State v. Drake, No. 56508

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard before MOORE; LeGRAND
Citation224 N.W.2d 476
PartiesSTATE of Iowa, Appellee, v. Zelpha Mae DRAKE, a/k/a Zelpha Montgomery, Zelpha Durham and Zelpha Zee, Appellant.
Decision Date18 December 1974
Docket NumberNo. 56508

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.

Page 477

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

Page 478

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...

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37 practice notes
  • State v. King, No. 59140
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1977
    ...v. Wright, Iowa, 244 N.W.2d 319; State v. Rockhold, Iowa, 243 N.W.2d 846; State v. Nelson, Iowa, 234 N.W.2d 368; State v. Drake, Iowa, 224 N.W.2d 476." See also State v. Moehlis, 250 N.W.2d 42, 45 (Iowa 1977); State v. Wright, 244 N.W.2d 319, 320-321 (Iowa 1976); State v. Easter, 241 N.W.2d......
  • State v. Hall, No. 57467
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1975
    ...is made in the case of the private citizen who gives police confidential information. This matter was discussed in State v. Drake, 224 N.W.2d 476, 478--479 (Iowa 1974) where we 'When considering the sufficiency of probable cause based on information supplied by an informant, it is important......
  • State v. Bracy, 19-1052
    • United States
    • United States State Supreme Court of Iowa
    • March 18, 2022
    ...‘by the very nature of the circumstances under which the incriminating information became known,’ " id. at 200 (quoting State v. Drake , 224 N.W.2d 476, 478 (Iowa 1974) ), here, the warrant application did not provide any circumstances demonstrating how the incriminating information became ......
  • State v. Setzler, No. 94-2497
    • United States
    • Court of Appeal of Florida (US)
    • October 24, 1995
    ...(Del.1980); Starr v. State, 159 Ga.App. 386, 283 S.E.2d 630 (1981); Clifford v. State, 474 N.E.2d 963, 969 (Ind.1985); State v. Drake, 224 N.W.2d 476 (Iowa 1974); State v. Gilreath, 215 Neb. 466, 339 N.W.2d 288 (1983); Page 349 State v. Haron, 220 N.W.2d 829 (S.D.1974); Allison v. State, 62......
  • Request a trial to view additional results
37 cases
  • State v. King, No. 59140
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1977
    ...v. Wright, Iowa, 244 N.W.2d 319; State v. Rockhold, Iowa, 243 N.W.2d 846; State v. Nelson, Iowa, 234 N.W.2d 368; State v. Drake, Iowa, 224 N.W.2d 476." See also State v. Moehlis, 250 N.W.2d 42, 45 (Iowa 1977); State v. Wright, 244 N.W.2d 319, 320-321 (Iowa 1976); State v. Easter, 241 N......
  • State v. Hall, No. 57467
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1975
    ...is made in the case of the private citizen who gives police confidential information. This matter was discussed in State v. Drake, 224 N.W.2d 476, 478--479 (Iowa 1974) where we 'When considering the sufficiency of probable cause based on information supplied by an informant, it is important......
  • State v. Bracy, 19-1052
    • United States
    • United States State Supreme Court of Iowa
    • March 18, 2022
    ...the very nature of the circumstances under which the incriminating information became known,’ " id. at 200 (quoting State v. Drake , 224 N.W.2d 476, 478 (Iowa 1974) ), here, the warrant application did not provide any circumstances demonstrating how the incriminating information became......
  • State v. Setzler, No. 94-2497
    • United States
    • Court of Appeal of Florida (US)
    • October 24, 1995
    ...(Del.1980); Starr v. State, 159 Ga.App. 386, 283 S.E.2d 630 (1981); Clifford v. State, 474 N.E.2d 963, 969 (Ind.1985); State v. Drake, 224 N.W.2d 476 (Iowa 1974); State v. Gilreath, 215 Neb. 466, 339 N.W.2d 288 (1983); Page 349 State v. Haron, 220 N.W.2d 829 (S.D.1974); Allison v. State, 62......
  • Request a trial to view additional results

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