State v. Reese

• Decision Date: 23 November 1977
• Docket Number: No. 59720,59720
• Citation: 259 N.W.2d 793
• Parties: STATE of Iowa, Appellee, v. Michael William REESE, Appellant.
• Court: Iowa Supreme Court

Page 793

259 N.W.2d 793

STATE of Iowa, Appellee, v. Michael William REESE, Appellant.

No. 59720.

Supreme Court of Iowa.

Nov. 23, 1977.

John C. Wellman, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Faison T. Sessoms, Jr., Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Heard by MOORE, C. J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.

REES, Justice.

Defendant was charged by county attorney's information with the crime of carrying a concealed weapon in violation of section 695.2, The Code, 1975. He was tried before a jury, convicted, and sentenced to a term of not to exceed five years in the penitentiary. He appeals, asserting trial court erred in overruling a pretrial motion to suppress testimony concerning a pistol obtained by law enforcement officers when they stopped a car in which he was a passenger and conducted an investigatory search of the vehicle without reasonable grounds for conducting the search. We are in agreement with defendant's position, and reverse.

On March 19, 1976, at about 2 o'clock, a.m. Polk County Deputy Sheriff Parkins, while on patrol, overheard radio transmissions between police officers of the city of Ankeny and Polk County Detective Harold Strausburg. The radio communications concerned an automobile which the Ankeny police had under observation in their town and while Deputy Parkins did not hear the substance of the radio communications, he was able to secure a description of the vehicle which the Ankeny police were watching, together with its license number. Parkins also heard Detective Strausburg advise the Ankeny police that he would be watching for the vehicle.

Detective Strausburg testified that he had listened to communications between the Ankeny police officers and had learned from the same that the police were watching a certain automobile which was reported as being driven in a "suspicious manner" in the town of Ankeny. He also learned from the communications the auto had been in Ankeny and was headed from there in a southerly direction. Strausburg later learned through the radio communications that the registered owner of the automobile was one Claude Bumpus, and Strausburg remembered or was under the impression that Bumpus had a prior arrest and felony conviction record, although at the suppression hearing he was unable to give any details on the arrest record or the exact crime which Bumpus was suspected of having committed.

Deputy Parkins saw the automobile in question at the gas station south of Ankeny and near Interstate 80, but saw nothing unusual about the car or its occupants who were apparently purchasing gasoline. Solely on the basis of the communications he had overheard between the Ankeny police and Detective Strausburg, he stopped the vehicle as it left the gas station. Detective Strausburg arrived on the scene just a short time later in an unmarked vehicle. Both officers approached the car and obtained the names of the passengers, one of whom was the defendant. After running an identity check on the passengers, it was discovered that one of them was wanted in Illinois for armed robbery, and on the discovery of such information the officers asked all of the passengers to alight from the car. While the passengers were in the process of complying with such direction, the officers noticed that defendant was attempting to hide a .44 caliber pistol under the seat of the auto, and Detective Strausburg reached into the auto, removed the weapon from the car and placed defendant under arrest.

At the pretrial suppression hearing, defendant contended that the gun was obtained consequent to an investigatory search and was admissible at trial only if the circumstances under which it was seized made the plain view doctrine applicable. Defendant argued the plain view doctrine was inapplicable because there were no facts before the trial court which could possibly justify a conclusion that the officers who saw the defendant attempting to hide the weapon had a legal right to be at the scene by reason of a proper investigatory stop of the vehicle in which defendant was riding. Trial court concluded the investigatory stop was proper and overruled defendant's motion to suppress the evidence concerning the seizure of the gun. During the hearing on the motion to suppress, trial court interrogated the witnesses and established in the record that Ankeny is basically a residential town which had had an increasing crime rate over the past five years. It was also established by interrogation of the witnesses that the term "suspicious" employed in describing the manner in which the vehicle was being operated in Ankeny was used by the officers to convey the information that the vehicle was being driven around the town of Ankeny in an aimless fashion and without apparent destination.

After the overruling of the pretrial suppression hearing, and at trial, defendant objected to the introduction of the evidence concerning the seizure of the gun at several stages, including his motion for a directed verdict and a post-verdict motion for new trial. All were overruled and this appeal ensued.

I. The sole issue stated by defendant for review is whether trial court erred when it overruled defendant's motion to suppress evidence of the seizure of the gun on the grounds that the investigatory stop of the vehicle and the resulting seizure of the gun were constitutionally impermissible.

II. The...