State v. Lam

• Decision Date: 23 July 1986
• Docket Number: No. 85-788,85-788
• Citation: 391 N.W.2d 245
• Parties: STATE of Iowa, Appellee, v. Ronald LAM, Appellant.
• Court: Iowa Supreme Court

Page 245

391 N.W.2d 245

STATE of Iowa, Appellee, v. Ronald LAM, Appellant.

No. 85-788.

Supreme Court of Iowa.

July 23, 1986.

Charles L. Harrington, Appellate Defender, and John P. Messina, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Ann DiDonato, Asst. Atty. Gen., and Gary L. Sissel, Asst. Co. Atty., for appellee.

Considered by McGIVERIN, P.J., and SCHULTZ, CARTER, WOLLE and LAVORATO, JJ.

McGIVERIN, Justice.

Defendant Ronald Lam was found guilty by a jury of two counts of second degree burglary in violation of Iowa Code sections 713.1 and 713.5 (1983). Because he also was alleged and shown to be an habitual offender, Iowa Code section 902.8, the trial court sentenced defendant as an habitual offender to no more than fifteen years imprisonment on each count and ordered the sentences to be served consecutively. Iowa Code §§ 901.8 and 902.9(2). Defendant appealed, raising five assignments of error. We affirm.

This is a companion case to State v. Holland, 389 N.W.2d 375 (Iowa 1986), and involves the same burglaries charged there.

On October 30, 1984, the Bettendorf residences of Susan Murphy and Stacy Semenczuk (Murphy apartment) and Darrell DeWitt were burglarized. The Murphy apartment was located within two blocks of DeWitt's residence. Both burglaries occurred during daytime working hours, between 7:15 a.m. and 5:00 p.m. Pieces of jewelry, a revolver and other small portable items were taken. Entry was gained in both cases by prying open the door of the residence with a screwdriver.

On the afternoon of the burglaries, defendant and a co-defendant, Richard Holland, were seen together in a common hallway of the Murphy building. They also were observed together in a parking lot outside of the Murphy apartment where a cream-colored two-door Cadillac was parked. That automobile was later identified as belonging to defendant.

Acting upon information connecting Holland to the Murphy burglary, police officers obtained a warrant for his arrest which specified that he might be found at the residence of defendant's sister, Donna Lam, who was Holland's girlfriend, or in a tan Cadillac.

The search and arrest warrants for Holland were executed at the residence of Donna Lam on November 1. The police obtained Donna Lam's consent to search the premises, and several items of property taken in the Murphy and the DeWitt burglaries were uncovered.

While officers were arresting Holland, defendant unexpectedly arrived on the scene in a cream-colored two-door Cadillac. The officers informed defendant that Holland was under arrest for two counts of burglary and that they were going to make a request from Donna Lam to allow them to search the home.

The officers then noticed that the car defendant was driving fit the description of a car seen outside the Murphy apartment on the day of the burglary. Defendant and Holland were seen jump-starting the automobile in the parking lot. The police also were aware that defendant and Holland "ran together." Therefore, defendant was informed that his vehicle would be seized to have it identified by the witnesses who saw it in the Murphy parking lot. A wrecker came and towed the car to a city pound.

Defendant called the police station the day after the seizure, seeking information about when the car would be released. On November 6, defendant came to the police department and was informed that the car had not yet been identified and that officers wished to search it. Defendant signed a written consent to search which was explained to him by one of the officers.

A search of the automobile then was conducted which revealed a watch that had been taken in the Murphy burglary and a screwdriver. Later, at trial, there was expert opinion testimony that the pry marks on the Murphy apartment door were made by the screwdriver found in defendant's car. The marks left on the door of the DeWitt apartment also exhibited the same class characteristics as the screwdriver. However, because DeWitt's door was wood, there were fewer marks to compare than there were with the metal one from Murphy's apartment. After examining a photograph of the DeWitt door, the expert did find some individual characteristics of the pry marks that matched the screwdriver in question. However, he could not positively identify the screwdriver found in defendant's car as being the one that made the marks.

