State v. Luter

Citation346 N.W.2d 802
Decision Date14 March 1984
Docket NumberNo. 83-45,83-45
PartiesSTATE of Iowa, Appellee, v. Cleo LUTER, Appellant.
CourtUnited States State Supreme Court of Iowa

Jon M. Kinnamon and Jerald W. Kinnamon of Kinnamon, Kinnamon, Russo & Meyer, Cedar Rapids, and Walter D. Braud and Anthony Jamison of Braud, Warner, Neppl & Westencee, Ltd., Rock Island, Ill., for appellant.

Thomas J. Miller, Atty. Gen., Mary Jane Blink, Asst. Atty. Gen., and Denver D. Dillard, County Atty., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, LARSON, CARTER, and WOLLE, JJ.

UHLENHOPP, Justice.

This appeal involves legal issues which arose in a prosecution on charges of possession of heroin and cocaine with intent to deliver and possession of a firearm by a felon.

On February 23, 1982, three officers concerned with investigating controlled substance violations, one of whom was Agent R.J. Smith, presented sworn informations to a judge for warrants to search, so far as we are now concerned, the residence of defendant Cleo Luter in Cedar Rapids, Iowa, and a Lincoln car used by Luter and registered to his mother. In addition to the residence, Luter owned a tavern and a red and black van.

Each information alleged in substance the following. Affiants are officers assigned to narcotics and drug law enforcement. A confidential informant advised that Luter sold him heroin at Luter's residence. The informant has provided names, addresses, telephone numbers, and types of vehicles of other heroin sellers in the area which the informant obtained by personal contact and association with those persons; affiant Smith verified this data through public records, information from the Cedar Rapids Narcotics Unit, criminal history records, and surveillance of the addresses provided. Intelligence provided by the informant led to the arrest of eight individuals on controlled substance charges. On two occasions affiants supervised the undercover purchase of heroin from Luter at his tavern, the Players Palace. On one of those occasions the confidential informant was searched and then fitted with a voice transmitter and provided with government funds; the informant met with a known heroin user and asked if he had any heroin to sell; the user responded negatively; the informant and user went to Players Palace to buy heroin from Luter; affiant Smith observed the user enter Players Palace and return shortly to the informant, and heard the user tell the informant, "Cleo sure has good dope. You know he has 2 kinds--the best for the Blacks and the other stuff for the Whites. You know I always got the best."; affiants followed the informant and user away from the area and received the heroin from the user; and during the purchase from Luter by the user, Luter's red and black van was parked in front of Player's Palace. Affiant Smith also supervised the informant while the informant and a known heroin user bought heroin from Luter at his residence within the previous seventy-two hours; in this instance affiant Bruce Kern observed the user drive to the Luter residence, enter the fenced-in yard, go to the rear of the residence, and return shortly; affiant recited facts substantially like those with respect to the described purchase at Players Palace; in addition the user was heard to tell the informant he bought the heroin from Luter; and on this occasion the Lincoln car used by Luter was parked beside the residence. Confidential informants and information from the Cedar Rapids Metro Narcotics Unit indicate that Luter uses the Lincoln and van while trafficking in controlled substances. A confidential informant advised that Luter sold him heroin at Luter's residence. Affiant Smith has established surveillance at Luter's residence, observed Luter enter and leave the building, and also observed known heroin users enter and leave the building, staying only a few minutes. Luter was previously arrested for conspiracy to deliver heroin and the charge was dismissed; he was also arrested for delivery of a controlled substance, with no disposition of the case.

The judge also endorsed on the informations the following sworn statements by Smith: the informant has a prior record, was not under the influence of alcohol or drugs at the time he provided the information, and is an adult; the eight cases mentioned in the information are still pending; no current charges are pending against the informant; and no promises of immunity were made to him.

The judge issued the search warrants.

At no point in the search warrant proceedings or in the subsequent proceedings to suppress were the identities of the informant or the user disclosed by the officers.

