State v. Osborn

• Decision Date: 19 September 1972
• Docket Number: No. 54973,54973
• Citation: 200 N.W.2d 798
• Parties: STATE of Iowa, Appellee, v. Gerald W. OSBORN, Appellant.
• Court: Iowa Supreme Court

Page 798

200 N.W.2d 798

STATE of Iowa, Appellee, v. Gerald W. OSBORN, Appellant.

No. 54973.

Supreme Court of Iowa.

Sept. 19, 1972.

David W. Newell, Muscatine, for appellant.

Richard C. Turner, Atty. Gen., Robert D. Jacobson, Asst. Atty. Gen., Garry D. Woodward, County Atty., for appellee.

MASON, Justice.

Gerald W. Osborn was charged by county attorney's information with the crime of burglary without aggravation contrary to section 708.3, The Code. He appeals from the sentence on a jury verdict convicting him of the crime charged.

At the time of the incident giving rise to this prosecution, Thomas Rock and his wife Sue lived in a farmhouse approximately four miles north of Muscatine. They leased the house; Paul Satterthwaite, Mrs. Rock's uncle who lived nearby, farmed the land.

April 18, 1971, Satterthwaite had been plowing in a field adjacent to the Rock house. About 7 p.m. he noticed an automobile go into the Rock driveway. After the car had been there an estimated 15 to 20 minutes, Satterthwaite started towards the house to investigate since he knew Rocks were not at home. As he approached the house the car which had attracted his attention was driven out of the driveway and headed north on a county road. Satterthwaite made an effort to get the license number of the vehicle as it passed him. He was unable to do so but did recognize the car as a 1963 or 1964 bluish-gray General Motors product with one headlight out and part of the taillight lens missing. The witness also observed three people in the front seat.

Satterthwaite proceeded to the house and discovered there had been a break in. He telephoned Mrs. Satterthwaite, the Rocks and the Muscatine county sheriff's office. When the sheriff arrived at the scene Satterthwaite described the car and related what he had observed.

Mr. Rock and his wife arrived at their home approximately five minutes after the sheriff. Mrs. Rock was asked to start checking to determine what, if anything, was missing from the home. In the meantime the sheriff and Satterthwaite went into the yard to discuss what had happened. As the two men were talking a car fitting the description given by Satterthwaite passed by headed south toward Muscatine.

The sheriff proceeded to follow the car. The moment he was able to get the license number the officer radioed to have the registration checked. After receiving information that the car, a blue over green Pontiac, four-door sedan, was registered to James Roswell Nott, the sheriff turned on his red light and pulled the car over to a stop about two miles from Rocks. As the sheriff approached the car to examine the operator's license, the driver, James Nott, stepped out of the vehicle to produce his driver's license. The sheriff saw Charles Nott, James' brother, and defendant in the front seat. The officer told James Nott he had stopped him because he had reason to believe 'you fellows were involved in a farm theft back up the road.'

While the sheriff was checking Nott's license, he observed merchandise in the back seat and on the back floorboards of the car. He asked Nott if he had any objection to his looking in the rear seat. When Nott stated he had none, the sheriff walked to the opposite side of the car, opened the back door and with the aid of his flashlight looked in a sack on the floorboards. It contained an egg carton, a package that appeared to be meat wrapped in white paper, a jar of cheese and some silverware. At this time the sheriff had no knowledge of what was missing from the Rock residence.

The sheriff returned to his own car and radioed his office to call the Rock residence and inquire what, if anything, was missing. He received word the only thing found missing at the time was a pound of Cloverfarm butter. The sheriff had observed such an item among the articles in the Nott car but did not make an arrest. The sheriff advised Nott he could go ahead and if he wanted to talk to Nott later he knew where to find him. Nott then drove toward Muscatine.

