State v. Leto, No. 64359

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLARSON
Citation305 N.W.2d 482
PartiesSTATE of Iowa, Appellee, v. Thomas J. LETO, Appellant.
Decision Date13 May 1981
Docket NumberNo. 64359

Page 482

305 N.W.2d 482
STATE of Iowa, Appellee,
v.
Thomas J. LETO, Appellant.
No. 64359.
Supreme Court of Iowa.
May 13, 1981.

Page 484

Martha Shepard, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina, Asst. Atty. Gen., and Dan L. Johnston, Polk County Atty., for appellee.

Considered by HARRIS, P. J., and ALLBEE, McGIVERIN, LARSON and SCHULTZ, JJ.

LARSON, Justice.

The defendant Thomas J. Leto has appealed from his conviction of second-degree theft under sections 714.1(4) and 714.2(2), The Code 1979, arising from his possession of a stolen van. He contends the court erred in (1) refusing to suppress evidence seized under a search warrant; (2) refusing to sustain his motions for mistrial and to strike, based upon the State's introduction of evidence of his inculpatory statements not divulged prior to trial, as required by Iowa Rule of Criminal Procedure 13; and (3) admitting evidence of other crimes. We affirm the trial court.

I. The Search Warrant.

The search warrant was issued on the application of Officer Paul Womack, who furnished his own affidavit and statements of Paula Mohr, an informant. Various items of evidence relating to stolen vehicles were seized under the warrant. The defendant challenges the search warrant on two grounds: (1) the facts contained in the search-warrant affidavit of Officer Womack were insufficient to establish probable cause because no illegal activities were described, and there was no evidence that the items to be seized were located at the defendant's residence at the time of the search; and (2) it allowed the searching officers to conduct a general search.

A. Probable cause.

In addressing the question of the sufficiency of the underlying facts shown for the issuance, we first note the well-established principles which apply. An unlawful search will preclude the use at trial of all evidence obtained in the search or through leads uncovered by the search. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453 (1963). Because the defendant contends the search warrant was invalid under the fourth amendment, this court's scope of review is de novo, and we make an independent evaluation of the totality of the circumstances. State v. Hall, 297 N.W.2d 80,

Page 485

89 (Iowa 1980). Probable cause exists for the issuance of a search warrant "when the facts and circumstances presented to the judicial officer are sufficient in themselves to justify the belief of a reasonably cautious person that an offense has been or is being committed." State v. McManus, 243 N.W.2d 575, 579 (Iowa 1976); accord, State v. Post, 286 N.W.2d 195, 199 (Iowa 1979); State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976). While probable cause requires more than a "mere suspicion" of criminal activity, State v. Swartz, 244 N.W.2d 553, 554 (Iowa 1976), State v. Birkestrand, 239 N.W.2d 353, 357 (Iowa 1976), or "innocent-appearing activity", State v. McManus, 243 N.W.2d at 579; State v. Post, 286 N.W.2d at 200, "there is a large difference between" proof of guilt and proof of probable cause. Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 1889 (1948); Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364, 367 (1813) ("the term 'probable cause' ... means less than evidence which would justify condemnation"). In marginal cases a search conducted pursuant to a warrant may be constitutional even though one conducted without a warrant may be invalid. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684, 687 (1965) ("(a)lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants").

Officer Womack, in his affidavit accompanying the search-warrant application of June 21, 1979, stated: 1

1. On 6/12/79 I personally observed at 5758 N.E. 29th Street, Polk County, four complete stolen vehicles and parts of bodies from numerous others; specifically, a dark brown 1976 CJ5 Jeep, VIN # J6F83AA014054, which had been reported stolen four days earlier; license plate attached to same registered to Thomas L. Wagner.

2. Also observed at above address, a 1978 silver Ford van stolen from Ankeny, Iowa, 7/6/78, Serial No. E14HHCF3241; said vehicle parked next to the above-listed jeep.

4. That affiant's investigation reveals that Mr. Leto operates a body repair business including painting and welding of damaged vehicles.

5. That personal observation of numerous vehicles recovered at 5758 N.E. 29 th Street revealed that many parts of same had been welded and interchanged.

6. Arrest warrants have been issued for Mr. Proctor of 5758 N.E. 29th and Mr. Wagner whose license plate was discovered on the stolen jeep recovered at Proctor's residence.

Additional information was provided by Paula Mohr, an informant, whose evidence was related by Officer Womack in his application:

1. That Paula Mohr is registered owner of 1976 CJ5 Jeep (listed above). That she had same repaired by Mr. Leto at address listed herein on or about June 4, 1979.

2. That said jeep was stolen on or about June 8, 1979.

3. That on May 25, 1979, she was a passenger in a van driven by Mr. Leto to Wisconsin. During said trip, Mr. Leto stated that van was recently acquired and that he had rebuilt it from salvage. She observed a CB radio and tape deck wired together attached to the cigarette lighter.

4. That on or about 6/13/79 she identified her stolen 1976 CJ5 Jeep, which was in police custody, and she also advised police that the van referred

Page 486

to above was also in their custody, along with the Jeep.

