State v. Davis

• Decision Date: 16 April 1975
• Docket Number: No. 57395,57395
• Citation: 228 N.W.2d 67
• Parties: STATE of Iowa, Appellee, v. Jon Charles DAVIS, Appellant.
• Court: Iowa Supreme Court

Page 67

228 N.W.2d 67

STATE of Iowa, Appellee, v. Jon Charles DAVIS, Appellant.

No. 57395.

Supreme Court of Iowa.

April 16, 1975.

Brierly, McCall & Girdner, Newton, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., and Kenneth L. Whitehead, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

Defendant was charged with possession of a controlled substance, marijuana, in violation of § 204.401(3), The Code. A jury trial resulted in a guilty verdict. He appeals from a judgment fining him $500. We reverse and remand for a new trial.

At about 2:00 A.M. on March 2, 1974, officer Booth of the Newton, Iowa, police department observed defendant and several other persons proceeding noisily out of an alley and into the Green Gables Apartments. He recognized one of the young men as a person who had previously been arrested on a drug charge, but acquitted. A short time later he heard noise from one of the apartments. Booth then reported to officers Schooley and Lyman he thought a 'pot party' was in progress.

Following some interrupting and unrelated calls, the three officers converged on the apartment building. It was determined the loud music was coming from an apartment at the east end of the building.

At the front of the apartment was a 'bay window' consisting of three separate narrow windows. The drapes were pulled at least across the two outer windows and vision through the middle window was obscured by a shade pulled to within six to eight inches of the window sill. The defense evidence positioned a stereo and television on a ledge inside this window, approximately six inches apart.

In any event, the three policemen testified that by peering through this opening they could observe five persons, including defendant, at a dining room table in the far end of the apartment. The five were passing around and smoking a cigarette held by a clip on the end of a long silver-colored rod. The evidence disclosed this table was approximately 24 feet from the bay window. The officers asserted their view was from the apartment parking lot some six to eight feet outside the window. A defense witness who had driven by at the time testified they were 'a foot or two' from the window.

Meanwhile, officer Booth questioned an early-rising milkman and a wide-awake apartment neighbor as to whether they were bothered by the noise from the apartment. No complaints were made by these persons. Officer Schooley testified loud music could be heard in the parking lot but no loud voices and no 'rousing party.'

After a fourth officer arrived, Booth and he were stationed at the back door of the apartment and officers Schooley and Lyman approached the front door. While Booth testified his specific intent in first approaching the apartment was to tell the occupants to keep the noise down, no officer testified what the actual intent was in going to the door after the observations through the window.

Schooley and Lyman testified they smelled the odor of marijuana through the front door and storm door before knocking. After they had knocked twice, the door was at least partially opened by Steven Snook, a co-tenant of the three-story apartment who had just come down from the second floor. Snook testified he opened the door a small distance to see who it was and the officers pushed him aside and entered the apartment. The officers claimed Snook opened the door and they went on in. No one asserted they were invited in or then asked permission to enter or search the premises.

Shooley walked through the apartment to the dining room table and picked up the cigarette holder before opening the back door for the policemen guarding that exit. As he returned to the dining room area he reached into a partially-opened drawer (Snook testified it was closed) and removed a whiskey bottle containing cigarette butts we thought were marijuana. He turned this over to officer Lyman who ordered 'No more searching until we get a search warrant.'

Those persons who had been seated at the table were then arrested. Subsequently a search warrant was procured and a thorough search of the premises ensued. Other property seized was never offered in evidence and does not concern us here.

I. Defendant argues the search and seizure which produced the marijuana-containing whiskey bottle violated the United States Constitution, Amendment 4, and the Iowa Constitution, Article I, Section 8. The issue was raised below by pre-trial motion to suppress. The error, if any, was thus preserved. State v. Untiedt, 224 N.W.2d 1, 3 (Iowa 1974).

The State asserts the warrantless search falls within the 'plain view' exception, arguing that evidence in plain view of an officer in a place where he has a right to be is admissible, is not the result of a search, and does not fall within the constitutional limitations against unreasonable searches and seizures.

