State v. Hall, 52075

• Citation: 143 N.W.2d 318,259 Iowa 147
• Decision Date: 14 June 1966
• Docket Number: No. 52075,52075
• Parties: STATE of Iowa, Appellee, v. Tommie J. HALL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 318

143 N.W.2d 318

259 Iowa 147

STATE of Iowa, Appellee, v. Tommie J. HALL, Appellant.

No. 52075.

Supreme Court of Iowa.

June 14, 1966.

Harold Leener, and Charles W. Bowers, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Ray Fenton, County Atty., for appellee.

GARFIELD, Chief Justice.

Defendant Tommie J. Hall, age 22, was indicted, tried and convicted of robbery with aggravation as defined in sections 711.1, 711.2, Code, 1962. His appeal assigns four errors, the second and third of which are argued together.

The State's evidence is that at about 12:15 on the night of July 8--9, 1965, defendant drove his red and white 1956 Chevrolet auto into the Hudson Oil Company's filling station at 928 SE 14th Street in Des Moines and ordered a dollar's worth of 'gas.' After the attendant, Virgil Armstrong, put the gas in the car and went to its driver's side to collect the dollar, defendant 'held a gun' on Armstrong, ordered him to drop the money he had inside the car and take a walk. Armstrong dropped the $56 he had in the car as directed, observed its license number and called police and the manager of the station.

Police Officers Hoffman and Mould answered the call, were given a description and the license number of the car and found it with defendant in it at 12:45 at 19th and Cottage Grove, nor far from the home of defendant and his parents, some four to five miles from the scene of the robbery. When the officers placed defendant under arrest they observed a ten-dollar bill and two 'ones' on the floor of the car on the driver's side. The officers drove to the Hudson Oil station with defendant in their car, where Armstrong identified him as the one who committed the robbery. Defendant was then taken to the police station where a search of his person revealed $56.19. This was in addition to the $12 found in the car.

The officers procured a search warrant from Judge Harrison of the Des Moines municipal court as his home commanding any peace officer to search defendant's car. Police Officers Ferguson and Staats, acting under the warrant, found in the glove compartment a 22-caliber revolver loaded with six rounds of ammunition and the $12 in currency on the car floor. Armstrong testified the revolver received in evidence looked like the same gun defendant held on him.

Defendant admitted he drove his car to the Hudson station on SE 14th Street for gas but testified it was earlier in the evening, after he left work at 9, went to the home of his friend Russell and they took a ride. He said he paid for the gas and denied being at the Hudson station again until he was taken there by the officers when Armstrong identified defendant as having robbed him. After visiting a restaurant and a root beer stand, according to defendant, he drove to the home of himself and parents about 10:30 and played cards upstairs most of the time until about 12:30 when several guests in the home left.

Defendant testified further he too left the home about 12:30 to drive to a filing station, near the place he was later arrested, to put air in a tire. He denied he knew there was a gun in his glove compartment and said it was put in there without his knowledge, he first learned of it when the officers told him they found in there. He later said his friend Russell put the gun in the glove compartment on Sunday and he saw it then. Defendant admitted he had $56.19 when arrested but said this included the $12 on the floor of the car and it had been paid him as wages. According to defendant the $12 was probably in his shirt pocket and fell out when he took off the shirt.

Defendant's parents, brothers, sisters and guests in the home testified in support of a claim of alibi that he and his car were at the home continuously from about 10:30 to 12:30 when he left with his car.

There is no contention the evidence is insufficient to support the verdict.

I. Error is assigned in overruling defendant's motion to suppress all evidence of and inquiry into his possession of a revolver and in overruling his motion to strike all testimony concerning such possession on the ground the search warrant was obtained without probable cause and on the strength of an affidavit made without knowledge or information. Reliance is upon the Fourth Amendment to the federal constitution and the holding of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, that the amendment is enforceable against the states through the Fourteenth Amendment and renders inadmissible in a state court evidence seized in violation of the former provision.

The Fourth Amendment provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' A like provision is Article I, section 8, of our state constitution.

We may observe at the outset that defendant's motions to suppress and to strike were too broad regardless of the legality of the search of his car. Certainly Armstrong's testimony that defendant held a gun on him was properly received in any event. However, we are not inclined to place our decision on this observation. We think the evidence of finding the gun in the car was rightly received.

The police officers who investigated the crime and arrested defendant first obtained from Armstrong a description and license number of the car used in commiting the armed robbery and also obtained defendant's street address. The officers located the car with defendant in it and observed the $12 on the floor of the car. They reported this to the police department, asked that the car be impounded and a warrant obtained to search it. Certainly the investigating officers had reason to believe the gun used in committing the crime was concealed in the car and the rest of the stolen money was either in the car or on defendant's person. Officer Ferguson, who received the call for the search warrant, had a right to accept as reliable the report of the investigating officers in making his affidavit and application for the warrant.

That observations of fellow officers engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their numbers see United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684, 690, and citations.

We may as well quote at this point part of what the cited opinion (1965) says about probable cause for issuance of a search warrant: 'While a warrant may issue only upon a finding of 'probable cause,' this Court has long held that 'the term 'probable cause' * * * means less than evidence which would justify condemnation,' Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (367), and that a finding of 'probable cause' may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (331). As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1889), 'There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.' Thus hearsay may be the basis for issuance of the warrant 'so long as there (is) a substantial basis for crediting the hearsay.' Jones v. United States, supra, 362 U.S. (257), at 272, 80 S.Ct. (725), at 736 (4 L.Ed.2d 697 at 708, 78 A.L.R.2d 233). And, in Aguilar we recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved 'whose identity need not be disclosed * * * was 'credible' or his information 'reliable. " Aguilar v. State of Texas, supra, 378 U.S. (108), at 114, 84 S.Ct. (1509), at 1514 (12 L.Ed.2d 723 at 729).

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting' (pages 107, 108 of 380 U.S., at pages 745, 746 of 85 S.Ct., pages 688, 689 of 13 L.Ed.2d).

Questions involving searches of motorcars cannot be treated as identical to questions arising out of searches of buildings although the test is still whether the search is unreasonable. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777, 780.

The sworn information and application for the search warrant signed by Officer Ferguson complies with section 751.4, Code, 1962, and recites in part the commission of the robbery on July 9 'wherein certain personal property, to wit: $100 in currency--and 1 hand gun used in the crime was stolen;

'3. That he believes and has substantial reason to believe the said personal property is now concealed in a red over white over red 1956 Chev. 2dr 77--9865. Reg. to Tommy Jim Hall which is located at 1922 Woodland in Des Moines * * *, said personal property being in the...