State v. Raymond

• Decision Date: 03 May 1966
• Docket Number: No. 51801,51801
• Citation: 258 Iowa 1339,142 N.W.2d 444
• Parties: STATE of Iowa, Appellee, v. Joseph Frank RAYMOND, Appellant.
• Court: Iowa Supreme Court

Page 444

142 N.W.2d 444

258 Iowa 1339

STATE of Iowa, Appellee, v. Joseph Frank RAYMOND, Appellant.

No. 51801.

Supreme Court of Iowa.

May 3, 1966.

Norman G. Jesse of Jesse & LeTourneau, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., Ray A. Fenton, Des Moines, County Atty., and James D. McKeon, Asst. County Atty., Des Moines, for appellee.

BECKER, Justice.

Defendant Joseph Frank Raymond was indicted, tried and convicted of the crime of breaking and entering. From this conviction he appeals.

During the early hours of January 26, 1965, police officers Edward Dunham and Eugene Battani, on duty in downtown Des Moines, saw defendant Joseph Raymond in a pool hall. Officer Dunham observed Raymond's clothing to be clean and in fair condition, not torn or disarranged.

Approximately two hours later at about 1:45 A.M. the officers observed an open window at the Wallace Radio Shop. Investigation disclosed the Howell Auto Parts Company, immediately adjacent, had a broken skylight, with jagged pieces of glass, a black substance and water on the floor immediately under the skylight. This skylight was reinforced glass covered with tar. A coke machine had been pried open and a coin box disturbed.

There was fresh snow that night. The officers noted footprints leading away from the open window. The right shoe print had a full horseshoe heel plate, whereas the left shoe had no such plate. Officers Weatherington and Kail joined the other two officers at the auto parts shop. Officers Weatherington and Kail later left the scene to locate Raymond. They found him in his car in an alley near the Chemberlain Hotel. At that time his shoes were soaked through, his coat appeared dirtier, had various tears; his trousers had a dark substance on them at the front and back which appeared to be grease or tar. His hands had the same substance on them. Officer Weatherington arrested defendant prior to the time that officers Dunham and Battani arrived. Defendant was informed that he was arrested as a suspect in the Howell Auto Parts break in, taken to the jail and booked at the station under 'investigation to detectives.'

At the jail it was discovered that defendant had an old cut on his arm which had become infected. He was taken to Broadlawns Hospital for treatment at which time he apparently stated he had been with a party named Stuart in the 1200 or 1300 block of Woodland Street in Des Moines. He was taken on a search for that house and upon failing to find it he was taken back to the scene of the break in. There defendant was asked for his shoe. He at first refused to give his shoes to the officers but did so when told that the shoes would be impounded. The shoes were matched with the prints in the snow. Officers Dunham and Battani testified that the defendant's right shoe was equipped with a horseshoe heel plate and that the shoes exactly matched the footprints in the snow.

Defendant denies that he was told what he was being charged with at the time of his arrest in the alley behind the Chamberlain Hotel other than to be told that he was being arrested for investigation. He states that he went to jail and took his clothes off, put them back on and at that time the police noticed his arm was injured. They took him to the Broadlawns Hospital; thence to the Howell Auto Parts Building. He stated that the police told him to take his shoes off and he complied and they took his shoes. They took his clothing at the police station later telling him they wanted it as evidence in the Howell Auto Parts job.

Returned to the station, defendant's jacket, trousers and shoes were impounded. These items together with known samples of glass, tar and paint obtained from the broken skylight in the Howell Auto Parts were sent for FBI Laboratory analysis in Washington. Trial evidence was produced from the special agent of the laboratory that materials removed from the clothing, characteristically speaking, matched the known materials from the skylight.

Prior to trial defendant moved to suppress evidence the items seized from him and objected to any testimony in relation thereto, in that all such evidence and testimony resulted from an unreasonable search and seizure. A voir dire hearing was held absent the jury. The trial court overruled the motion to suppress, finding that the officers had probable cause to make the arrest in the alley near the hotel and thus the subsequent search and seizure of the appellant's clothing was not unreasonable nor in violation of his constitutional rights.

I. Defendant's first assigned errors are that instruction #10 told the jury that defendant's failure to testify could be considered as 'an inference of guilt', also the county attorney in final argument commented on defendant's failure to take the stand. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; State v. Johnson, 257 Iowa ---, 135 N.W.2d 518; State v. Beshears, 257 Iowa ---, 138 N.W.2d 886; State v. Osborne, 257 Iowa ---, 139 N.W.2d 177, and State v. Barton, 257 Iowa ---, 140 N.W.2d 886. While Griffin was not released until a few day after trial here, it is still controlling. State v. Barton, supra. This case must be reversed and remanded for a new trial.

II. Defendant's assigned errors numbers three through six all relate to the court's refusal to honor defendant's Motion to Suppress Evidence and the subsequent use of the clothing and shoes of defendant as evidence; matching of the material found on the clothing and the shoes with that known substance from the skylight.

Article I, § 8 of the Constitution of the State of Iowa is comparable to the Fourth Amendment of the Constitution of the United States:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches shall not be violated, and no Warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

It is clear that no search warrant had here been obtained. Not all searches or seizures undertaken without a warrant are unreasonable. A search and seizure predicated on voluntary consent or one conducted as an incident of a lawful arrest are two of the known exceptions to the rule that a search must rest upon a search warrant. Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; State v. Post, 255 Iowa 573, 123 N.W.2d 11; State v. Johnson, 135 N.W.2d 518. We believe that it is unnecessary to examine the question of whether the appellant consented to the search and seizure. This matter can and should be determined upon the question of whether or not the search and seizure was reasonable as incident to a lawful arrest.

Section 755.4, Code, 1962, provides that a peace officer may make an arrest without a warrant where a public offense has been committed and the officer has reasonable grounds for believing that the person to be arrested has committed it.

'The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner's arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information was sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1310--1311, 93 L.Ed. 1879, 1890; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, 138. 'The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officer's whim or caprice.' Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. at 1311. (93 L.Ed. at 1891.)' Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (October 15, 1964).

Defendant stresses the fact the officers who actually made the arrest had not seen defendant or his condition earlier in the evening. This overlooks the fact that the four officers were properly working as a team and had been together at the scene of the crime. He also stresses the fact that the officers were looking for defendant before they knew of the stains on the hands and clothing and the tears in the jacket. This would not make the arrest illegal. Evidence circumstantially tending to connect defendant with the crime was visually apparent without need for further search or seizure immediately upon finding defendant.

The officers knew that there had been a breaking and entering at the auto parts company. Defendant had torn clothing, substances on his clothing and hands, apparently similar to the tar and glass found at the scene of the break in. He was in the near vicinity of the break in both shortly before and after discovery of the condition of the building. Before the break in his clothes were untorn and unsoiled. His hands did not contain the substance referred to. Under such circumstances the trial court held that the officers had lawfully made an arrest without warrant. We agree.

III. Defendant makes the further point that he was not informed of the cause of his arrest at the time of his arrest in violation of Section 755.7, Code, 1962. Officer Joseph Dunham testified:

'Q. Officer, did you also inform him that he was a suspect in the Howell breakin? A. We did.

Recross Examination

'Q. Isn't it a fact that you informed him at the Howell Parts Building on the way back from the scene of the Howell breakin? A. No. ...