State v. Curry

• Decision Date: 22 December 1988
• Docket Number: No. 87-1237,87-1237
• Citation: 436 N.W.2d 371
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Ronald R. CURRY, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 371

436 N.W.2d 371

STATE of Iowa, Plaintiff-Appellee, v. Ronald R. CURRY, Defendant-Appellant.

No. 87-1237.

Court of Appeals of Iowa.

Dec. 22, 1988.

Raymond E. Rogers, Acting Chief Appellate Defender, and James F. Whalen, Asst. Appellate Defender, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Sheryl A. Soich, Asst. Atty. Gen., and Gary L. Sissel, Asst. County Atty., for plaintiff-appellee.

Heard by OXBERGER, C.J., and DONIELSON and SACKETT, JJ.

OXBERGER, Chief Judge.

On April 19, 1987, Easter Sunday, at about 5:45 a.m., a Davenport police lieutenant noticed Ronald Curry pushing a small bicycle which was carrying a large plastic garbage bag that appeared to contain a stereo set. The officer's prior dealings with Curry, coupled with his knowledge of several recent burglaries in the area and the unusualness of this activity at such an early hour, prompted the officer to make an investigatory stop. As Curry set the bag down, a jewelry box fell out of the bag, spilling a large number of necklaces with the price tags still attached. The spilled jewelry was identified as having been stolen from an antique store in Rock Island earlier that morning.

A jury found Curry guilty of second-degree theft and assault with intent to cause serious injury. The trial court sentenced him to two consecutive terms of imprisonment: five years on the theft count and two years for assault. He contends the trial court erred in denying his motion to suppress the fruits of an illegal investigatory stop and in admitting hearsay evidence over his objection. Our scope of review is for the correction of errors at law except, however, when constitutional issues are raised, our review is of the totality of the circumstances. We reverse and remand for a new trial.

I. Investigatory Stop

Curry contends the investigatory stop was unsupported by reasonable cause and the trial court therefore erred in overruling his motion to suppress evidence discovered as the fruits of that stop. He urges that the officer stopped him merely to satisfy a suspicion.

The police officer testified that at 5:53 a.m. on Easter Sunday he observed the defendant pushing a small BMX-type bicycle. The defendant was using the bicycle to carry a large garbage sack which appeared, through various rips, to contain a stereo. The police officer further testified that the defendant matched the description of a suspect that the police were attempting to locate in reference to several burglaries in the area within the last month. In addition, the officer recognized the defendant as someone who had been involved with a prior burglary.

The fourth amendment requires a showing of "reasonable cause" to justify the stopping of a vehicle for investigatory purposes. When constitutional rights are at issue, our review is of the totality of the circumstances. State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). "When a stop is challenged on the basis that reasonable cause did not exist, the State must show that the stopping officer had 'specific and articulable cause to support a reasonable belief that criminal activity may have occurred.' " State v. Lamp, 322 N.W.2d at 51 (quoting State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980) (emphasis added in Lamp ). Reasonable cause exists when an officer observes unusual conduct leading the officer to conclude that criminal activity may be afoot. State v. Donnell, 239 N.W.2d 575, 577 (Iowa 1976).

We find the officer's observations coupled with his prior knowledge of defendant's criminal activity and the unusually early hour to indicate to him that criminal activity may be afoot. Therefore, we find reasonable cause existed to stop the defendant.

II. Hearsay

Defendant contends the trial court erred in admitting into evidence, over his hearsay objection, a field interview card from the Rock Island police department. This card revealed that at approximately 3:50 on the morning of April 19, 1987, a Rock Island police officer stopped a black male approximately one-and-one-half blocks from Heart Antiques, the location of the burglary. The suspect gave the name Ronald Curry, was riding a BMX bicycle, and wearing a black cap, black pants, and a green sweater. The trial court admonished the jury that the information on the card "is not to be taken as true, only to be taken as having been reported as part of the investigation procedure of the City of Rock Island, Illinois." Curry contends this limiting instruction was inadequate to cure the prejudicial nature of the evidence.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R.Evid. 801(c). Hearsay is generally not admissible. Iowa R.Evid. 802.

In order to determine whether this evidence is hearsay we must determine the "real" purpose for which this evidence was offered. State v. Hollins, 397 N.W.2d 701, 706 (Iowa 1986). The State asserts the evidence was offered for the purpose of "completing the picture" of the investigatory stages of the offense. Our review of the record would indicate the information was offered to place the defendant within one-and-one-half blocks of the antique store at approximately the time it was...