State v. Sanders, 65469

• Decision Date: 25 November 1981
• Docket Number: No. 65469,65469
• Parties: STATE of Iowa, Appellee, v. Dale SANDERS, Donald Johnson, and Michael Ingham, Appellants.
• Court: Iowa Supreme Court

Page 534

312 N.W.2d 534

STATE of Iowa, Appellee, v. Dale SANDERS, Donald Johnson, and Michael Ingham, Appellants.

No. 65469.

Supreme Court of Iowa.

Nov. 25, 1981.

James Q. Blomgren of Williams, Clements, Blomgren & Pothoven, Oskaloosa, for Michael Ingham.

Michael P. Brice of Michael P. Brice Law Office, Oskaloosa, for Dale Sanders.

David D. Dixon of Heslinga & Heslinga, Oskaloosa, for Donald Johnson.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and Greg A. Life, Mahaska County Atty., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK, and SCHULTZ, JJ.

LeGRAND, Justice.

A jury convicted these three defendants of robbery in the first degree, committed in violation of section 711.2, The Code 1979, and false imprisonment, committed in violation of section 710.7, The Code 1979. Each was sentenced to serve concurrent terms of not more than twenty-five years on the robbery conviction and one year on the false imprisonment charge. All three defendants appeal, and we affirm.

At approximately 12:40 a. m. on February 1, 1980, Anna Noel, assistant manager of the Pizza Hut in Oskaloosa, Iowa, closed the restaurant and went to her car with the day's receipts. After she got into her automobile, two men approached. At least one of the men had a handgun. The two men entered her car, ordering her to move over to the passenger side of the front seat. With Ms. Noel as a passenger, one of them drove her vehicle from the Pizza Hut parking lot to a nearby point where they met another car in an obviously prearranged rendevouz. They got out of her car and entered the get-away car, taking the Pizza Hut receipts with them. Ms. Noel drove her car back toward Oskaloosa. On the way, she flagged down a passing police car. She reported the robbery to the police officer manning the vehicle, who immediately put out a radio alert. Additional facts will be recited as we consider the issues urged by defendants as grounds for reversal. They say the trial court erred in (1) denying their motion to suppress evidence; (2) refusing to submit being an accessory after the fact as an included offense; (3) admitting identification testimony; (4) calling additional jurors to supplement the existing jury panel; (5) permitting a witness to testify beyond the scope of the minutes of testimony; and (6) refusing to permit defendants to call an expert witness.

I. Motion to Suppress Evidence.

On the night of the robbery, members of the Oskaloosa Police Department were maintaining surveillance over an area in the east end of Oskaloosa where there had been a rash of burglaries. They observed a red four-door Ford parked in a deserted spot in a parking lot near the Pizza Hut. This later turned out to be the get-away car used by defendants after the robbery.

The police officers saw the red Ford leave the parking lot with its lights out. One of the officers attempted to follow the vehicle but lost sight of it. About the same time, another police officer, Edward L. Morrison, who was stopped east of the Pizza Hut, observed a green Chevrolet Impala driving at a "speed greater than it should." He noted its license number. This car was later identified as belonging to the victim, Anna Noel. The green Impala was followed by the red Ford which had been under surveillance. Officer Morrison attempted to follow these cars but they got away. A short time later, Officer Morrison was flagged down by Ms. Noel and informed of the Pizza Hut robbery. He put a bulletin of the robbery on his car radio, alerting other officers in the area to be on the lookout for two or three suspects, presumably armed, in an "older model gray four-door car." This is how Ms. Noel described the car. The officer told Ms. Noel to return to the Pizza Hut and he, too, went there.

When Officer Morrison arrived at the Pizza Hut, he noted for the first time that Ms. Noel's car was the green Impala he had earlier seen being driven at a high rate of speed. He then related to the other officers who had gathered there that the vehicle he had seen following Ms. Noel's car was not gray; it was the red Ford parked earlier near the Pizza Hut. Based on this information, a new bulletin was issued over the police radio, describing the suspects' car as a red four-door Ford occupied by three or four persons, some of whom were armed.

