State v. Hilleshiem

Decision Date23 April 1980
Docket NumberNos. 63529,63534 and 63538,s. 63529
Citation291 N.W.2d 314
PartiesSTATE of Iowa, Appellee, v. Jimmy Lynn HILLESHIEM, Appellant. STATE of Iowa, Appellee, v. Jeffrey Scott CARLSON, Appellant. STATE of Iowa, Appellee, v. Michael Dan KEMMERER, Appellant.
CourtIowa Supreme Court

R. L. Van Veldhuizen of O'Brien Law Firm, P. C., Oelwein, for appellant Hilleshiem.

Larry F. Woods, Oelwein, for appellant Carlson.

John W. Hofmeyer III of Hofmeyer & Anthony, Oelwein, for appellant Kemmerer.

Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., and J. G. Johnson, Asst. Fayette County Atty., for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

In each of these three cases the defendant filed application for discretionary review after trial court overruled his motion to suppress evidence obtained when the police stopped the auto he occupied. Because each arrest arose out of the same or similar circumstances, we consolidated the appeals for submission and now reverse the three rulings in this opinion.

Suppression hearing evidence disclosed the police action was triggered by a wave of vandalism in the Oelwein city park which had caused damages totaling $7000 to $8000.

At about 8 p. m. November 20, 1978, police officers Ringham and Barker devised a plan to stop all the vehicles in the park after dark. Ringham later testified this was "to identify the driver, so that if there was some vandalism that had occurred that evening, we would at least have an idea of someone to question, to see if they had seen anything." There had been no vandalism for several days. The action was initiated without direction from the chief of police or higher authority.

Three cars were stopped at about 8 p. m. on November 20. The second car was driven by James Weishaar, who later testified (without contradiction) that the officers said "if we came through again that the cars probably would be searched."

The third car was driven by defendant Jeffrey Carlson. His frontseat passenger was the defendant Michael Kemmerer. Officer Barker, on the driver's side of the car, smelled a "strong odor of burnt marijuana" and observed a pipe, of a type commonly used to smoke marijuana, on the console between the front seats. Officer Ringham, apparently checking out Kemmerer, signaled the latter to roll down the passenger side window. Ringham also smelled marijuana. Carlson, Kemmerer, and a backseat passenger were arrested and the still-warm pipe was seized. The three were taken to the police station. Although he was given the Miranda warning, Carlson wrote out a statement for the police shortly after 10 p. m. in which he admitted the three had been smoking marijuana.

By the time the booking procedures were completed, the 10:30 p. m. park closing time, as well as the 11 p. m. shift termination time, had passed. No further vehicle stops were attempted. Carlson and Kemmerer were charged with possession of a controlled substance in violation of section 204.401(3), The Code. Carlson moved to suppress the testimony of the police relating to their observations after the car was stopped, together with his later written statement. Kemmerer filed a motion to suppress all evidence obtained from the car, "including but not limited to a pipe and its contents."

On the next night, November 21, officers Barker and Shirkey continued the vehicle stops in the park, this time pursuant to an assistant chief's "directive." The record does not disclose whether this directive was oral or written, or whether it contained any restraints on the officers' discretion. Officer Barker testified, "This was just something that we were doing when we had the time to do it." Their intention was to stop "every vehicle that (it) was possible for us to stop," but when a car was stopped it was impossible to stop one going in the opposite direction.

These officers commenced stopping cars at 8:30 p. m. The third car stopped belonged to defendant Hilleshiem. When officer Barker asked Hilleshiem to produce his driver's license he observed a can of beer in his lap and minors in the car, one of whom also had beer. On the ground on the passenger side of the car he found a plastic vial containing marijuana cigarettes which had not been there when the car was stopped. The occupants of the car were removed and handcuffed. A search of the car produced partially burned cigarettes, rolled marijuana cigarettes and more beer, both opened and unopened.

Because of the paper work involved with these arrests, no further vehicle stops were conducted on the night of November 21.

Hilleshiem was also charged with possession of a controlled substance in violation of section 204.401(3), The Code. He moved to suppress all evidence relating to marijuana obtained as a result of the car stop incident as an unconstitutional search and seizure.

