State v. Donnell, 58328

• Citation: 239 N.W.2d 575
• Decision Date: 17 March 1976
• Docket Number: No. 58328,58328
• Parties: STATE of Iowa, Appellee, v. Jerry Dee DONNELL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 575

239 N.W.2d 575

STATE of Iowa, Appellee, v. Jerry Dee DONNELL, Appellant.

No. 58328.

Supreme Court of Iowa.

March 17, 1976.

Robert S. Swanson, of Winston, Schroeder & Reuber, Mason City, for appellant.

Richard C. Turner, Atty. Gen., William D. Scherle, Asst. Atty. Gen., and Clayton L. Wornson, County Atty., for appellee.

Considered en banc.

REYNOLDSON, Justice.

Defendant, appealing from his conviction for violating § 712.1, The Code (receiving stolen property) raises issues relating to an investigatory stop of a van in which he was a passenger, and speedy trial, § 795.2, The Code.

Evidence was introduced at a pre-trial suppression hearing and upon trial of this case which would support the following factual statement.

On the early morning of November 22, 1974 defendant Donnell was the sole passenger in a red van driven by his roommate Uglem. This vehicle had been seen cruising very slowly through three Clear Lake residential areas several blocks apart before its driver was halted by a city patrolman at 2:00 A.M.

The evidence disclosed Clear Lake is a city with many vacant homes in the winter months. Over the prior year residential break-ins had totaled 'almost in the hundreds.' Large quantities of furniture and other bulky items had been stolen and apparently carried away by van or truck.

Officer Nuehring made the decision to halt the van. He was motivated by the circumstances above described, not by any traffic violation, mechanical defect or routine purpose to invoke § 321.492, The Code (permitting stops for license check and other specified reasons). Nuehring made a radio request for back-up assistance from officer Garlock.

Nuehring approached the driver's side of the van. Garlock walked up to the window on the passenger side and recognized the defendant. The light of Garlock's flashlight disclosed what appeared to be a 'roach' (marijuana cigarette butt) on the floor of the van at defendant's feet. This roach was obviously hand-rolled in distinctive red cigarette paper, with one end twisted in a typical fashion and the other end burned. Garlock asked defendant to step out of the car. He picked up the roach, confirmed it had a characteristic marijuana odor, and then retrieved another from the open ashtray.

Defendant was searched and found to be carrying 51 'white cross' amphetamine tablets. He resisted being handcuffed and the roaches which were in Garlock's hand were destroyed in the resulting scuffle. At the police station booking search credit cards stolen from a burglarized farm home were found in defendant's wallet. This led to a warrant search of his apartment where household items also stolen from the farm house were seized. This personalty formed the basis for defendant's ultimate conviction.

I. Defendant filed a motion to suppress any evidence removed from the van, his person, his wallet or his apartment, asserting there was no probable cause to make an investigatory stop of the van in which he was riding. Defendant thus identifies the fighting issue, for it this stop was justified then Garlock was in a place he had a right to be when he saw and seized the roach which triggered all subsequent events. See State v. Cooley, 229 N.W.2d 755, 760 (Iowa 1975) and citations.

In Cooley, supra, we adopted the principle articulated in Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906--907 (1968), where the court noted 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' Circumstances for an investigatory stop exist 'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experiences that criminal activity may be afoot * * *.' Id., 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for a probable cause arrest to simply shrug his shoulders and allow a crime to occur. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972). Nor does that amendment ordinarily prohibit, as an illegal 'search', a plain view observation made by a police officer from a position where the officer is entitled to be. United States v. Johnson, 506 F.2d 674, 675 (8 Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1579, 43 L.Ed.2d 784 (1975).

A vehicle investigatory stop complying with the Terry standards may include observing anything to be seen from outside the vehicle. United States v. Hernandez, 486 F.2d 614, 616 (7 Cir. 1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974). The 'plain view' doctrine is applicable even though the contents of the vehicle may not have been visible without the use of a flashlight or other artificial illumination. United States v. Johnson, supra, 506 F.2d at 676.