Shortly before the corrected radio bulletin was broadcast, two police officers from nearby Eddyville observed a red four-door Ford disabled on a highway a few miles south of Oskaloosa. Upon investigation, they spoke to defendant Sanders, one of the occupants, who said they had run out of gas. At that time there was no reason for these officers to connect this car with the Pizza Hut robbery. They offered to get some gas for the vehicle and were on this errand when they heard the revised radio report regarding a red Ford which fitted the description of the car they had just left.

The Eddyville police officers contacted the Oskaloosa Police Department, advising them of this fact, and then returned to the disabled vehicle. Defendant Sanders got out of the car and walked back to the police car, just as he had done earlier. This time the officers ordered the other two defendants, Johnson and Ingham, out of the car. All three were searched. When the officers found a knife on Sanders and large rolls of money on both Sanders and Ingham, the men were arrested and handcuffed. The officers then conducted a warrantless search of the interior of the car, which produced several rolls of coins and a loaded pistol. After the vehicle was towed to a garage in Oskaloosa, an inventory search disclosed another pistol under the dash board of the auto. Defendants filed a motion to suppress this evidence as being the fruit of an illegal search and seizure in violation of the fourth amendment to the Federal constitution and § 8, Art. I of the Iowa Constitution.

In overruling defendants' motion to suppress, the trial court found that there were "sufficient grounds for the Eddyville officers to arrest the defendants and conduct a 'pat-down' search incident to the lawful arrest." The trial court reasoned that probable cause existed because the arresting officers were aware of the following:

1. Within the hour there had been an armed robbery in nearby Oskaloosa.

2. The get-away car was a dirty four-door red Ford.

3. The get-away car had three or four occupants, two of whom were believed to be armed.

4. It was early in the morning.

5. Defendants' car was a dirty four-door red Ford.

The trial court relied heavily on State v. Dixon, 241 N.W.2d 21 (Iowa 1976). Dixon involved the stop and search of a vehicle after police officers had received a radio report of a robbery in the vicinity.

We consider first whether the officers made a valid arrest based on probable cause to believe defendants were involved in criminal conduct. State v. Dixon, 241 N.W.2d 21, 23; accord, State v. Shane, 255 N.W.2d 324, 326 (Iowa 1977). In Shane, we approved the following quote from Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332:

"In dealing with probable cause * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. * * * Probable cause exists where 'the facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.' * * * "

255 N.W.2d at 326.

In the case now before us, the arresting officers came upon a car answering the description of one which had just been involved as the get-away car in a nearby armed robbery. Like the get-away car, this one was occupied by more than one man (although the officers did not know how many), and it was near the place where Ms Noel had been released by her abductors. The case is almost identical to State v. Dixon as to the circumstances justifying an arrest. We agree with the trial court that the officers had probable cause to arrest defendants.

Once the legality of the arrest is established, the officers were justified in subjecting defendants to a search of their persons. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440-41 (1973). See Dixon, supra, at page 25 (McCormick, J., concurring specially). The fact that the search may have been prior to defendants' formal arrest is not important. The search and the arrest were all part of one continuous police action. In State v. Johnson, 232 N.W.2d 477, 479 (Iowa 1975), we said:

(W)e hold the entry was legal under the circumstances presented by this record whether the arrest was made when defendant first appeared at the door of his home or later within the house itself. We do not deem the few intervening minutes to be of material significance. Rather, we consider the events beginning with the demand that defendant surrender and terminating when he was taken into custody to be a continuing procedure which, taken in its entirety, constituted a valid arrest. Although defendant's liberty was restricted as soon as he answered the officer's call and the arrest might be considered complete then, such questions are not determined with stop-watch precision. (Citations omitted).

Neither will we apply a stop-watch in this situation.

The search of the car presents a different problem necessitating a consideration of the so-called "automobile exception" to general rules of search and seizure. We most recently discussed this in State v. Holderness, 301 N.W.2d 733 (Iowa 1981).

Ordinarily a search and a resulting seizure of private property "must be both reasonable and performed pursuant to a properly executed warrant." Id. at 736. One of the "jealously and carefully drawn"...