State v. Johnson, 85-1697

• Decision Date: 27 August 1986
• Docket Number: No. 85-1697,85-1697
• Citation: 395 N.W.2d 661
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Vernis Jean JOHNSON, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 661

395 N.W.2d 661

STATE of Iowa, Plaintiff-Appellee, v. Vernis Jean JOHNSON, Defendant-Appellant.

No. 85-1697.

Court of Appeals of Iowa.

Aug. 27, 1986.

Charles Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and Thomas J. Ferguson, Asst. Black Hawk County Atty., for plaintiff-appellee.

Considered by DONIELSON, P.J., and SCHLEGEL, and SACKETT, JJ.

SACKETT, Judge.

Defendant Vernis Jean Johnson appeals from her conviction of possession of a controlled substance with intent to deliver in violation of Iowa Code § 204.401(1)(b) (1985). Defendant asserts the district court erred in overruling defendant's motion to suppress evidence obtained as a result of a warrantless arrest allegedly made without probable cause. We affirm.

In May, 1985, a doctor reported to Waterloo police that she suspected three women were fraudulently obtaining the prescription drug Ritalin from her and other area doctors. A local pharmacist had informed the doctor that the three women had come to the pharmacy in one vehicle. The doctor told police the three suspicious patients had given the names Hazel McKinney, Janet Welles and Brenda Johnson. Each woman had told the doctor they were from out of state and their children needed Ritalin because they were diagnosed as hyperactive.

Waterloo Police Officer Allen Holmes investigated the information which the women had given the doctor. He found that different persons lived at the addresses which the women had given the doctor and the utilities were not listed in their names. In addition, the persons at those addresses told Holmes they had never heard of the three women.

On June 17, 1985, the doctor notified police that McKinney had called for an appointment for the following day. McKinney was subsequently arrested outside the doctor's office when she picked up the prescription. She made a statement to police implicating defendant and Welles, whose name is actually Joyce Hill. McKinney told police defendant and Welles were from Omaha, Nebraska, and gave police a description of each woman. McKinney also told police defendant had started her in getting Ritalin. McKinney stated after getting Ritalin prescriptions filled she would sell the drugs to defendant who in turn resold the Ritalin.

A few days later the doctor notified police that Welles had made an appointment for June 20, 1985. After confirming the address Welles gave the doctor was fictitious, police set up surveillance of the doctor's office.

From the window of the doctor's office at St. Francis Hospital the police saw defendant and Welles pull into the parking lot in a vehicle with white out-of-state license plates. The police officers were too far away to identify the state named on the license plates. After the police observed defendant and Welles get out of the vehicle and enter the building three officers positioned themselves in the doctor's office. One officer waited in the hall, one officer sat in the waiting room and the third officer was in a hallway near the front desk so he could hear what was said at the front desk without being seen.

Welles went into the doctor's office for her appointment while defendant waited in the hall. Defendant paced outside the office for a while and then went in. After Welles verified her information in the doctor's records she was given the Ritalin prescription and defendant and Welles left the doctor's office together.

Police officers then approached defendant and Welles in the hallway and identified themselves. Officer Holmes asked Welles to identify herself. When Welles gave an address which Holmes recognized as fictitious he told Welles he knew she did not reside at that address. Meanwhile Officer John Daws asked defendant to identify herself and she responded that her name was Jean Johnson. Daws then asked whether her name was Vernis Jean Johnson and defendant repeatedly answered "why?" At that point both women were arrested and taken to the police station.

Defendant was given her Miranda warnings. She then made an oral and written statement admitting she, Welles, and others were involved in illegally obtaining prescription drugs for resale. A post-arrest search of defendant and her personal effects revealed prescriptions, pharmacy sheets, a large amount of cash and other incriminating evidence.

Defendant was charged by trial information and she filed a motion to suppress all evidence seized as a result of the warrantless arrest. She argued that the arrest had been made without probable cause in violation of her constitutional rights and therefore its fruits were inadmissible. The district court overruled defendant's motion.

After trial to the district court, defendant was convicted of possession of a controlled substance with intent to deliver. This appeal followed.

I.

Because we are confronted with an alleged constitutional violation, we resolve the issue by making our own independent evaluation of the totality of the circumstances. State v. Conger, 375 N.W.2d 278, 279 (Iowa App.1985); State v. Losee, 353 N.W.2d 876, 878 (Iowa App.1984). Our review is de novo. State v. Hilleshiem, 291 N.W.2d 314, 316 (Iowa 1980). The burden is on the state to show the officer making the arrest had reasonable ground for believing an indictable offense has been committed and has reasonable ground for believing the person to be arrested has committed the offense. Iowa Code § 804.7(3) (1983). In determining whether the district court erred in overruling the motion to suppress we may consider not only evidence adduced in the motion to suppress but also later trial testimony. State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976).

II.

The essential purpose of the fourth amendment search and seizure proscription is to impose a standard of reasonableness upon the exercise of discretion by law enforcement officials in order to safeguard privacy and security of individuals against invasion. Losee, 353 N.W.2d at 878. The initial balancing of interests the court employ to determine whether a seizure is reasonable is whether the officer's action, in the sum of its form, scope, nature, incidents and effect, appears fundamentally unfair or unreasonable in the specific situation. Id.

A. Defendant argues her fourth amendment rights were violated when police arrested her without having probable cause and therefore evidence which police obtained in a post-arrest search of defendant and her personal effects should have been suppressed as a by-product of an unconstitutional arrest. Defendant also appears to argue her arrest was illegal because the police did not know her name at the time they stopped her for identification and arrested her.

The fourth amendment's protection against unreasonable intrusions on a person's liberty arises when an officer seizes a person. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968); State v. Gully, 346 N.W.2d 514, 516 (Iowa 1984). If there is no detention--no seizure within the meaning of the fourth amendment--then no constitutional rights have been infringed. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983). A seizure occurs only when an officer by means of physical force or show of authority has in some way restrained the liberty of a citizen. Harlan, 301 N.W.2d at 719.

"[N]ot all personal intercourse between policemen and citizens involves 'seizure' of persons" that implicate the fourth amendment. State v. Harlan, 301 N.W.2d 717, 719 (Iowa 1981) (citing Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 N. 16, 20 L.Ed.2d at 905 n. 16.) In Royer, the court explained:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in a public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence a criminal prosecution his voluntary answers to such questions.

Royer, 460 U.S. at 497, 103 S.Ct. at 1324, 75 L.Ed.2d at 236.

A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. State v. Peck, 329 N.W.2d 680, 683 (Iowa App.1982) (quoting State v. Donnell, 239 N.W.2d 575, 577 (Iowa 1976)). Circumstances exist to make an investigatory stop where an officer observes unusual conduct which leads the officer reasonably to conclude in light of experience that criminal activity may be afoot. Peck, 329 N.W.2d at 683 (quoting Donnell, 239 N.W.2d at 577). The fourth amendment does not require an officer who lacks the precise level of information necessary for a probable cause arrest to simply shrug his shoulders and allow a crime to occur. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972).

In the instant case the officers did not act inappropriately in stopping defendant and Welles. The police officers merely stopped defendant and Welles outside the doctor's office to ask them to identify themselves. The officers did not use physical force or...