State v. Easter

• Decision Date: 19 May 1976
• Docket Number: No. 58324,58324
• Citation: State v. Easter, 241 N.W.2d 885 (Iowa 1976)
• Parties: STATE of Iowa, Appellee, v. Paul Scott EASTER and William David Kerns, Appellants.
• Court: Iowa Supreme Court

Page 885

241 N.W.2d 885

STATE of Iowa, Appellee, v.Paul Scott EASTER and William David Kerns, Appellants.

No. 58324.

Supreme Court of Iowa.

May 19, 1976.

John C. Wellman, Des Moines, for appellants.

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

Heard by REYNOLDSON, Acting C.J., and MASON, RAWLINGS, REES and HARRIS, JJ.

REYNOLDSON, Acting Chief Justice.

Defendant were convicted following a joint trial for possession of a controlled substance with intent to deliver in violation of § 204.401(1), The Code, 1973.In this consolidated appeal, they challenge the validity of the search warrant under which the controlled substance was seized.

The warrant was issued on the application of Kenneth Arduser, assistant director, narcotics division, Iowa Department of Public Safety.In a sworn information for the warrant, Arduser stated the following facts led him to believe there was probable cause for issuance of the warrant:

'That at approximately 11:30 am 1/31/74 I received information from Sgt. Werner Wolff who identified himself as a Sergeant with the Tucson, AZ, Metropolitan Narcotics Squad.Sgt. Wolff stated two subjects using the names S. Kerns and W. Kerns left the Tucson, AZ, area and were proceeding to Denver, CO. Sgt. Wolff stated the two subjects would be leaving Denver, CO, for Des Moines, IA, and would be flying to Des Moines, IA, via United Airlines Flight 376. Sgt. Wolff stated S. Kerns and W. Kerns would be arriving in Des Moines, IA, via United Airlines Flight 376 at 2:54 pm 1/31/74. Sgt. Wolff stated S. Kerns and W. Kerns had in their possession three suitcases: (1) large blue suitcase bearing United Airlines claim check 1181--84, (2) large green suitcase bearing United Airlines claim check 1181--85, (3) blue suitcase bearing United Airlines claim check 1181--83. Sgt. Wolff stated two of the suitcases, 1181--84 and 1181--85, each contained approximately twenty packages of marihuana.Sgt. Wolff stated one of the subjects is described as WMA, 5 9 tall, slender build, 150 pounds, approximately described as a WMA, 6 tall, 170 pounds, wearing a dark colored suit.Sgt. Wolff went on to state the other subject was described as a WMA, ' tall, 170 pounds, with light brown hair and a mustache.'

Arduser's affidavit also stated Sergeant Wolff obtained the information from a confidential informant who had proven reliable in three drug transportation cases and ten other drug cases.

The affidavit further disclosed that before making application for a search warrant, Arduser verified Wolff's identity as a member of the Tucson, Arizona Narcotics Squad, and confirmed through United Airlines that S. Kerns and W. Kerns had reservations on flight 376 arriving in Des Moines at 2:54 p.m. on January 31, 1974.

After obtaining the search warrant, Arduser and several other police officers went to the Des Moines airport to maintain surveillance.At approximately 3:10 p.m. they saw defendants Easter and Kerns, who met the description given by Sergeant Wolff, accompanied by a third person.Defendants proceeded to the luggage claim area, where Easter picked up a blue suitcase and Kerns picked up two additional suitcases.Defendant Easter went outside and placed his suitcase in a station wagon parked outside the door.Defendant Kerns, after rejoining Easter and the third party, began to load his suitcases into the station wagon.Officers then approached the three individuals, read them the search warrant and their Miranda rights, and searched the suitcases.They found several packages of material later identified as marijuana.

Defendants filed a pretrial motion to suppress asserting, Inter alia, the affidavit submitted in support of the search warrant application was insufficient to support an independent finding of probable cause by the issuing judge.

Trial court overruled defendants' motion to suppress, relying in part on Arduser's suppression hearing testimony he had additionally told the issuing judge that the informant had personally observed contraband being placed in the suitcases.This information does not appear in the affidavit or magistrate's endorsement to the search warrant application, and we do not consider it.The search warrant must stand or fall on facts recited in the affidavits and the abstracts of oral testimony endorsed on the application; it cannot be rehabilitated by later testimony.Rice v. Wolff, 513 F.2d 1280, 1287(8 Cir.), cert. granted, 422 U.S. 1055, 95 S.Ct. 2677, 45 L.Ed.2d 707(1975);State v. Liesche, 228 N.W.2d 44, 48(Iowa1975).

I.The overriding question, of course, is whether there was probable cause for issuance of the search warrant.Probable cause exists when the facts and circumstances presented to the judicial officer are sufficient in themselves to justify the belief of a person of reasonable caution that an offense has been or is being committed.State v. Boer, 224 N.W.2d 217, 219(Iowa1974);State v. Everett, 214 N.W.2d 214, 217(Iowa1974).The issuing officer cannot rely on mere conclusions to determine that probable cause exists.State v. Boer, supra, and citations.

At the outset we note Arduser's affidavit recited he corroborated the fact S. Kerns and W. Kerns had reservations on the flight specified by Wolff.We do not rely on this corroboration, however; such activity is entirely innocent and cannot be used to bolster an otherwise inadequate warrant application.SeeSpinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 642(1969);State v. Boer, supra, 224 N.W.2d at 221.

Defendants argue this search warrant application does...