After the search, defendant was charged with two counts of second degree burglary in connection with the Murphy and DeWitt crimes. Defendant then filed a motion to sever the counts of the burglaries, Iowa Rule of Criminal Procedure 6(1), which was overruled by the trial court. Defendant also sought to have the fruits of the search of his automobile suppressed because he contended that his fourth amendment rights were violated by the seizure of his automobile. This motion also was overruled by the court.

Prior to trial, Darrell DeWitt, the victim of the first burglary, informed the prosecutor that he would be outside the state at the time of defendants' trial and did not want to come back to testify. Apparently, he had to reschedule the trip several times in order to accommodate depositions and a trial continuance granted in the case. No subpoena was issued in an attempt to compel his presence at trial and, over defendant's objection, the State was permitted to introduce DeWitt's videotaped deposition testimony at trial. All parties were present when the deposition was taken and full cross-examination was allowed.

Defendant was convicted of two counts of second degree burglary in violation of Iowa Code sections 713.1 and 713.5. He was sentenced to a term of not to exceed fifteen years imprisonment on each count pursuant to the habitual offender provisions contained in Iowa Code sections 902.8 and 902.9. The sentences were ordered served consecutively.

Defendant appealed, raising five assignments of error. He claims that: 1) the fruits of a warrantless search and seizure of his automobile should have been suppressed; 2) the two burglary charges against him should have been tried separately; 3) Darrell DeWitt, the State's witness, was not unavailable for trial, and, thus, his deposition testimony should not have been admitted; 4) the evidence was insufficient to support submitting one of the burglary charges to the jury; and 5) he was erroneously sentenced as a two-time habitual offender.

I. Warrantless search and seizure of defendant's automobile. A screwdriver, and a gold watch taken in the Murphy burglary, were found during a search of the Cadillac conducted pursuant to defendant's written consent signed six days after the automobile was impounded. Defendant does not contest the validity of his written consent to search; rather, he contends that an unconstitutional seizure of the automobile occurred when it was impounded without a warrant and in the absence of exigent circumstances. Accordingly, defendant asserts that the unconstitutional seizure tainted the subsequent consent search, and, therefore, the trial court should have suppressed the evidence found in the automobile. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963).

Because defendant claims the search violated his fourth amendment constitutional rights, a de novo standard of review applies. State v. Cullor, 315 N.W.2d 808, 810 (Iowa 1982).

We begin our analysis by acknowledging that the towing of defendant's automobile to the police lot constituted a seizure within the meaning of the fourth amendment of the United States Constitution. See Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct. 2464, 2470-71, 41 L.Ed.2d 325, 336 (1974). Generally, a search or seizure conducted without a warrant is "per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (footnote omitted); see Cullor, 315 N.W.2d at 811. Among these is the "automobile exception" set forth by the Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Since Carroll, the Supreme Court has addressed the parameters of the automobile exception in numerous cases, including Cardwell v. Lewis. In Cardwell, the Court upheld the warrantless seizure of an automobile lawfully parked in a public place. This warrantless seizure was upheld on the grounds that the police had probable cause to believe that the car was evidence of a crime and that prompt action was necessary because members of the defendant's family might remove it. 417 U.S. at 593-96, 94 S.Ct. at 2470-72, 41 L.Ed.2d at 336-38.

Emphasizing the inherent mobility of vehicles and the reduced expectation of privacy accorded to them, the Supreme Court recently upheld the warrantless search of a lawfully parked, but fully mobile motor home under the automobile exception. California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). There, the Court stated:

In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

Id. at ----, 105 S.Ct. at 2070, 85 L.Ed.2d at 414.

The Court's decision makes it clear that under the automobile exception which was created in recognition of the decreased expectation of privacy accorded to a vehicle and the exigencies associated with it, a warrantless search of a vehicle may be made if the authorities have probable cause. It follows from this premise that a warrantless seizure of a vehicle based on probable cause and exigencies would fall within the automobile exception to the warrant requirement.

Here, police officers had probable cause to associate the Cadillac with criminal activity. It was seen backed into a...