State v. Lampson

• Decision Date: 07 March 1967
• Docket Number: No. 52261,52261
• Citation: 149 N.W.2d 116,260 Iowa 806
• Parties: STATE of Iowa, Appellee, v. Jack Eugene LAMPSON, Appellant.
• Court: Iowa Supreme Court

Page 116

149 N.W.2d 116

260 Iowa 806

STATE of Iowa, Appellee, v. Jack Eugene LAMPSON, Appellant.

No. 52261.

Supreme Court of Iowa.

March 7, 1967.

Whitesell Law Firm, Iowa Falls, for appellant.

Lawrence F. Scalise, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Allen M. Oppen, County Atty., Eldora, for appellee.

MASON, Justice.

Defendant, Jack Eugene Lampson, found guilty on his plea of guilty to breaking and entering as charged by county attorney's information, was sentenced by the Hardin County district court to the state penitentiary at Fort Madison for a term not to exceed ten years. Section 708.8, Code, 1966.

In his appeal defendant contends the trial court erred in overruling his motion to suppress evidence seized under a search warrant and that his plea of guilty was not voluntary but resulted from coercion and threat of additional punishment.

I. January 9, 1966, the proprietor of a food store in Union discovered his place of business had been broken into and entered in the night apparently by forcing a door of the building. He ascertained that certain money, merchandise, some keys and an automatic pistol were missing.

January 11 the Des Moines police made an investigation of some activity at a motel on Fleur Drive in that city and discovered defendant and three others registered. The police had obtained a search warrant for the motel unit and recovered from the people there a certain amount of loose money and an automatic pistol which was subsequently identified by the proprietor of the food market. The police also had a search warrant for defendant's automobile and in the course of searching it found certain tools, pliers, prybars and other instruments which they took and in due course forwarded to the F.B.I. in Washington. The laboratory analysis indicated the marks on the door were made by the tools found in defendant's automobile.

January 13, as the result of a preliminary information filed in justice court of Hardin County, a warrant of arrest was issued for defendant. When taken before the magistrate on January 18, defendant requested a continuance in order to obtain counsel. Bond was set and the matter continued to January 22. On this date after a preliminary hearing at which defendant was represented by retained counsel, he was held to answer the charge and bound over to the district court. Appearance bond was fixed.

During his confinement in the county jail defendant was represented by three separate counsel, the first two appointed by the court and the third privately employed by defendant. This attorney also appeared for defendant in all district court proceedings.

II. Defendant was arraigned in district court February 11 and entered a plea of not guilty. He then filed a motion to suppress search warrant and a hearing was held February 21. At this hearing officer Ray E. Steiner of the Des Moines police department testified he had submitted an information and application for search warrant to a judge of the Des Moines municipal court. He told of informing the court, while under oath, how he obtained the information in regard to the application for the search warrant. This information had been given to the officer by an informant whose name he gave the court. Steiner advised the court the informant had been very reliable in the past and had been used on numerous occasions. The officer testified he personally had had dealings with the informant and the information received from him was reliable on at least four occasions. He testified, 'We always come out with just exactly what the information was that was furnished by the informant.'

The officer told the judge about defendant's car, the year, color and that the license, plates had been removed. Steiner detailed the people's appearances, they were dirty looking, the woman had a black eye and one of the men had the appearance of having been in a fight. They had been seen at the motel around 5:30 a.m. The people had been heard counting a large amount of change in the room and there was some conversation about the money and whether all the people should stay in one room or split up. The motel involved did not have a reputation of catering to dirty, beat-up individuals. Steiner testified he regarded the circumstances as suspicious and so conveyed that impression to the judge.

The officer was not acquainted with the defendant's name at the time he applied for the search warrant and placed the name in the affidavit after he learned his name. The affidavit was presented to the judge before Steiner had ever seen defendant and he was advised by the judge to fill in the name.

On February 24 the court overruled defendant's motion to suppress.

III. The first error assigned is that the search warrants were obtained without probable cause and on the strength of Steiner's affidavit made without knowledge or information but based solely upon information furnished by an informant.

A similar proposition was urged and rejected in State v. Hall, 259 Iowa ---, 143 N.W.2d 318. At page 321 of 143 N.W.2d we quote this from United States v. Ventresca, 380 U.S. 102, 107--108, 85 S.Ct. 741, 745--746, 13 L.Ed.2d 684, 688--689:

'While a warrant may issue only upon a finding of 'probable cause,' this Court has long held that 'the term 'probable cause' * * * means less than evidence which would justify condemnation,' Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (367), and that a finding of 'probable cause' may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (331). As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1889), 'There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.' Thus hearsay may be the basis for issuance of the warrant 'so long as there (is) a substantial basis for crediting the hearsay.' Jones v. United States, supra, 362 U.S. (257), at 272, 80 S.Ct. (725), at 736 (4 L.Ed.2d 697 at 708, 78 A.L.R.2d 233). And, in Aguilar we recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved 'whose identity need not be disclosed * * * was 'credible' or his information 'reliable. " Aguilar v. State of Texas, supra, 378 U.S. (108), at 114, 84 S.Ct. (1509), at 1514 (12 L.Ed.2d 723 at 729).

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.'

Preceding the above quotation the Supreme Court made these statements we believe are also relevant, at pages 105--107 of 380 U.S., pages 744--745 of 85 S.Ct.:

'We begin our analysis of this constitutional rule mindful of the fact that in this case a search was made pursuant to a search warrant. In discussing the Fourth Amendment policy against unnecessary invasions of privacy, we stated in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723:

"An evaluation of the constitutionality of a search warrant should begin with the rule that 'the informed and deliberate determinations of magistrates empowered to issue warrants * * * are to be preferred over the hurried action of officers * * * who may happen to make arrests.' United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877. The reasons for this rule go to the foundations of the Fourth Amendment.' 378 U.S., at 110--111, 84 S.Ct., at 1512.

'In Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, the Court, in condemning searches by officers who invaded premises without a warrant, plainly intimated that had the proper course of obtaining a warrant from a magistrate been followed and had the magistrate on the same evidence available to the police made a finding of probable cause, the search under the warrant would have been sustained. Mr. Justice Jackson stated for the Court in Johnson:

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's...