State v. Holderness

• Decision Date: 18 February 1981
• Docket Number: No. 63052,63052
• Parties: STATE of Iowa, Appellee, v. Lawrence Paul HOLDERNESS, Appellant.
• Court: Iowa Supreme Court

Page 733

301 N.W.2d 733

STATE of Iowa, Appellee, v. Lawrence Paul HOLDERNESS, Appellant.

No. 63052.

Supreme Court of Iowa.

Feb. 18, 1981.

G. David Binegar, Bettendorf, for appellant.

Thomas J. Miller, Atty. Gen., Thomas N. Martin and Douglas F. Staskal, Asst. Attys. Gen., William E. Davis, Scott County Atty., and Realff H. Ottesen, Asst. Scott County Atty., Davenport, for appellee.

Considered by REYNOLDSON, C. J., UHLENHOPP, HARRIS, ALLBEE and McGIVERIN, JJ.

ALLBEE, Justice.

Defendant Lawrence Paul Holderness appeals his convictions of sexual abuse in the second degree and kidnapping in the first degree, violations of sections 709.3 and 710.2, The Code, respectively. He sets forth several assignments of error, which we consider in the order presented by his brief.

The circumstances from which this case arose are briefly as follows. On August 26, 1978, a ten-year-old girl was abducted while in a Davenport cemetery. After luring the girl from her bicycle to his car, the assailant choked her, partially removed her pants and "did some things" to her which she could not remember. The assailant also struck her on the head several times with both a club and his fist. Following this episode, he transported the victim out into the country, where she was subjected to various incidents of sexual abuse while still confined in the assailant's car. She was later released when he returned her to the cemetery.

The victim subsequently provided Davenport police descriptions of her assailant, his vehicle and its contents. Based upon the description of the vehicle and an owner's manual discovered in the cemetery, officers on August 29 located an automobile parked on a public street which resembled that used by the girl's assailant. Upon approaching the vehicle, one officer observed through an open window items similar to those described by the victim as having been in the automobile in which the attacks occurred. The keys were in the vehicle's ignition. Shortly thereafter, defendant arrived on the scene. After identifying the automobile as his, he agreed to accompany the officers to the Davenport police station. Following questioning, defendant signed a statement prepared with the officers' assistance in which he admitted having perpetrated the attack in the cemetery. He was then placed under arrest and formally charged. Having waived his right to trial by jury, see Iowa R.Crim.P. 16, defendant was subsequently convicted of both offenses following trial to the court and sentenced to concurrent terms of twenty-five years and life imprisonment. This appeal followed.

I. Admissibility of items seized following search of defendant's automobile. Defendant initially asserts trial court erred in admitting as evidence certain items seized following a warrantless search of his vehicle at the Davenport police station. He claims that because no circumstances existed which would have justified conducting the search without a warrant, it was constitutionally impermissible and suppression of the articles seized was mandated. Because a constitutional challenge is involved, we find the facts de novo. State v. Olsen, 293 N.W.2d 216, 217 (Iowa), cert. denied, --- U.S. ----, 101 S.Ct. 530, 66 L.Ed.2d 290 (1980).

Following defendant's departure to the police station, other officers arrived to photograph his automobile. The vehicle was subsequently taken to the station, where it was later searched. The State acknowledges the search was conducted without a warrant, but argues it was nevertheless lawful because of the existence of probable cause and exigent circumstances.

While ordinarily a search of private property must be both reasonable and performed pursuant to a property executed warrant, there are certain "jealously and carefully drawn" exceptions where a warrantless search will be deemed lawful. Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590-91, 61 L.Ed.2d 235, 242 (1979); State v. Ahern, 227 N.W.2d 164, 165 (Iowa 1975). Among these is the so-called "automobile exception," which the State contends is applicable here. While not invariably authorizing warrantless vehicle searches, this exception is applicable when probable cause and exigent circumstances exist at the time the car is stopped by police. Carroll v. United States, 267 U.S. 132, 153-54, 155-56, 45 S.Ct. 280, 285, 286, 69 L.Ed.2d 543, 551, 552 (1925). Under this rationale, the United States Supreme Court upheld the warrantless search of an automobile conducted after the vehicle had been moved from the scene of the stop to a police station. The Court reasoned that because probable cause and exigent circumstances existed at the scene of the stop and would have made the search permissible at that time, the subsequent warrantless search was also valid. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970). Moreover, exigent circumstances are necessary only initially; the absence of exigent circumstances at the time of the actual search is irrelevant. Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209, 211 (1975) (per curiam). We recently adopted this analysis when interpreting article I, section 8 of the Iowa Constitution in Olsen, 293 N.W.2d at 220.

