State v. Drake, 56508

• Decision Date: 18 December 1974
• Docket Number: No. 56508,56508
• Citation: 224 N.W.2d 476
• Parties: STATE of Iowa, Appellee, v. Zelpha Mae DRAKE, a/k/a Zelpha Montgomery, Zelpha Durham and Zelpha Zee, Appellant.
• Court: Iowa Supreme Court

Page 476

224 N.W.2d 476

STATE of Iowa, Appellee, v. Zelpha Mae DRAKE, a/k/a Zelpha Montgomery, Zelpha Durham and Zelpha Zee, Appellant.

No. 56508.

Supreme Court of Iowa.

Dec. 18, 1974.

Raymond Rosenberg, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and Ray A. Fenton, Polk County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, REES, HARRIS and McCORMICK, JJ.

LeGRAND, Justice.

On this appeal, defendant says she was wrongfully convicted of receiving and concealing stolen property in violation of § 712.1, The Code, because the principal evidence against her was illegally seized under a search warrant issued without probable cause. She also insists her sentence was illegally imposed and should be set aside. We rule against defendant on the first issue and for her on the second. Accordingly, the case is reversed and remanded for resentencing.

I. Defendant was renting residential property which had been put up for sale. While a prospective purchaser was being shown the house, he observed racks of clothing in the basement, all bearing original store labels and price tags. Later he advised the authorities of this unusual fact, and they obtained a search warrant on the basis of that information.

A search conducted pursuant to this warrant disclosed the presence of more than 100 items of merchandise from Younker's and Feldmann's, all of which were later identified as having been stolen from those establishments. It is this evidence defendant seeks to suppress.

The warrant was obtained upon a police officer's affidavit, which contained the following statements:

'Facts told to me by an informant: Informant was in this residence at 3626 Davidson Road and he observed racks of clothing with Feldmann's and Younker's labels and price tags on same.

'Informant was in this residence with an agent from Iowa Realty Company for the purpose of inspecting property with intentions to buy. This man is by profession a buyer and distributor for Carters Company, Neidam Heights, Massachusetts. Residence: 4309 Valdeze Drive, Des Moines, Iowa.'

Six items of clothing were specifically described; the remainder were designated only as racks of clothing from the two stores already mentioned. There was an additional statement endorsed on the application by the magistrate as having been made by the officer when the warrant issued. However, we disregard this, as the State concedes it was merely the officer's conclusion and could contribute nothing to a finding of probable cause. The validity of the warrant must rest on the recitations in the affidavit heretofore set out.

We repeat once again the underlying principles by which a search warrant must be tested. It may be issued only on probable cause, which has been defined as such cause which would lead a reasonably prudent man to conclude a crime had been commtted. The information must be under oath and only the facts presented to the magistrate when the warrant issued may be considered on review. In addition the magistrate must make his own independent determination of probable cause from this information. State v. Boer, 224 N.W.2d 217 (Iowa filed December 18, 1974); State v. Lynch, 197 N.W.2d 186, 191 (Iowa 1972); State v. Jensen, 189 N.W.2d 919, 925 (1971); State v. Salazar, 174 N.W.2d 453, 455 (Iowa 1970); State v. Spier, 173 N.W.2d 854, 858, 859 (Iowa 1970).

When considering the sufficiency of probable cause based on information supplied by an informant, it is important to distinguish the police tipster, who acts for money, leniency, or some other selfish purpose, from the citizen informer, whose only motive is to help law officers in the suppression of crime.

In the former the information furnished is less likely to be truthful, and it is therefore subjected to much closer scrutiny as to the surrounding circumstances reflecting on its credibility. As part of this scrutiny, the informant's prior reliability must ordinarily be demonstrated.

In the latter the rule of prior reliability is considerably relaxed for several reasons. In the first place the citizen informer has rarely had any earlier experience in reporting suspected criminal activity. Furthermore, unlike the professional informant, he is without motive to exaggerate, falsify or distort the facts to serve his own ends.

Reliability still must be shown, but it may appear by the very nature of the circumstances under which the incriminating information became known. Any other rule would lead to the totally unacceptable result that public-spirited citizens interested only in law enforcement could seldom furnish information sufficient to establish probable cause.

Among the cases which hold this view are State v. Perry (Mo.1973), 499 S.W.2d 473, 475 (citizen-informant may reasonably be deemed to be reliable); State v. Lindquist (1973), 295 Minn. 398, 205 N.W.2d 333, 335 (first-time private citizen informer not involved in criminal event he reports should be presumed to be telling the truth); State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836, 843 (1971) (element of prior reliability should not be adhered to in case of private citizen informant); People v. Zimnicki, 29 Cal.App.3d 577, 105 Cal.Rptr. 614, 615--617 (1972) (citizen-informer rule requires some measure of either credibility or corroboration but not to same extent as in case of other informant); cf. State v. Lynch, supra, 197 N.W.2d at 192 (statements made to airline stewardess).

Although not directly in point, the discussion in United States v. Unger (7th Cir. 1972), 469 F.2d 1283, 1286, 1287 and McCreary v. Sigler (8th Cir. 1969), 406 F.2d 1264, 1268, 1269 further supports such a conclusion.

Applying the reasoning of the foregoing cases to the facts now before us, we believe the search warrant was properly issued. The informant related what he himself had seen, not rumor, hearsay, or surmise. While his name was not disclosed to the magistrate, there was considerable information given concerning his employment, his place of residence and the plausible reasons for his presence in the house. All of this lent credibility to him and the facts he related. See State v. Perry, supra, 499 S.W.2d at 476.

Defendant also argues that, conceding the reliability of the informant, the facts and circumstances related are insufficient to constitute probable cause. He says, quite correctly,...