State v. Hamilton

• Decision Date: 17 December 1975
• Docket Number: No. 57263,57263
• Citation: 236 N.W.2d 325
• Parties: STATE of Iowa, Appellee, v. Michael Dennis HAMILTON, Appellant.
• Court: Iowa Supreme Court

Page 325

236 N.W.2d 325

STATE of Iowa, Appellee, v. Michael Dennis HAMILTON, Appellant.

No. 57263.

Supreme Court of Iowa.

Dec. 17, 1975.

Rehearing Denied Jan. 14, 1976.

Gary B. Garrison, Des Moines, for appellant.

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

Heard by MOORE, C.J., and MASON, RAWLINGS, UHLENHOPP and HARRIS, JJ.

RAWLINGS, Justice.

Defendant appeals from judgment on jury verdict finding him guilty of possessing a controlled substance with intent to deliver (Section 204.401(1), The Code 1973). We affirm.

September 6, 1973, a United States Customs agent, using a dog trained to detect narcotics in mail shipments at Kennedy International Airport, New York, seized a package addressed to Mike Hamton, 3308 Crescent Drive, Des Moines, Iowa. The parcel was found to contain a quantity of hashish. After being resealed it was forwarded to Des Moines where a postal inspector and three policemen placed same in the hands of a regular mail carrier for delivery.

At the 3308 Crescent Drive residence, defendant Michael Hamilton answered the door. The mailman called his attention to the fact the name on the package was 'Hamton', but defendant answered, 'This is mine'. He also, by signature, acknowledged receipt thereof. The carrier testified that after defendant closed the door he said, 'Whoopee, the stuff is here'.

A short time later peace officers entered the above designated premises with a previously obtained warrant authorizing them to there search for 'hashish, a Schedule I controlled substance, and any and all controlled substance as defined in (Chapter) 204 of the 1973 Code of Iowa'. For or five people were in the house, including defendant.

After being informed the officers had a warrant to search for controlled substances, defendant surrendered the aforesaid parcel, claiming it had been mistakenly delivered to him. A federal narcotics agent testified, however, 'Mr. Hamilton said he got a package in the mail and he thought it was sent by Mark Rynearson'. Defendant was thereupon arrested and a prompt search of the premises followed. A number of letters addressed to defendant were immediately found in a bedroom dresser drawer. Four of them were seized and all but one bore the return name and address 'M. Rynearson, 485--72--4220, B Company, 2d 13th Infantry, APO New York, N.Y. 09028'.

Numerous other items, including marijuana seeds, hashish pipes, hypodermic needles, a set of scales and other paraphernalia were also seized.

After defendant had been charged by information, he pled not guilty and, before trial, unsuccessfully moved to suppress evidential use of the aforesaid letters. They were later admitted over these defense objections: (1) 'fruits of a wrongful search in that said search, while ostensibly pursuant to a search warrant, (was) in fact an inexcusable incursion and extension of said warrant' and (2) 'hearsay as to the defendant'. In support of a reversal it is now contended trial court reversibly erred in overruling these objections.

I. Conceding there was probable cause to search for the package of hashish, defendant first argues the warrant was overbroad in additionally authorizing a search for 'any and all controlled substances' in that such constituted an impermissible 'general warrant'. Resolution of this issue requires us to determine whether (1) there was probable cause to search for 'any and all controlled substances' and (2) such substances are described with sufficient particularity. These questions will be entertained in the order presented.

In Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038--2039, 29 L.Ed.2d 564 (1971), the court said:

'The second, distinct objective (served by the warrant requirement) is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the 'general warrant' abhorred by the colonists, and the problem is not that of intrusion Per se, but of a general, (exploratory) rummaging in a person's belongings. (Citations). The warrant accomplishes this second objective by requiring a 'particular description' of the things to be seized.'

Mindful thereof we look to decisions from other jurisdictions in order to ascertain whether authorization to search for 'any and all controlled substances' made the instant warrant, to such extent, a proscribed 'general warrant'.

