State v. Peterson

• Decision Date: 09 January 1968
• Docket Number: No. 52591,52591
• Parties: STATE of Iowa, Appellee, v. Raymond DuWayne PETERSON, Appellant.
• Court: Iowa Supreme Court

Page 412

155 N.W.2d 412

261 Iowa 669

STATE of Iowa, Appellee, v. Raymond DuWayne PETERSON, Appellant.

No. 52591.

Supreme Court of Iowa.

Jan. 9, 1968.

James F. Fowler, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., Ray A. Fenton, County Atty., and Vincent M. Hanrahan, Asst. County Atty., for appellee.

LARSON, Justice.

The defendant Raymond DuWayne Peterson was convicted of the crime of breaking and entering a tavern in Des Moines, Iowa, known as Peggy's Lounge, contrary to the provisions of section 708.8 of the 1966 Code. He has appealed and assigns as error (1) the court's denial of his written motion to suppress evidence, to reconsider, for a mistrial, and for a new trial, because the evidence used against him was obtained by illegal and unreasonable search and seizure, (2) the overruling of defendant's objections to testimony and exhibits used against him, because they were obtained by illegal search and seizure, (3) the refusal of the court to give defendant's requested instructions and the overruling of his objections to the instructions given, and (4) the admittance over defendant's objections of statements and admissions made by him to the arresting officer when the officer had not fully advised him of his constitutional rights. Assignments 3 and 4 are not argued and are deemed waived. State v. Mead, 237 Iowa 475, 22 N.W.2d 222. In any event, we find no merit in any of these contentions and affirm the trial court's judgment sentencing defendant to the State Penitentiary for a term of not to exceed ten years. The facts will be stated as they become pertinent.

I. Prior to trial defendant filed a motion to suppress evidence, including statements obtained from him as a result of an entry to an apartment where he was found, his arrest, the seizure of certain items of property found on him, and the extent of the officer's advice as to defendant's constitutional rights, for the reasons that (1) the officer's entry into an apartment occupied by defendant was unlawful and unreasonable, (2) the arrest was unlawful, (3) the seizure of defendant and certain items found in the apartment were unlawful and unreasonable, and (4) damaging statements were elicited from him by the arresting officer without first advising him of his constitutional rights of allowing him the opportunity to exercise them.

A hearing on this motion was had and the trial court overruled the motion. Thereafter defendant's motion to reconsider the ruling was also considered and rejected. Defendant correctly maintains that evidence obtained during an illegal search is not admissible at the time of trial, particularly where a timely motion to suppress the evidence has been filed. He cites Amendments 4 and 14 to the United States Constitution, and Article I, Section 8, of the Iowa Constitution; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; State v. Post, 255 Iowa 573, 123 N.W.2d 11; and several other federal and Iowa cases. We have considered these cases and their basic holdings, i.e., that the due process clause of Amendment 14 precludes the admission of unconstitutionally-seized evidence in a State proceeding. See State v. Shephard, 255 Iowa 1218, 1222, 124 N.W.2d 712. Also see 49 Iowa L.Rev. 14. However, we have also held, if there is a search, that an accused may waive the protection afforded by the constitutions and may freely consent to a search which might otherwise be illegal. State v. Post, supra; Foley v. Utterback, 196 Iowa 956, 195 N.W. 721.

The State contends under the facts disclosed in this case there was no search, legal or otherwise, but if there was a search, permission for the search was freely and voluntarily given. We agree and hold this record reveals no search was made at the apartment where defendant was placed under arrest.

II. At the hearing on the motion to suppress it appears Mrs. Sample, a tenant on the lower floor of an apartment building heard an unusual noise coming from the adjoining furnace room about 1:30 P.M. on Sunday, December 4, 1966. She thought it was the landlord working on the furnace, and a short time later when she opened her door to the furnace room to talk with him, she observed the defendant standing at the rear door leading into Peggy's Lounge. It appeared he was trying to put the door back together. The defendant first looked at Mrs. Sample and then ran up a stairway leading to apartments on the floor above. There was no other exit available to him. Mrs. Sample observed that defendant was wearing a dark hat and brown suede jacket. Her suspicions being aroused, she examined the front door of the Lounge and found it locked. She then advised the landlord and together they examined the furnace room, determined a break-in had occurred, and called the police. Officer Gillespie, in uniform, arrived about 2:40 P.M., saw that the rear door to the tavern had been pried open, that beer containers were lying around on the floor, that the cash register drawer was open, and concluded there had been a breaking and entering of the premises.

Upon being advised of Mrs. Sample's observations, the officer, the landlord, and Mrs. Sample, ascended the stairs to the floor above and, hearing voices in Apartment 5, the officer knocked on the door. He said nothing until the door was opened by a man, later identified as a neighboring tenant. The officer asked if he could come in, was told 'Yes, come right in', and he did, followed by Mrs. Sample and the landlord. In the apartment they observed three men and many empty cans of beer on the floor. Defendant was sitting or lying on the bed, and his hat and jacket were on a chair or stand nearby. Mrs. Sample immediately identified him as the person she had seen running from the rear door of the tavern and pointed out the hat and jacket he had been wearing. Officer Gillespie said he then advised defendant of his constitutional rights to an attorney and that anything he said could be used against him, and placed him under arrest for the Lounge break-in. Thereafter, the defendant first denied that he knew anything about the tavern entry and asked 'What break-in?' When advised that it was the Lounge downstairs, he said, 'Well, I might as well admit it, you have got me.' While no search of defendant was made at that time, the officer took him and his hat and jacket to the police station.

It appears that the person who leased Apartment 5, Mr. Ayers, had gone on an errand and intended to be back shortly, that he had told his three guests 'he would be right back, stick around'. It also appears no one in particular was left in charge, although defendant had been an overnight guest. In any event, when the officer asked to come in, no one including defendant voiced any objections to his entry. No force or deceit was used to gain admission to this apartment, and the trial court found there was no evidence of an illegal entry. Clearly then, unless the entry was unlawful, the defendant's arrest was lawful. The officer was aware that a crime had been committed and the suspect had been pointed out to him. State v. Raymond, 258 Iowa 1339, 142 N.W.2d 444, 447; State v. Brant, Iowa, 150 N.W.2d 621.

III. It is reasonable to believe that when guests are left in charge of one's private premises, they possess the authority to grant or deny admission thereto to visitors. It must be remembered that the request here was for admission only, not for a right to search. This is a vital distinction. A granted request for admission is not the same as leave to search one's private premises. We would hesitate to say these guests could authorize a search of the Ayers apartment, but that was not the request, nor was any effort made to conduct...