Section 808.6 of the Iowa Code prescribes the "knock and announce" rule. See State v. Farber, 314 N.W.2d 365 (Iowa 1982). Agent Smith, however, did not proceed in that manner. Armed with the warrants, Smith and other officers established surveillance at Luter's residence on the morning of February 25, 1982. Presently Luter emerged from the house, entered the Lincoln, and drove to a filling station. The officers followed. At the station Smith approached the Lincoln on the passenger side and, through the car window, observed two thirty-five millimeter film canisters in the open ashtray of the car. According to the evidence, "individuals commonly use film canisters to transport controlled substances." Smith then entered the Lincoln on the passenger side and instructed Luter to drive to his residence and unlock it because the officers intended to search it pursuant to a warrant. Luter and Smith proceeded to the residence, as did the other officers.

At the residence the individuals got out of the cars and Lieutenant Schutly stood with Luter while Smith went to get Officer Kidwell, the identification officer, to photograph the canisters in the ashtray. Kidwell had not yet arrived and Smith returned to the Lincoln. The canisters were then missing from the ashtray. At that time Luter was at the house, and Smith proceeded there. The two walked down the steps toward the Lincoln, but Luter started running. Smith followed. Luter removed the canisters from his pocket and threw them. Smith tackled Luter, placed him under arrest, and handcuffed him. Meantime Detective Stephens looked for the canisters, found them on the ground, and had them logged for identification. Subsequent tests disclosed that one canister contained four heat-sealed plastic bags of cocaine and one such bag of diazepam (a controlled substance), and one finger cot of heroin. The other canister contained four tin-foil packets and four finger cots of heroin. The evidence shows that finger cots are commonly used to store controlled substances.

The officers proceeded to search the house. They discovered and seized:

Five packages of Dormin, each package containing seventy-two Dormin pills. According to the evidence Dormin is commonly used by drug dealers, as distinguished from drug users, as "extenders"--to cut the drug and thus increase the volume for sale.

One empty Dormin bottle in a waste basket and one empty finger cot on a closet floor.

Two scales, one of regular ounce size and one of gram size.

One empty quinine bottle. Quinine is commonly used as an extender and gives a bitter taste which drug users equate with quality.

Straws--commonly used to "snort" cocaine.

Mirrors--commonly used in cutting cocaine on a shiny surface.

Razar blades--commonly used to cut a substance for mixing.

Measuring spoon with powdery residue, approximately gram size commonly used to measure cocaine; and playing card, commonly used to level off measuring spoon.

Glass smoker, commonly used to smoke hashish or marijuana.

Unopened box of a gross of finger cots.

Wrappers of finger cot containers, in garbage.

Baggies with powdery residue inside.

Bits of plastic, commonly used for wrapping controlled substances.

"Pot" pipe.

Pipe of kind used for "freebasing" cocaine.

Sno-Seal of kind sold at head shops.

Glass flasks of kind used to contain controlled substances.

Sifter, containing powdery residue.

Pseudo Caine, commonly used cocaine extender.

Paper squares of kind used to wrap cocaine.

Packet of heroin, found in container in pocket of jacket hanging in bathroom.

Loaded shotgun beside filing cabinet.

Loaded shotgun beside Luter's bed.

In subsequent proceedings the county attorney charged Luter with possession with intent to deliver both heroin and cocaine, and with possession of a firearm as a felon. At trial the State introduced the evidence we have recited from the search incident and evidence that Luter had been previously convicted of a felony. Luter testified he was a user of controlled substances but not a seller. The jury found Luter guilty on all counts, the trial court passed sentence, and Luter appealed.

I. Luter moved before trial to suppress the real evidence, the district court overruled the motion, and Luter unsuccessfully endeavored at trial to exclude that evidence. On appeal he first contends that (1) the search and the seizure were illegal and (2) the search warrants were invalid as based on affidavits (a) lacking proof as to the knowledge and credibility of the unidentified person who provided the information and (b) containing falsification as to the source of that information.

Luter argues that the entire search and seizure were illegal because the judge did not have probable cause to issue a warrant to search the Lincoln. Luter's argument continues that the search of the Lincoln under an invalid warrant led to the seizure of the canisters.

The State argues in opposition that the canisters were not seized under the warrant to search the Lincoln; Smith did not stop the Lincoln, Luter himself stopped it at a filling station; Smith had a right to be there; he did not discover the canister from a search of the Lincoln, he saw the canisters from outside the car; nor did he seize the canisters from the car. See W. LaFave,Search and Seizure § 2.5, at 355 (19...

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