As might be expected, various courts have taken divergent positions on this subject. We are satisfied, however, People v. McGill, 528 P.2d 386 (Colo.1974) expresses the more rational, therefore preferable attitude. The affidavit in that case alleged an officer had personally seen marijuana plants growing in defendant's window. The warrant issued pursuant to this observation directed the police to search for 'growing cannabis plants, commonly known as marijuana, narcotics, danagerous drugs, implements and paraphernalia involved in drug use'. The attendant search produced numerous caches of marijuana, amphetamines and related equipment. The court thus framed one of the issues: 'Whether facts set forth in the affidavit established probable cause for the issuance of a search warrant to search the defendants' apartments for evidence Apart from the marijuana plant'. (Emphasis supplied). Id. 528 P.2d at 388. Trial court suppressed all evidence other than the plants. In reversing, the Colorado Supreme Court said at 389:

'In short, the trial court would limit the reach of the search warrant to the items actually seen by the informant. This is too strict an application of probable cause. The magistrate could reasonably infer from the fact that three marijuana plants were growing in the house that there might also be marijuana seeds, stocks and the leaves, as well as the paraphernalia to use it for the purpose for which it was grown. (Citations).

'In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed 436 (1948), Mr. Justice Jackson made this statement:

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement The support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." (Emphasis in original).

Even more on point is this statement in Weber v. Superior Court for County of Santa Clara, 30 Cal.App.3d 810, 814, 106 Cal.Rptr. 593, 596 (1973):

"A reasonable and prudent magistrate could infer that the consignee of contraband mailed from outside the United States would know that he was party to an illegal transaction and that, branded with such knowledge, it is reasonable to infer that the consignee possesses other contraband of foreign or domestic origin."

See also People v. Hester, 22 Ill.App.3d 118, 319 N.E.2d 301, 302 (1974); People v. Singer, 44 A.D.2d 730, 354 N.Y.S.2d 178, 180 (1974); People v. Mangialino, 75 Misc.2d 698, 348 N.Y.S.2d 327, 336 (1973); State v. Eismann, Or.App., 533 P.2d 1379, 1381--1382 (1975); 18 U.S.C.A. § 3103a; Fed.R.Crim.P. 41(b); § 751.3(9), The Code 1973.

We now conclude there was probable cause for issuance of the warrant authorizing a search for 'any and all controlled substances' despite the fact affiant's personal knowledge may have been limited to contents of the package containing hashish.

This holding is accorded additional support in State v. Oliveri, 261 Iowa 1140, 1147, 156 N.W.2d 688, 692 (1968), where this court said:

'(W)hen a magistrate has found probable cause, reviewing courts are slow to invalidate the warrant by interpreting an affidavit or other information under oath furnished the magistrate in a hypertechnical rather than a realistic and commonsense manner. Doubtful or marginal cases in this area should be largely determined by preference to be accorded warrants. (Citation). A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a juricial officer before acting. (Citation).'

See also State v. Hall, 259 Iowa 147, 156, 143 N.W.2d 318 (1966).

II. The next related inquiry goes to validity of the warrant because it failed to describe 'other controlled substances' with particularity.

Reduced to bare essentials we are called upon to determine whether the phrase 'any and all other controlled substances' was so broad and vague it necessarily clothed the warrant-executing officers with interdicted discretion regarding items to be seized.

The New Mexico Court of Appeals recently dealt with this problem. In State v. Quintana, 87 N.M. 414, 534 P.2d 1126 (1975), the warrant authorizing a search of certain premises directed the officers to look for 'any and all controlled substances which may be kept there contrary to law'. In upholding the adequacy of this specification the court said, 534 P.2d at 1129--1130:

'We are of the opinion that the items to be searched for and seized in the case before us were as precisely identified in the warrant as the situation permitted considering the wide variety of drugs used by addicts in the United States. The words, 'controlled substances . . . contrary to law', used in the warrant have a definite meaning in that they refer to certain and definite lists of drugs and their derivatives. Nothing was left to the discretion of the Officers. They were commanded to seize any of the items on those lists present on the premises contrary to law, and nothing else.'

See also People v. Leahy, 173 Colo. 339, 484 P.2d 778, 781 (1970); State v. Olson, 15 Or.App. 393, 515 P.2d 1342 (1973); 68 Am.Jur.2d, Searches and Seizures, §§ 81--82; 79 C.J.S. Searches and Seizures § 81c.

Under existing circumstances the instant search warrant was not subject to attack on the ground of generality or...