In determining whether the court erred in overruling the motion to suppress we may consider not only the evidence adduced in the motion to suppress but the later trial testimony. United States v. Upthegrove, 504 F.2d 682, 684, n. 4 (6 Cir. 1974); see DiBella v. United States, 369 U.S. 121, 129, 82 S.Ct. 654, 659, 7 L.Ed.2d 614, 620 (1962); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925).

Nor does our examination of reasonable cause for an investigatory stop end with the officer's subjective reasons. The test is not the policeman's subjective theory, but whether the record discloses articulable objective facts were available to the officer to justify the stop. United States v. Vital-Padilla, 500 F.2d 641, 644 (9 Cir. 1974); White v. United States, 448 F.2d 250, 252 (8 Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); United States v. Harflinger, 436 F.2d 928, 933 (8 Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971); see Terry, supra, 392 U.S. at 21--22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; Cooley, supra, 229 N.W.2d at 759 ('(W)e must objectively determine whether stopping of said vehicle * * * was reasonable under the circumstances').

Applying the above principles, the following information was available to officers involved in this investigatory stop:

(A) This van was seen in a small Iowa city.

(B) The city policeman did not recognize the van, the operator, or the passenger prior to the stop.

(C) Clear Lake had been subjected to a crime wave of home burglaries.

(D) Many Clear Lake homes were vacant during the winter months.

(E) The van was being driven very slowly.

(F) The officers observed it in three separate residential areas.

(G) This occurred at 2:00 A.M., a time when most persons in a residential area would be asleep.

(H) The type of vehicle was peculiarly adapted to concealed transport of bulky household furniture and equipment of the type being stolen.

We have carefully compared the circumstances disclosed above with those in United States v. Harflinger, supra, and Carpenter v. Sigler, 419 F.2d 169 (8 Cir. 1969) (stops held valid) and with those in United States v. Nicholas, 448 F.2d 622 (8 Cir. 1971), and Cooley, supra (stops held unjustified). Although the question is close, we find the facts Sub judice most analogous to those in Carpenter v. Sigler, supra. We hold this investigatory stop was based upon reasonable grounds.

Trial court was right in overruling the motion to suppress.

II. Defendant next asserts we must reverse because he was not provided a trial within the time provided in § 795.2, an issue he raised below by motion to dismiss.

The county attorney's information charging defendant with this crime was filed February 5, 1975. February 18, 1975, a trial assignment was tentatively made, setting trial for any of the weeks of March 24, April 1 or April 7. February 24, 1975, defendant filed the motion to suppress referred to in division I. Hearing on this motion was had March 6, 1975. An extensive eight-page ruling was filed April 1, 1975, a Tuesday.

The parties agree the first court day following expiration of the § 795.2 60-day period was Monday, April 7. The following day, April 8 defendant filed his motion to dismiss. This motion was heard and overruled on April 11. Defendant's trial was scheduled for, and commenced, April 21.

In these dismissal hearings at the trial court level the burden is on the State to show good cause for delay. In State v. Shockey, 214 N.W.2d 146, 150 (Iowa 1974) we said factors to be considered were those delineated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): length of delay, reason for the delay, defendant's assertion of his speedy trial right, and prejudice to defendan resulting from the delay.

At this level our review of the ruling on this issue is not De novo. To secure a reversal defendant must show trial court abused its limited discretion. State v. Grady, 231 N.W.2d 869, 872 (Iowa 1975); State v. Albertsen, 228 N.W.2d 94, 98 (Iowa 1975).

Turning to the four above criteria in weighing trial court's action, we note similar delays, although short, have been rejected as furnishing 'good cause' where unaccompanied by reasonable excuse. See State v. Sassman, 226 N.W.2d 808, 809 (Iowa 1975); State v. Hines, 225 N.W.2d 156, 159 (Iowa 1975); State v. Nelson, 222 N.W.2d 445, 449 (Iowa 1974). Still, the fact the delay beyond the § 795.2 period incurred here is not lengthy gives it less weight in the ultimate determination to be made.

Delay attributable to defendant may constitute statutory good cause preventing the State from carrying out its obligation to bring him to trial. State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975). In this case the defendant waited nineteen days after the charge was filed to make a motion to suppress. His appellate brief points out the evidentiary hearing on the motion consumed only two hours, following which trial court took 26 days to file...