State v. Entsminger

• Citation: 160 N.W.2d 480
• Decision Date: 18 July 1968
• Docket Number: No. 52982,52982
• Parties: STATE of Iowa, Appellee, v. Harvey Lyle ENTSMINGER, Appellant.
• Court: Iowa Supreme Court

Page 480

160 N.W.2d 480

STATE of Iowa, Appellee, v. Harvey Lyle ENTSMINGER, Appellant.

No. 52982.

Supreme Court of Iowa.

July 18, 1968.

John P. Roehrick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. A. Elderkin, Asst. Atty. Gen., and Ray A. Fenton, County Atty., Des Moines, for appellee.

MASON, Justice.

This is an appeal from judgment following a jury verdict convicting defendant Harvey Lyle Entsminger of uttering a forged instrument contrary to section 718.2, Code, 1962, 1966.

Questions in the case are whether (1) private handwritten papers seized from defendant during a 'booking' procedure were seized and searched illegally contrary to Amendments 4 and 14 of the United States Constitution; (2) the State's use of these papers at defendant's trial compelled him to be a witness against himself in contravention of Amendments 5 and 14; and (3) there was a material and fatal variance between the allegations of the county attorney's information and the proof.

A notice of appeal to this court was filed November 27, 1964. However, no notice that defendant desired to submit his case upon a printed abstract of record, brief and argument was served or filed nor was any printed abstract of the record filed or served as required by our Court Rule 16 as then in effect. As a consequence, the matter was submitted on a 'clerk's transcript' March 8, 1965. Three days later this submission was set aside by an order directing that defendant be permitted to proceed with the appeal on a printed abstract and a brief on the merits. When nothing was filed by defendant's counsel by September 21, rather than to dismiss the appeal, the matter was again submitted on 'clerk's transcript' and a per curiam opinion affirming defendant's conviction was filed October 19. State v. Entsminger, Iowa, 137 N.W.2d 381.

June 20, 1966, certiorari to this court was granted by the United States Supreme Court. May 8, 1967, the Supreme Court reversed this court and remanded the case for another appeal 'with a full printed abstract of the record, briefs and oral argument.' Entsminger v. State of Iowa, Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501. September 18 an order directed that the new appeal be submitted to this court at the earliest opportunity.

The matter is now before us after oral arguments on a complete transcript in lieu of printed record with printed brief and argument prepared by defendant's court-appointed counsel.

I. Des Moines police were looking for defendant in connection with bad checks being passed throughout the city. Detective Marohn testified that although he did not have a warrant for defendant's arrest, he had been looking for him on June 12, 1964, relative to the check involved. The same day while defendant was driving his car, he was arrested for a traffic violation and taken to the police station. The following morning while Marohn was talking to defendant at the city jail, Entsminger said he had been drinking and had passed several checks in the city.

Defendant testified the arresting officers told him at the scene he was being arrested for forgery. In fact sometime after his conversation with defendant at the city jail Detective Marohn filed a forgery charge against him on a check other than the one involved here. When defendant was unable to furnish bond on the forgery charge, he was transferred to the Polk County jail. That charge was dismissed at preliminary hearing held sometime between June 13 and 29--the record does not disclose the exact date. Following this a charge of uttering a forged instrument based on the check here was filed by Marohn.

While defendant was being 'booked' on the instant charge in the municipal court building jail June 29 three handwritten documents were taken from his pocket in an inventory process. When questioned by Lieutenant Dawson of the identification bureau, defendant stated he had written the various documents. They were then placed in a 'booking envelope' and deposited in a safe. When Dawson requested defendant give handwriting samples, he refused. The officer then had the jailer remove the exhibits from the safe and later used them for comparison with the handwriting on the State's exhibit 'A', a check, upon which the present charge is based.

September 14 a county attorney's information was filed charging defendant with uttering a forged instrument. At arraignment he entered a plea of not guilty and was thereafter tried, convicted and sentenced to the state penitentiary for a period not to exceed 10 years.

