN, Appellant.
• Court: Iowa Supreme Court

Page 605

387 N.W.2d 605

STATE of Iowa, Appellee, v. Edward Harrison BOUSMAN, Appellant.

No. 85-537.

Supreme Court of Iowa.

May 21, 1986.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Elizabeth E. Ciebell, Asst. Atty. Gen., G. Wylie Pillers III, Co. Atty., and Gary J. Rolfes, Asst. Co. Atty., for appellee.

Considered by UHLENHOPP, P.J., and McGIVERIN, LARSON, SCHULTZ, and CARTER, JJ.

UHLENHOPP, Justice.

This appeal involves a challenge to the validity of a search warrant.

The police in Clinton, Iowa, received information, which we will later detail, concerning home burglaries in Clinton by Keith and Charles Bousman and James Smith, concerning a trip by some of these men to Las Vegas, Nevada, to sell the loot, and concerning another such trip to Las Vegas to be taken with another of the Bousman brothers, defendant Edward Harrison Bousman.

On December 25, 1983, sixteen carved Chinese soapstone vases were stolen from the home of Julia Voelpel in Clinton.

Clinton Police Officer David Speakman had defendant under surveillance on the evening of February 10, 1984. He saw defendant and his wife loading articles into defendant's Lincoln automobile at defendant's home. Defendant and his wife then drove to a service station and bought gasoline.

Later that evening, Officer Burton Simmons took over surveillance. He saw defendant and wife go into a tavern and speak with Charles Bousman, and later leave the tavern. Defendant and wife then drove to the home of Michael Diettrick, entered, and emerged shortly carrying a suitcase and a box, which they placed in the trunk of the Lincoln. Next they drove to their home and to a restaurant, then picked up another couple and their baggage, and drove out of town.

Officers followed defendant's car into the country, where they stopped it and detained the passengers while other officers sought a warrant to search the car.

The other officers presented an affidavit to a district judge, Pelton, J. We set out the relevant portion of the affidavit in extenso:

[O]fficers obtained information from Keith Bousman that his brother Charles Bousman and a man known as James Milton "Mushy" Smith, have been involved in many home burglaries in Clinton. Officers have also been told by Lottie McKenzie, Nee/Bousman, that her home was burglarized by Charles Bousman and James Smith. She also said that she has information that Charles Bousman and James Smith burglarized a home owned by Lee Sullens and took a safe containing coins. This same information also was given to officers by Keith Bousman. Mrs. Orville Bousman, mother of Charles, Lottie and Keith and Edward has also told officers that she has knowledge that her son Charles has taken part in many burglaries specifically the burglaries listed above and another burglary of the Julia Voelpel home in which a pistol and some valuable figurines were taken. Mrs. Voelpel is a relative of the Bousmans. Information on burglaries included two burglaries involving Don Bartels, Clinton jeweler who owns Dons Jewelry store on Main Ave. In the first burglary Bartels' home was broken into and jewelry was taken. In the second burglary Bartels' store was entered and more jewelry was taken. Information from Keith Bousman, on Lee Sullens' home burglary indicated that Charles Bousman and James Smith took most of the coins obtained from that home to Las Vegas where they were sold along with the proceeds of other burglaries. Keith Bousman has admitted to police that he broke into Don's Jewelry store on Main Ave. in Clinton and took many rings. He sold some of the rings to "Doc" Wiersema of Clinton and Fulton, Ill. The rest of the rings were sold by Keith Bousman to Charles Bousman. When authorities discovered that Keith Bousman and others had perpetrated the burglary of Dons, Keith Bousman, in keeping with a plea agreement with the Clinton County Attorney, attempted to get the rings back from Doc Wiersema. Wiersema told Keith Bousman that he had sold all the rings that he had to Charles Bousman. Keith Bousman has told police that Charles Bousman and James Smith transported stolen articles worth several thousand dollars to Las Vegas in a car and returned with a lot of money. Keith Bousman, Lottie Bousman and Mrs. Orville Bousman all say that Charles and James Smith are preparing to take another load of stolen articles to Las Vegas and that they are going to go with another of the Bousman brothers, Ed Bousman. Further that they are going to use Ed's car, a 1974 dark over white Lincoln Continental with Iowa License BLJ880. Officers tonight have been watching the Ed Bousman home and have seen Bousman and a woman loading articles into the white Continental, in the front and back seat. Officers watched the car leave the home, go to a store and then to a gas station where Ed Bousman was seen putting gas in the car and checking under the hood of the car. The car then went to another gas station where Ed Bousman got a six pack of beer and a bag of ice. Keith Bousman also told officers that Charles Bousman and James Smith had burglarized a home owned by Robert Starbuck of Clinton in which a quantity of coins were stolen. Keith Bousman further stated that some of those coins were sold by Charles Bousman to a man named Diettrick in Camanche, Iowa. Officers acting on that information contacted Diettrick and found that Charles Bousman had sold him some coins. The coins were identified by Robert Starbuck as being his and a warrant was obtained for Charles Bousman based on that information. The information from Lottie McKenzie and from Mrs. Orville Bousman was obtained by police on the present date, 021084. Keith Bousman gave police the information herein stated on 020884. Don's Jewelry store was broken into on 011084. Information came to police on 020184 that Keith Bousman was involved in that burglary. The Julia Voelpel home burglary was on 122583. The Lee Sullens home burglary was on 011084. The Robert Starbuck burglary was on 070183. The burglary of Don Bartels' home was 112883. This warrant application has been prepared on 021084.

