State v. Iowa Dist. Court In and For Johnson County

• Decision Date: 17 November 1976
• Docket Number: No. 2--59103,2--59103
• Citation: 247 N.W.2d 241
• Parties: STATE of Iowa, Petitioner, v. IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY, Joseph Thorton, Magistrate, Respondent.
• Court: Iowa Supreme Court

Page 241

247 N.W.2d 241

STATE of Iowa, Petitioner, v. IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY, Joseph Thorton, Magistrate, Respondent.

No. 2--59103.

Supreme Court of Iowa.

Nov. 17, 1976.

Jack W. Dooley, Johnson County Atty., and Steven K. Ristvedt, Asst. Johnson County Atty., for petitioner.

Reisetter & Megan, Iowa City, for respondent.

Heard by MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and McCORMICK, JJ.

UHLENHOPP, Justice.

This original certiorari proceeding involves the validity of a search warrant. We granted the writ on the petition of the State prior to the trial of a criminal prosecution, after the district court sustained a defense motion to suppress evidence seized under the warrant. See State v. Iowa District Court in and for Linn County, 236 N.W.2d 54 (Iowa).

The case involves three searches, the latter two each growing out of the preceding one. The first one was without a warrant and the latter two were with warrants. Officers seized the evidence in question (marijuana and attendant paraphernalia) in the third search, which was under the second warrant. The validity of that warrant depends on the validity of the first warrant. The validity of the first warrant depends in turn upon the facts stated in the application for that warrant and in the magistrate's endorsed abstract, as well as on the validity of the original search without a warrant. See 79 C.J.S. Searches & Seizures § 74 at 871.

The controlling facts are these. At about 9:50 p.m. on November 5, 1975, two Johnson County deputy sheriffs came upon a 1964 pickup truck proceeding erratically over the center line. The truck turned into a farm drive and stopped. It bore 1974 Minnesota license plates. Deputy Virgil L. Miller testified at the suppression hearing he thought the license plates had expired; the back plate was dented and dirty and the rear truck light was out. Apparently, however, the license plates did in fact have 1975 stickers.

The deputies pulled in behind the truck, alighted, and approached the truck. The truck had two occupants, William Willard, the driver and owner, and Francis Teterud, a passenger. The occupants smelled strongly of alcohol, and the truck contained opened beer bottles. By way of identification, Willard produced his driver's license, which had expired, a discharge from the army, and a release from a federal penitentiary. Teterud could not produce identification at first but did later.

Deputy Miller returned to the county car and ran a 'wants or warrants' check on the two men, with negative results. After making that chech he returned to the truck. At the subsequent suppression hearing he testified:

Q. (Assistant County Attorney) All right. Okay, after running the check and getting the results back, what did you do at that point? A. I then returned to the vehicle and Deputy (Dennis) Claman was standing outside the passenger's side, and we were both observing the subjects and the contents that were plain to our eyes from the outside, and Mr. Willard said to Deputy Claman, 'Would you like to check the vehicle?' At that time Deputy Claman said, 'If you don't mind, yes.' He said, 'By all means, go ahead,' and he lifted the seat up and--

Q. Okay, now, hold it just a minute. Were Mr. Willard and Mr. Teterud at this time inside the vehicle? A. No, they stepped out then.

Q. All right. Was there any request on the part of Deputy Claman as to his asking to search the vehicle? A. Deputy Claman did not ask to search it, Mr. Willard offered. Deputy Claman--he asked Deputy Claman, 'Would you like to check the vehicle?' And Deputy Claman said, 'If you don't mind, yes.'

Q. Okay, and then what did Mr. Willard do at that point? A. Mr. Willard took his--I believe his right hand through the driver's side and lifted up the seat, like so. And you could see the contents behind the seat and on the floor behind the seat.

Q. Okay, now, we're talking about the back seat rest of the truck, or the seat of the seat, I guess? A. Well, the seat is all in one piece, and we're talking about lifting the seat up and we could see the contents that was stuck behind the back-rest part of the seat--

Q. I see. A.--that would not be visible to the eye if it were in normal position.

Q. And what did you observe? A. I observed some pry bars and nail pullers, miscellaneous tools.

Q. Okay, did these have significance to you? A. They did to me. I investigated a break-in a few nights before where we had a blue nail puller used on a door at a rural farm break-in, and this is the same color of paint that we found on the door at the break-in. Also, the nail puller would have matched the description perfectly, the same type of nail puller used to gain entrance at this break-in. Also, there were some tools and a Craig tape player that were observed in the vehicle that matched the description of items taken from a break-in at River Products a few days prior to that.