The sheriff drove back to the Rock residence to return Satterthwaite who had ridden with him. On the way he received a radio communication that Mrs. Rock's silverware was missing. The sheriff immediately radioed the Muscatine police department to be on the lookout for the Nott car because the driver and occupants were believed to be involved in a farm theft. The sheriff later heard that the police were stopping the Nott car.

Defendant and the Nott brothers were at the police station when the sheriff arrived. The police had just finished booking James Nott on a defective equipment charge. One officer explained on cross-examination that the reason for this arrest was due to the fact the previous night they had warned Nott about his defective lighting equipment and directed him to park the car.

The sheriff advised the three they were under arrest for burglary and asked James Nott if he could look through his car again which was parked in the police department lot. Nott refused. The sheriff then asked the desk sergeant to call the county attorney and tell him they would need a search warrant. Nott then told the sheriff he would give his permission but the sheriff advised Nott he did not want any oral permission and he would either need written permission or a search warrant. Nott was taken into another room and advised of his constitutional rights in the manner enunciated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.2d 974. The written permission was prepared by and signed by James Nott in the sheriff's presence. A search of the vehicle followed. The food items and silverware previously described were in a sack in the car.

Later in the evening Rocks came to the police station and Mrs. Rock identified the items taken from James Nott's car as their property taken from their home.

I. In the first of his four assignments of error relied on for reversal, defendant asserts the court erred in failing to sustain his pretrial motion to suppress evidence and in admitting State's exhibits 2 and 3 into evidence at his trial.

In written motion defendant moved the court to suppress all items of personal property seized 'as a result of a search made contrary to the provision of the Fourth Amendment of the Constitution of the United States of America' and 'testimony of any witness whose identity was discovered as a result of said search and seizure.' Attached to this motion was defendant's affidavit asserting that no search warrant was executed authorizing the search; it was not made incidental to arrest, the arrest having been made after the search was conducted; and defendant never consented to the search.

The trial court did not indicate in its ruling denying defendant's motion to suppress the ground or grounds upon which it based the ruling. State v. Brant, 260 Iowa 758, 761--762, 150 N.W.2d 621, 624.

It must be conceded there was no search warrant in existence. Hence, at the outset we are reminded that: '(T)he most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.' '(T)he burden is on those seeking the exemption to show the need for it. " Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564. (emphasis in the original).

This court cited the foregoing statement of law with approval in State v. King, 191 N.W.2d 650, 654 (Iowa 1971).

In the case before us defendant made no objection to the admissibility of the exhibits involved when offered at his trial. Examination of the record does not disclose that the identity of any witness was discovered as fruits of the search and seizure. Defendant's contention thus limited is directed against the initial search made by the sheriff when the Nott car was stopped some two miles from the Rocks' residence and the seizure at the Muscatine police station of the items offered.

The first question that merits consideration is Osborn's standing to challenge the legality of the search in the circumstances of this case.

In this connection we are concerned only with the problem in those circumstances where a guest in an automobile seeks to challenge legality of a search of an automobile registered and in the possession of another when the fruits of the search are sought to be used against the guest in establishing his guilt of the crime charged.

There is no contention made in support of the trial court's ruling that Osborn consented to the search. In fact, the record discloses the only remarks of any peace officer directed to Osborn were at the police station when the sheriff advised defendant along with the Nott brothers that they were under arrest for burglary. There is no record of any comment or statement made by defendant at any time.

In his motion to suppress and the affidavit attached thereto as shown by the transcript of the trial court proceedings defendant does not challenge the validity of Nott's consent. At the hearing James Nott testified he did not give the sheriff permission to search his car. His brother Charles testified he did not hear James give consent but on cross-examination stated, 'I couldn't hear nothing. They were back to Dick's car.'

Amendment 4 to the United States Constitution prohibits 'unreasonable searches and seizures.' A similar provision is Article I, section 8, of our state constitution. In order to enforce this provision of Amendment 4, the United States Supreme Court adopted a rule excluding from trial illegally seized evidence. However, an accused who attempts to have such evidence excluded must first establish standing to...