State v. Halverson

• Decision Date: 12 December 1967
• Docket Number: No. 52623,52623
• Citation: 261 Iowa 530,155 N.W.2d 177
• Parties: STATE of Iowa, Appellee, v. Kenneth HALVERSON, Appellant.
• Court: Iowa Supreme Court

Page 177

155 N.W.2d 177

261 Iowa 530

STATE of Iowa, Appellee, v. Kenneth HALVERSON, Appellant.

No. 52623.

Supreme Court of Iowa.

Dec. 12, 1967.

Sheridan & Sheridan, Waukon, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and John W. Shafer, County Atty., for appellee.

MOORE, Justice.

Defendant, Kenneth Halverson, was charged, tried and convicted of the crime of hunting by artificial light in violation of Code section 109.93 and ordered to pay a $300 fine. He has appealed. We affirm.

Gerald Ira Hoilien, a state conservation officer, testified that while on duty the night of December 5, 1965 he observed lights flashing in a field east from his location at the Helen Hirth farm and called Iowa Highway Patrol Officer Gary Soper for assistance. After both officers observed the lights they separated. Hoilien took a closer position where, by the use of United States Navy binoculars, he observed for about five or ten minutes an automobile being driven in slow circles with its lights on in a cornfield north of Jim Scholtes' farm house. From the style and particularly the tail lights he determined the automobile was a 1958 Chevrolet.

When the car appeared to head in the direction of the Scholtes' farm buildings, Hoilien drove to the Scholtes' farmstead where he observed the car coming from the field into the area of the buildings. He then stopped his car blocking the driveway and turned on his headlights and red light. The other car, a 1958 Chevrolet owned and driven by defendant, stopped about ten feet from the officer's vehicle. The officer observed cornstalks sticking out from the radiator and from underneath the car.

The testimony regarding the events which followed is in dispute. Hoilien testified, both at the hearing of defendant's motion to suppress certain evidence and at the trial, that when he approached defendant's automobile he identified himself and asked defendant, who was then outside his car, whether he had been hunting and defendant replied 'Yes, a little.'

Officer Hoilien further testified he then asked defendant if he could open the door of defendant's automobile and he said 'Yes'. The officer then removed a gun that was lying on the rear floor board. Defendant was then asked if any other guns were in the car to which he answered 'No'. Hoilien then asked defendant if he minded if he looked and defendant stated 'No, go ahead'. The officer then found a rifle protruding from under the front seat with three shells in the magazine which he removed. They were expanding shells which when fired expand and make a large hole when hitting an animal.

Hoilien testified: 'After I looked in the car I asked Kenneth Halverson to step over to my car, and he did. I asked him if he was aware of this shining law or hunting with an artificial light, and he said 'No'. I asked him if that was the first time he had gone hunting, and he replied it was the first time he had gone deer hunting and he wasn't going to go any more. Those were his words. I believe I asked him if he got talked into going hunting, and he said, 'No, it's just as much my fault as it is anybody's.' I asked him if they had killed a deer, and he said they hadn't killed a deer that night or any other night.'

Hoilien further testified he asked defendant how long they had been out in the fields and defendant shrugged his shoulders and said, 'I don't know. Probably about 45 minutes or so.'

After being retained approximately 45 minutes defendant and the occupants of his automobile were released by the officer to permit defendant to take his wife and son home. They had been visiting in the Scholtes' home. As instructed defendant and the other men in his car when it was stopped by Hoilien met the officers at the Waukon City Hall where formal charges were filed against them.

Defendant and the occupants of his car, except one who had died before trial time, testified they had been pheasant hunting during the day of December 5, after eating, cleaning game and delivering some toys to another farm they then drove to the Scholtes' farm to leave defendant's minor son with his mother who was there visiting and they were just leaving when stopped by the officer. Each denied they had been in the Scholtes' farm field and that they had been hunting that night. They stated the guns had been left in the car after pheasant hunting that day.

They testified when stopped by Hoilien he rushed to the car, jerked open the doors, and seized the two guns.

Prior to trial defendant moved to suppress evidence of the seizure of the two guns and asked the court to direct the State not to offer or attempt to offer any proof of defendant having possession thereof. On hearing of this motion Hoilien, defendant and occupants of his car, except the one who had died, testified regarding seizure of the guns. We have set out above the substance of their testimony.