5. That after arrival with Leto to Wisconsin in van, Leto introduced her to Proctor (all supra).

The defendant argues that the facts related in the application were insufficient for issuance of the warrant because they create only a "mere suspicion" of criminal activity. See Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 642-43 (1969). He notes the absence of any evidence in the affidavit that he had "knowledge of the van's heritage," viz., that the van was stolen by Wagner almost a year earlier. It is true that section 714.1(4) requires the State to prove at trial that Leto knew or had reasonable cause to believe the property was stolen. However, the element of knowledge need not be "proven" in the application. As stated above, the test for probable cause is whether the facts shown justify the belief of a reasonably, prudent person that a crime has been committed; the supporting affidavit need not contain sufficient information to sustain a conviction. See Brinegar v. United States, 338 U.S. at 173, 69 S.Ct. at 1309, 93 L.Ed. at 1889.

Leto also argues that the facts alleged were innocent in appearance, and therefore presumed to be innocent, citing State v. Boer, 224 N.W.2d 217, 221 (Iowa 1974). Boer, however, did not hold that innocent appearing activities must be disregarded in assessing probable cause; it held that they could not supply the requisite independent support of an officer's conclusory statements of grounds for the issuance of the warrant. Id. at 220-21. That is not the case here. The affidavit shows a large-scale auto theft operation involving Wagner and Proctor. Leto's involvement in it can be inferred from his possession of the stolen van and his suspect statement to Mohr concerning his acquisition and rebuilding of it. Also, Leto is shown by the affidavit to be a body repairman, a skill necessary to an auto theft operation, and that he worked on Paula Mohr's jeep within one week of its theft.

When viewed in a "common sense" manner, United States v. Ventresca, 380 U.S. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 688; State v. Paschal, 300 N.W.2d 115, 118 (Iowa 1981), we believe the facts set out in the affidavit were sufficient for issuance of the warrant. When they are viewed collectively, the facts create more than "mere suspicion." They are sufficient to justify the belief of a reasonably cautious person that an offense has been committed.

The warrant was issued and executed for the defendant's residence and curtilage. The defendant claims there was no showing that the items to be seized were located at his residence at the time of the search. Probable cause must exist to search the particular premises: there must be a "nexus between the items to be seized and the place to be searched," as may be culled from "the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property." United States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976) (quoting United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970)); see State v. Post, 286 N.W.2d at 199; State v. Iowa District Court, 247 N.W.2d 241, 248-49 (Iowa 1976) (reasonable inference that stolen property kept at suspect's residence). Leto's repair shop was located at his house: It was reasonable to infer the stolen property would be located there.

B. Scope of the warrant: the particularity requirement.

The warrant permitted a search for these items:

Red 1979 Bronco, VIN # U15SLDG9487

Bronco or parts thereto, VIN # U15HLDG0619

Motor vehicle titles from stolen or salvaged vehicles

Towing bills and receipts

V.I.N. number tags

License plates

Vehicle registrations

Bills of sale; this and all of the above from stolen or salvaged vehicles

Page 487

Stereo radio and VIN # Tag J6F83AA014054 from a 1976 jeep, CJ5

Custom made stereo speakers to above-listed stereo

CB radio and tape deck jointly wired for use with the cigarette lighter

The defendant contends the warrant was too general and, in effect, was a fishing license for his premises. He relies on Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965),...

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24 practice notes
  • State v. Swaim, No. 86-419
    • United States
    • United States State Supreme Court of Iowa
    • September 23, 1987
    ...(Iowa 1986). Our task is to consider the totality of the circumstances surrounding issuance of the challenged warrants. State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). We are guided in this examination by fundamental principles, chronicled here from our opinion in State v. Seiler, 342 N.W.2......
  • State v. Fremont, No. 06-1443.
    • United States
    • United States State Supreme Court of Iowa
    • May 2, 2008
    ...is subject to suppression. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). E. Avoidance of Exclusionary Rule through Harmless Error. The State urges that the district court was correct when it hel......
  • State v. Thomas, No. 94-1765
    • United States
    • United States State Supreme Court of Iowa
    • November 22, 1995
    ...activity, the things to be seized, and the place to be searched. State v. Seager, 341 N.W.2d 420, 427 (Iowa 1983); State v. Leto, 305 N.W.2d 482, 486 (Iowa 1981). This nexus may be established by consideration of the nature of the alleged crime and items to be seized, the defendant's opport......
  • State v. Baldwin, No. 85-449
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1986
    ...illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561, 571 (1974); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). Law enforcement personnel may conduct a reasonable inventory of the contents of a lawfully impounded vehicle without eithe......
  • Request a trial to view additional results
24 cases
  • State v. Swaim, No. 86-419
    • United States
    • United States State Supreme Court of Iowa
    • September 23, 1987
    ...(Iowa 1986). Our task is to consider the totality of the circumstances surrounding issuance of the challenged warrants. State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). We are guided in this examination by fundamental principles, chronicled here from our opinion in State v. Seiler, 342 N.W.2......
  • State v. Fremont, No. 06-1443.
    • United States
    • United States State Supreme Court of Iowa
    • May 2, 2008
    ...is subject to suppression. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). E. Avoidance of Exclusionary Rule through Harmless Error. The State urges that the district court was correct when it hel......
  • State v. Thomas, No. 94-1765
    • United States
    • United States State Supreme Court of Iowa
    • November 22, 1995
    ...activity, the things to be seized, and the place to be searched. State v. Seager, 341 N.W.2d 420, 427 (Iowa 1983); State v. Leto, 305 N.W.2d 482, 486 (Iowa 1981). This nexus may be established by consideration of the nature of the alleged crime and items to be seized, the defendant's opport......
  • State v. Baldwin, No. 85-449
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1986
    ...illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561, 571 (1974); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). Law enforcement personnel may conduct a reasonable inventory of the contents of a lawfully impounded vehicle without eithe......
  • Request a trial to view additional results

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