Evidence on the suppression hearings established that when the Oelwein officers stopped these vehicles they had no recent information relating to any vandalism or criminal activity in the park, or that these vehicles were involved in criminal activity. There were no violations of any motor vehicle laws. There was no indication the stops were related to driver's license or auto registration inspections, and one officer directly stated this was not the purpose of their activity.

The suppression motions were overruled. Trial court relied on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Both in district court and here the three defendants have raised the basic question whether these vehicle stops were constitutionally permissible under the fourth amendment to the United States Constitution and under the Iowa Constitution, art. I, § 8. If the stop was unlawful the evidence should have been suppressed. United States v. Montgomery, 561 F.2d 875, 878 (D.C. Cir. 1977); United States v. Nicholas, 448 F.2d 622, 623 (8th Cir. 1971); State v. Reese, 259 N.W.2d 793, 796 (Iowa 1977); State v. Swartz, 244 N.W.2d 553, 555 (Iowa 1976).

I. Scope of review.

Confronted with alleged constitutional violations, we resolve the issue by making our own independent evaluation of the totality of the circumstances. State v. Iowa District Court, 247 N.W.2d 241, 245 (Iowa 1976); State v. Farrell, 242 N.W.2d 327, 329 (Iowa 1976). Our review is de novo. State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980); State v. Post, 286 N.W.2d 195, 199 (Iowa 1979). The burden is on the State to show this evidence was obtained lawfully. See State v. Shea, 218 N.W.2d 610, 613 (Iowa 1974).

II. Constitutionality of the vehicle stops.

The law which provides the backdrop for considering the issue before us is well established. The essential purpose of the fourth amendment search and seizure proscriptions is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement officials, in order to safeguard the privacy and security of individuals against arbitrary invasions. Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979); Delaware v. Prouse, 440 U.S. at 653-54, 99 S.Ct. at 1396, 59 L.Ed.2d at 667. The first overview courts employ to determine whether a seizure is unreasonable is whether the thing done, in the sum of its form, scope, nature, incidents and effect, impresses as being fundamentally unfair or unreasonable in the specific situation when the immediate end sought is considered against the private right affected. State v. Davis, 228 N.W.2d 67, 70 (Iowa 1975).

The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-79, 20 L.Ed.2d 889, 903-04 (1968), recognized that when a police officer accosts a pedestrian and restrains his or her liberty to walk away, the officer has "seized" that person and the fourth and fourteenth amendments are implicated. In justifying the restraint the officer must be able "to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. In the alternative, "the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown, 443 U.S. at 51, 99 S.Ct. at 2640, 61 L.Ed.2d at 362. Accord, United States v. Palmer, 603 F.2d 1286, 1289 (8th Cir. 1979).

The same "seizure" analysis was adopted in examining issues arising when vehicle occupants were stopped and detained. See Prouse, 440 U.S. at 662, 99 S.Ct. at 1400, 59 L.Ed.2d at 673; United States v. Martinez-Fuerte, 428 U.S. 543, 554-59, 96 S.Ct. 3074, 3081-84, 49 L.Ed.2d 1116, 1126-29 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607, 614-15 (1975); State v. Reese, 259 N.W.2d at 795; State v. Donnell, 239 N.W.2d 575, 577 (Iowa 1976); State v. Cooley, 229 N.W.2d 755, 759-60 (Iowa 1975).

In each case, the constitutionality of a particular seizure is judged by balancing the degree of its intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests. Brown, 443 U.S. at 50-51, 99 S.Ct. at 2640, 61 L.Ed.2d at 361-62; Prouse, 440 U.S. at 654, 99 S.Ct. at 1396, 59 L.Ed.2d at 667-68; United States v. Palmer, 603 F.2d at 1289; see State v. King, 191 N.W.2d 650, 654 (Iowa 1971), cert. denied, 406 U.S. 908, 92 S.Ct. 1617, 31 L.Ed.2d 819 (1972).

In several recent cases involving admissibility of evidence obtained by vehicle stops, the United States Supreme Court has engaged in this balancing analysis. In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Court held a stop and search of a moving vehicle by a roving border patrol, without a warrant, consent, probable cause or even a Terry -type "reasonable suspicion" to stop the car, violated the driver's fourth amendment rights. In United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, ...

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