II. Defendant's contention under his first assignment of error raises the first question, supra. He asserts the admission in evidence for handwriting comparison purposes of the three documents taken from him at the 'booking' process, exhibits 'I', 'J' and 'K' at trial, violated his constitutional rights under Amendments 4 and 14 as they were obtained by an illegal search and seizure.

He admits some writing on exhibit 'I', consisting of six handwritten sheets of lined paper and some on exhibit 'J', consisting of two additional handwritten sheets, are his. He describes the papers as three sets of legal documents he was going to file in court that day. His complaint is limited to the manner in which police acquired possession of the documents.

No motion was made before trial to suppress the evidence nor did defendant at any time during trial request a hearing on whether the exhibits and testimony relative thereto were inadmissible under Amendments 4 and 14.

It is defense counsel's job, not the court's, to raise the question of unlawful search and seizure. Kuhl v. United States (9 Cir.), 370 F.2d 20, 26.

During the direct examination of Dawson when the witness was asked if he had made a comparison between exhibits 'I', 'J' and 'K' and the signature on exhibit 'D', a fingerprint card signed by Entsminger in the witness' presence, defendant for the first time objected there had been no showing the evidence was legally obtained; that he felt it should not be commented upon. The objection was overruled. Later when the fingerprint card was offered in evidence defendant's only objection was 'no proper foundation laid.' The same objection was made to the offer of enlarged photographs of exhibits 'I' and 'J' and renewed to the offer of exhibits 'I' and 'J'. Exhibit 'K' was not offered.

Of course, reversible error may not be predicated upon this general objection that no proper foundation had been laid for admission of these exhibits. A party objecting to the offer of evidence for this reason must point out in what particular or particulars the foundation is deficient so the adversary may have an opportunity to remedy the alleged defect, if possible. See Jackson v. Chicago, M., St. P. & P.R. Co., 238 Iowa 1253, 1263, 30 N.W.2d 97, 103; Frederick v. Shorman, 259 Iowa 1050, 1060--1061, 147 N.W.2d 478, 485; In Re Estate of Ronfeldt, Iowa, 152 N.W.2d 837, 846; and McCormick on Evidence, section 52.

Although we think defendant's objection 'there had been no showing the evidence was legally obtained' is insufficient to raise the question on appeal, because of its importance to the law enforcing agencies of this state, we prefer to decide the first question presented on its merits.

The inventorying process conducted at the city jail June 29 can hardly be justified under the traditional concept of being incidental to the arrest of June 12. The legality of the seizure of the documents rests upon the reasonableness thereof. 'For 'what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.' Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960).' Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, decided June 10, 1968. The purpose of Amendment 4 is not to prevent all searches--only unreasonable searches and seizures. State v. Hagen, 258 Iowa 196, 204, 137 N.W.2d 895, 899; State v. Polton, 259 Iowa 435, 442, 143 N.W.2d 307, 311; State v. Brant, 260 Iowa 758, 150 N.W.2d 621, 625, and citations in these opinions. The seizure, as well as the search, must not be unreasonable. State v. Raymond, 258 Iowa 1339, 1347, 142 N.W.2d 444, 449.

'What is reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.' United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653. See also State v. Raymond, supra.

'(T)here is 'no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.' Camara v. Municipal Court, 387 U.S. 523, 534, 536--537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).' Terry v. State of Ohio, supra.

The question is whether in all the circumstances of this 'booking' process defendant's right to personal security was violated by an unreasonable search and seizure.

As stated, police were looking for defendant as a result of bad checks being passed throughout the city, Detective Marohn had been looking for him on June 12 with respect to the check involved. After the forgery charge upon which Entsminger had originally been arrested was dismissed, he was returned to the city jail from the county jail to be taken into custody and 'booked' on this uttering charge. During the course of this process exhibits 'I' and 'J' were taken from him, apparently in accordance with a police department custom to inventory the personal effects kept for safekeeping by the police for one legally held in jail. In their endeavor to fulfill the duty owed to take and care for the property of these persons it was proper for the police to require Entsminger to turn over to them at this stage property, including papers, he...