The trial court overruled defendant's motion to suppress this evidence. No reasons were then stated.

At the close of the State's case in chief defendant again raised the question of the admissibility in evidence of the two guns, exhibits A and B. The trial court's ruling includes: 'I feel, on the basis of the record as it stands, the defendant consented to have the search of his car by Officer Hoilien; and that in the absence of a search warrant that the evidence was legally obtained.'

I. Defendant argues the trial court erred in overruling his motion to suppress and allowing evidence on trial regarding seizure of the two guns. We do not agree.

Illegally seized evidence, of course, is inadmissible, and if the guns were illegally taken or obtained by illegal search or seizure under the well-known case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, admission of evidence thereof would be reversible error. State v. Post, 255 Iowa 573, 581, 123 N.W.2d 11, 16; State v. Hall, 259 Iowa 147, 143 N.W.2d 318, 320; State v. Anderson, 260 Iowa 122, 148 N.W.2d 414, 416.

It is undisputed no search warrant had been obtained by Officer Hoilien. Based on this fact defendant argues his constitutional protection against unreasonable search and seizure as guaranteed by the Fourth Amendment to the Constitution of the United States and also Article 1, section 8 of the Constitution of the State of Iowa was violated. Not all searches or seizures undertaken without a warrant, however, are unreasonable. A search and seizure predicated on voluntary consent or one conducted as an incident of a lawful arrest are exceptions to the rule that a search must rest upon a search warrant. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; State v. Post, 255 Iowa 573, 582, 123 N.W.2d 11, 16, 17; State v. Raymond, 258 Iowa 1139, 1344, 142 N.W.2d 444, 447; State v. Anderson, 260 Iowa 122, 148 N.W.2d 414, 416; State v. Gates, Iowa, 150 N.W.2d 617, 618; State v. Brant, Iowa, 150 N.W.2d 621, 624.

Defendant admits a lawful arrest was made by Officer Hoilien. Code section 755.4 provides a peace officer may make an arrest without a warrant for a public offense committed in his presence or where a public offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.

In our recent case of State v. Anderson, supra, we review our holdings and those from other jurisdictions regarding an officer's right to conduct a search of an automobile incident to a lawful arrest and need not repeat here the applicable principles of law. We hold the search and seizure of the two guns was incident to defendant's lawful arrest.

The trial court's finding defendant had consented to the search of his automobile is amply supported by the record. The principles of law applicable thereto are analyzed in State v. Gates, supra, 150 N.W.2d 617, filed May 2, 1967. To repeat them here would unduly lengthen this opinion.

II. Based upon rules laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, defendant asserts his constitutional right against self-incrimination was violated by admission of Officer Hoilien's testimony regarding claimed statements made by defendant. No claim is made by the State that any warning of constitutional rights was given by the officer. Miranda, however, does not apply here because the trial preceded the Miranda decision. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; State v. Rye, 260 Iowa 146, 148 N.W.2d 632, 638, 639.

Assuming, arguendo, defendant had a valid objection to the testimony regarding claimed admissions by defendant, we find no objection to Hoilien's testimony in regard thereto was made during the entire trial of the case. Defendant's experienced and able counsel had heard substantially the same testimony at the hearing on the motion to suppress. No motion to strike said testimony was made in the trial court. We have repeatedly said under such circumstances no appealable question is presented to this court. State v. Post, 255 Iowa 573, 580, 123 N.W.2d 11, 15; State v. Ford, 259 Iowa 744, 145 N.W.2d 638, 642; State v. Olson, Iowa, 149 N.W.2d 132, 136. Failure to object to the admissibility of evidence in the trial court waives any error therein and its admissibility is not reviewable here. State v. Jones, 253 Iowa 829, 834, 113 N.W.2d 303, 306, and citations. Ordinarily constitutional questions cannot be raised for the first time on appeal. State v. Jones, supra; State v. LaMar, Iowa, 151 N.W.2d 496, 502, 503; State v. Wallace, Iowa, 152 N.W.2d 266, 268; State v. Hardesty, Iowa, 153 N.W.2d 464, 469.

Therefore, defendant's assignment of violation of his constitutional right against self-incrimination cannot be considered here.

III. Defendant's next assigned error is based on receipt of testimony of Officer Hoilien as to his observations of the...