The deputies also found a small amount of marijuana in the truck.

At a later point in his testimony, Deputy Miller again stated that Willard offered to let the officers check the truck. That later testimony did not vary from his first testimony. Near the conclusion of his testimony he reaffirmed that Willard suggested that the officers search the vehicle. He did not retreat at any point from his testimony on direct. No testimony was introduced contradicting his testimony.

The previous break-in at River Products involved a large amount of tools worth some $7000 and a Craig tape player.

The deputies arrested Willard for intoxication and expired driver's license and arrested Teterud for intoxication; the disposition of those charges does not appear. The deputies did not charge either of the men with operating the truck while under the influence of intoxicants. With assistance, the deputies brought the two men, the tools, and the tape player to headquarters. The two men gave their address as 320 River Street in Iowa City.

Investigation at headquarters revealed that Teterud was on parole to one Ackerman, who appeared at the deputies' request. One Vickroy, who owned the tape player stolen in the River Products break-in, also came to headquarters. He positively identified the tape player as his; it contained a recorded weather report he recognized, and the wires from the batteries were defective so that the player had to be operated on other current. He could not positively identify the tools as from River Products but stated they very possibly could be tools taken from there.

The deputies appeared before the local magistrate and requested a warrant to search the two men's residence for more stolen River Products items. Deputy Miller signed and swore to the application for the warrant stating his source of facts to be 'Personal observation and by previous knowledge by assisting in investigation of River Products B&E.' Attached to the application were a two and one-half page, single-spaced list of the tools and tape player stolen from River Products and a one-page condensation by the sheriff of the same information. On those papers, the only items which corresponded to items found in the truck were a pair of leather gloves, two torch strikers, and the Craig tape player.

Deputy Miller's application named both Willard and Teterud followed by the address, 320 River St., Iowa City, Ia. Deputy Miller also stated in the application:

Observed 1964 Blue Pickup bearing expired Minnesota registration plates. Stopped said vehicle and asked two occupants to exit the vehicle after smelling strong odor of alcohol and observing open beer bottles in vehicle. Driver of vehicle (Willard) admitted owning vehicle and voluntarily gave consent for search of said vehicle. The driver assisted in the search by voluntarily exposing certain burglary tools hidden behind the seat. Said tools similar to those used in several house B&Es concurring on October 29, 1975. Observed under front seat a Craig tape player, said tape player subsequently identified as the one taken in the October 22, 1975 B&E River Products Quarry in Johnson County. Also found numerous tools in the cab and bed of the truck matching description of tools taken also in the River Products B&E. A check of the tire imprints also matched imprints left at the scene of the River Products B&E on October 22, 1975. Also found in the bed of the pickup approximately 2 ounces of brown plant substance found by field presumptive test to be marijuana.

The affidavit of Vickroy was also attached to the application, stating:

I, David M. E. Vickroy, state I am a mechanic employed by River Products Quarry and on October 22, 1975 did have stolen from my possession at River Products one Craig tape player, AM/FM radio combination which did contain one four track cassette on which was recorded a KRNA weather report. Upon being shown the recorder recovered the night of November 5, 1975 by deputy Virgil Miller I could identify it as one similar to that I had previously recorded. I also identified this because of a loose wire I had not fixed previous to the theft and which prevented the radio from operating off of the batteries. The model number matched that of the one stolen from me on the night of the break-in at River Products, October 22, 1975.

In addition, the magistrate heard oral testimony under oath and attached the following abstract to the application:

Virgil Miller. R.R. 1, North Liberty. Deputy Sheriff. Tools used in break ins 10--29--75 left blue paint in areas where entry was gained by prying. Found nail pullers or crow bars in truck with similar color paint. Items underlined or circled on attachments were found in truck. Also 2 torch strikers. Occupants of truck uncommunicative. Parole officer of one confirmed present residence.

David Vickroy. 926 E. Davenport, Iowa City. Employee of River Products. Worked night of break-in until midnight. Left Craig tape player there when leaving. Positively identifies equipment in officer's possession as the item...