State v. Dwinells
| Decision Date | 15 November 1966 |
| Docket Number | No. 51918,51918 |
| Citation | 146 N.W.2d 231,259 Iowa 945 |
| Parties | STATE of Iowa, Appellee, v. Robert Eugene DWINELLS, Appellant. |
| Court | Iowa Supreme Court |
Ben E. Kubby, Des Moines, for appellant.
Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., Ray Fenton, County Atty., and Claude Freeman, Asst. County Atty., Des Moines, for appellee.
Defendant and Owen James Ashland were indicted by the Polk County Grand Jury for robbery with aggravation, Code, 1966, sections 711.1 and 711.2. After separate jury trial, defendant was found guilty. He appeals.
The State's evidence showed that Warren Stump, a special agent for the State Bureau of Criminal Investigation was in the vicinity of S.W. 9th Street and Army Post Road in the City of Des Moines at about 11:00 P.M. February 17, 1965. He noticed a car behind him turn off its lights and park. He went around a couple of blocks, saw the car parked on S.W. 10th and West Streets had Minnesota license plates, then drove around a few more blocks and stopped at an oil station at 1010 Army Post Road where the attendant told him he had just been robbed. He contacted the State Police Radio and gave them a description of the automobile as a two tone Oldsmobile. He did not know the license numbers.
Thus alerted the policeman at Indianola, some 17 miles south of Des Moines, together with a highway patrolman and other police officers proceeded to the north edge of that city to watch for a red and white Oldsmobile with Minnesota license plates. When a car fitting that description came along they followed it to the home of Lt. Dan Foster of the Iowa Highway Patrol. Defendant, the driver of the car, went up on the porch. About that time other police vehicles came up. Defendant and his companion were held at gun point and serached. The search of both the person of the defendant and his car was made by Lt. Foster who had come out of the house. Lt. Foster testified that at this time he told defendant he was a suspect in a robbery and they were being detained to be checked out. A gun box was found in the car. Lt. Foster asked defendant where the gun was. Defendant told him it was in the box. Lt. Foster then went back to the car and saw a gun butt sticking up from behind the kickplate or cowl which was behind the glove compartment. Tucked in beside the gun was a roll of 24 $1. bills. The search also turned up a bank money sack containing $54.65 in change from under the dashboard (later identified by the gas station attendant as the one taken from his that night), and a number of .22 caliber cartridges, both long and short, in the glove compartment.
The car was not an Oldsmobile but a '55 Buick, it was variously described as two tone and three tone, black top, red body and white at the bottom. The oil station attendant identified Ashland, defendant's companion, as the person who robbed him and stated that Ashland was alone; the attendant saw no one else.
Defendant took the stand and said that he met his companion about three weeks before in Minneapolis, that Ashland left him for some time earlier in the evening and took the car, that he knew nothing of the gun being out of the box or the money and money bag in the car, that he bought the gun (clearly an unusual type) for his brother, a gun collector, that they were going to Kansas City when they inquired as to proper roads to get there. They were told where the highway patrolman lived and were at his home to make inquiry as to the way to Kansas City when apprehended.
These contending positions were submitted to the jury who found defendant guilty. He assigns for errors for reversal which raise two principal contentions.
I. The first concerns the admission of evidence as the result of a claimed illegal search and seizure. No motion to suppress evidence was made. Three officers were allowed to testify in detail without objection concerning both the search of defendant and his car. The fruits of this search; to-wit, the .22 caliber revolver, the shells, the money and the money bag were all offered in evidence and received without objection. During this testimony by cross examination defense counsel emphasized that at the arrest and search defendant cooperated with the officers and repeatedly professed ignorance and innocence of any wrong doing.
It was not until the cross examination of Lt. Foster that defendant sought to raise the issue of unconstitutional search and seizure. Defense counsel sought to ask Lt. Foster if he had a search warrant. He was stopped by an objection. It was at this point, in the absence of the jury that defense counsel first charged that there had been an illegal search and seizure and the prosecution was attempting to use the fruits of an illegal search. The court refused to allow defendant to inject the question of a search warrant into the case ruling that it was a legal question, not a fact question; thus sustaining the State's position that the matter was untimely raised.
After the constitutional issue was raised Lt. Foster testified that after telling defendant why they were stopped he asked defendant's permission to search the car and Dwinells told him to go ahead and search it, that he, defendant, had no objection to their stopping them or interrogating them; also that Dwinells was very cooperative throughout the entire matter.
At the close of the State's case, defendant for the first time moved to withdraw the evidence secured by the search from the jury's consideration.
State asserts that there was no error in allowing evidence turned up by reason of the search to stand for three reasons: 1. Failure to move to suppress the evidence before trial and failure to object to similar evidence by two prior witnesses during trial constituted a waiver of any right to question the search and seizure or use of the fruits thereof. 2. The search and seizure was incident to a lawful arrest and therefore legal, and 3. There has been freely given consent to the search and seizure.
It is probable that the facts here would justify a finding that the search was incident to a lawful arrest. State v. Rye, Iowa, 145 N.W.2d 608 (opinion filed October 18, 1966), State v. Raymond, Iowa, 142 N.W.2d 444 and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. The assertion here that consent to search was freely given is more tenuous. See State v. Shephard, 255 Iowa 1218, 124 N.W.2d 712, and cases cited, where the effect of holding a gun on a person at the time the claimed consent is obtained is noted as a factor. We give no further attention to either of these two contentions...
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...258 Iowa 924, 931--932, 140 N.W.2d 886, 891. To like effect is 21 Am.Jur.2d, Crim.Law, section 234. See also State v. Dwinells, 259 Iowa 945, 950, 146 N.W.2d 231, 235; 23 C.J.S. Criminal Law § 961, page Also, a fair trial does not necessarily mean an absolutely perfect one. State v. Haffa, ......
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...414 F.2d 50, 56, citing as authority Fay v. Noia, 372 U.S. 391, 438--439, 83 S.Ct. 822, 9 L.Ed.2d 837. See also State v. Dwinella, 259 Iowa 945, 950, 146 N.W.2d 231, 234, and authorities there Defendant was entitled to have a fair trial by an impartial jury, and the State has established pr......
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...his vehicle for weapons or for the fruits of the crime. State v. Raymond, 258 Iowa 1339, 1346, 142 N.W.2d 444, 447; State v. Dwinells, 259 Iowa 945, 949, 146 N.W.2d 231, 234. The issue here presented, then, is whether at the moment of the arrest the officers had probable cause to make it, w......
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...S.Ct. 683, 4 L.Ed.2d 668, 686. We have examined the cases cited by appellant, but find none of them applicable here. In State v. Dwinells, 259 Iowa 945, 146 N.W.2d 231, evidence of the search was admitted at trial without objection, and we held the right later to assert illegal search and s......