The judge issued a warrant and endorsed his findings on it, which state in relevant part:

City has had several burglaries in past several months. Jewelry taken from businesses and homes. Keith Bousman was arrested and taken into custody and gave police several statements in past two days that his brother, Chuck Bousman, and James (Mushy) Smith were involved in Lee Sullens burglary, and coins taken were transported by car to Las Vegas by Chuck and Ed Bousman and Mushy Smith. Also, Keith was told by Chuck Bousman that he and Smith did a Starbuck burglary and coins were taken and specific gold pieces were sold to Diettrick in Camanche, Iowa. Police went to Diettrick and Diettrick gave statement acknowledging that he bought them from Chuck Bousman, and Starbuck identified the coins as these stolen from his home.

Sister Lottie McKenzie told police today that her brother Chuck Bousman and James Smith were involved in many burglaries and had taken valuables to Las Vegas and were planning another trip soon with more loot. She specifically mentioned burglaries to her home and Voelpel residence.

The information of informant appears credible because: (Magistrate to delete any not applicable) Keith Bousman, Lottie McKenzie and Mrs. Orville Bousman are likely to be credible because there is presently bad blood between them and Chuck and Ed, primarily Chuck, as they believe Chuck has victimized them too, and Chuck's refusal to cooperate with returning rings stolen by Keith from Don's Jewelry, the family believes, has resulted in Keith's probation revocation. This info is in addition to the affidavit attached hereto and was supplemented by the sworn oral testimony of Officers Hansen and Speakman.

Sworn testimony indicates this informant has given reliable information on prior occasions. Keith did as to coins sold by Chuck Bousman to Diettrick.

Informant has not been used before but credibility exists by reason of corroboration from other sources. Three persons corroborate each other and checks out as true insofar as has so far been determined.

The informant appears credible or the information appears credible for the following reasons:

Mother of Chuck, Keith and Ed Bousman, Mrs. Orville Bousman, told police last night, 2-10-84, that Chuck, Ed Bousman and Mushy Smith were involved in burglaries and sale of stolen property taken to Las Vegas. Lottie McKenzie, Mrs. Orville Bousman and Keith Bousman all told police in past two days that Chuck Bousman and Ed Bousman and Mushy Smith are planning to take a car load of stolen property to Las Vegas 2-10-84 in Ed's car, a '74 white Continental. Police have surveilled Ed Bousman's car this evening for past four hours and they made a number of stops, got gas and beer, and made at least three stops at different houses where they loaded the trunk with items. They stopped (Ed and woman with him) and talked to Chuck Bousman and picked up another couple and left town.

Rings from Don's Jewelry--and all the other items listed in the search warrant were items that have not yet been disposed of and were being taken to Las Vegas.

Police also told by Keith Bousman that Chuck and Ed Bousman and James Smith were all carrying guns.

All of the above and the oral and application are sufficient grounds for granting the application. The court finds probable cause does exist to issue the search warrant as prayed for.

The officers took the warrant to the scene of the Lincoln, and searched the vehicle. They discovered the suitcase and box, and inside those containers they found fourteen vases which Voelpel later identified as belonging to her.

The county attorney charged defendant (and his wife) with second-degree theft. Iowa Code §§ 714.1(4), 714.2(2) (1983). Defendant moved to suppress the items discovered in the search. On May 21,...