The broad principles applicable in search and seizure cases are plain enough.

In State v. Osborn, 200 N.W.2d 798, 804 (Iowa 1972), we summarized the thrust of federal interpretive decisions thus,

'The basic purpose of Amendment 4 is 'to safeguard the privacy and security of individuals' rather than property. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935; Accord, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782, 790. 'For the Fourth Amendment protects people, not places.' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 581.'

The first overview courts employ to determine whether a search and seizure is unreasonable is whether the thing done, in the sum of its form, scope, nature, incidents and effect, impresses as being fundamentally unfair or unreasonable in the specific situation when the immediate end sought is considered against the private right affected. State v. Hagen, 258 Iowa 196, 204, 137 N.W.2d 895, 899 (1965), and citations; see State v. Taylor, 260 Iowa 634, 642, 144 N.W.2d 289, 294 (1966). The problems which arise, and which troubled the trial court in this case, in no small measure result from attempts by appellate courts to distill the above concept into specific rules which will stand the test of rational applicability in the diverse situations faced by law enforcement officers and trial courts.

In State v. Ahern, 227 N.W.2d 164, 165 (Iowa 1975) we said:

'While the fourth amendment prohibits only unreasonable searches and seizures, warrantless searches and seizures are Per se unreasonable unless they come within a few 'jealously and carefully drawn' exceptions. The burden is upon those seeking to apply the exceptions to prove their applicability. Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); State v. Shea, 218 N.W.2d 610, 613 (Iowa 1974); State v. Osborn, 200 N.W.2d 798, 802 (Iowa 1972); State v. King, 191 N.W.2d 650, 654 (Iowa 1971), cert. denied 406 U.S. 908, 92 S.Ct. 1617, 31 L.Ed.2d 819 (1972).'

In essence, the State claims one of the 'exceptions' permitting a warrantless search is the 'plain view doctrine.' Succinctly stated with more precision and accuracy than achieved by the State, this doctrine is simply that it is constitutionally reasonable for authorities to seize objects come upon by inadvertence during a valid prior intrusion. Brown v. State, 15 Md.App. 584, 292 A.2d 762, 763 (1972). In Iowa recognition was accorded the concept at least as early as State v. Brant, 260 Iowa 758, 763, 150 N.W.2d 621, 625 (1967); thereafter in State v. Peterson, 261 Iowa 669, 674, 155 N.W.2d 412, 415 (1968); State v. Smith, 178 N.W.2d 329, 332 (Iowa 1970); State v. King, 191 N.W.2d 650, 655 (Iowa 1971), cert. denied 406 U.S. 908, 92 S.Ct. 1617, 31 L.Ed.2d 819 (1972); State v. Jackson, 210 N.W.2d 537, 540 (Iowa 1973), and recently in State v. Merchandise Seized, 225 N.W.2d 921, 925 (Iowa 1975). On the federal level, the plain view doctrine was subjected to the most complete analytical dissection in Coolidge v. New Hampshire, supra.

Under the analysis in Collidge there are three prerequisites to a valid plain view seizure.

First, there must be a prior justification for the intrusion into an otherwise constitutionally protected area. We have consistently required this essential. State v. Smith, supra at 332--333; State v. Brant, supra, 260 Iowa at 763, 150 N.W.2d at 625. The Collidge rationale makes it clear the plain view doctrine deals only with 'post-intrusion' seizure of evidence:

'What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.

'The 'plain view' doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as 'hot pursuit' or search incident to a lawful arrest, or by an extraneous valid reason for the officer's presence. * * *

'Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous--to the evidence or to the police themselves--to require them to ignore it until they have obtained a warrant particularly describing it.'--Coolidge v. New Hampshire, 403 U.S. at 466--468, 91 S.Ct. at 2023--2039, 29 L.Ed.2d at 583--584.

The second Collidge prerequisite to a valid plain view seizure is that the incriminating nature of the object seized must be 'immediately apparent.' 403 U.S. at 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583. This essential is intended to prevent warrantless search from object to object until incriminating matter is at last found. Id. This facet of plain view has not been presented to this court,...