Thus, as a matter of both federal and Iowa constitutional law, if the search in this instance could have been made in the absence of a warrant at the time officers initially encountered defendant's vehicle, the automobile could still be searched after it was moved to the station, provided only that probable cause still existed. Hence, the determinative questions to be addressed here are whether probable cause obtained both when police came upon the vehicle and at the time of the subsequent station house search, and whether exigent circumstances existed at the time defendant's automobile was located.

The record satisfactorily demonstrates the existence of probable cause both at the time police first came upon defendant's vehicle and when the search took place. The officers had been provided a description of the automobile used by the assailant, which matched defendant's vehicle; discovery of an owner's manual at the scene of the abduction provided further identification of the vehicle involved. These factors adequately establish probable cause in this case.

The exigency requirement, as explained in prior cases, is satisfied "when the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained." Olsen, 293 N.W.2d at 218 (quoting Chambers, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428). In light of the particular facts of this case, we find that exigent circumstances existed at the time officers initially discovered defendant's automobile. At this point, defendant was not yet present. No suspect was then in custody, and the fact that the keys to the automobile were in the ignition provided some indication that the owner was probably nearby and had been alerted by the officers' presence. These facts, coupled with the inherent mobility of the vehicle, created a clear likelihood that the car and its contents might never have been located again had the police departed to obtain a warrant. Based upon these circumstances, we find the requirement of exigency adequately demonstrated here. While defendant arrived on the scene shortly after the officers first encountered the automobile, exigent circumstances nonetheless obtained prior to that time.

Thus, because both probable cause and exigent circumstances existed when police initially located defendant's vehicle, a warrantless search of the automobile would have been reasonable at that time. The same probable cause obtained at the police station. Therefore, under applicable principles, the warrantless search at the station house was permissible, and trial court did not err in admitting the fruits of the search.

II. Admissibility of testimony concerning pretrial identifications of defendant. Defendant next asserts trial court erred in refusing to suppress testimony by the victim concerning two pretrial identifications. He contends improper out-of-court identification procedures tainted both the out-of-court and in-court identifications which she made, resulting in a denial of due process.

Two Polaroid photographs were taken of defendant at the time he was questioned by police. The photographs, having been placed on a desk in the detective bureau, were observed by the victim when she passed through the station after identifying defendant's automobile, which had by that time been impounded. She identified the man in the photos as her assailant. Defendant argues this constituted an impermissibly suggestive identification, asserting that the photographs were intentionally placed atop the desk in order that the victim might view them and identify defendant as the assailant. The State, on the other hand, contends defendant failed to preserve error with respect to this testimony, and we agree. No suppression motion was made in connection with this pretrial identification; moreover, no objection was interposed at trial when both the photographs themselves and the testimony concerning the out-of-court identification were offered. Under these circumstances, defendant waived any error here. Even constitutional issues cannot be raised for the first time on appeal. See State v. Paulsen, 293 N.W.2d 244, 247 (Iowa 1980); State v. Fowler, 248 N.W.2d 511, 517 (Iowa 1976).

The second challenged pretrial identification was made at a deposition of the victim taken by defendant, at which his presence was required. Initially, defendant argues that requiring his presence at the deposition constituted a violation of his constitutional rights, in that it strengthened the prior photographic identification, which was itself impermissibly suggestive. This argument is without merit. As previously stated in State v. Davis, 259 N.W.2d 812, 813 (Iowa 1977), and equally applicable...