State v. Schrier

Decision Date19 September 1979
Docket NumberNo. 62348,62348
Citation283 N.W.2d 338
PartiesSTATE of Iowa, Appellee, v. Roger Alan SCHRIER, Appellant.
CourtIowa Supreme Court

Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, ALLBEE, and LARSON, JJ.

UHLENHOPP, Justice.

This appeal presents the question of the propriety of a warrantless search and seizure of a small knapsack containing marijuana and related paraphernalia, lying on the floor of an automobile near the place where the driver's feet would be. See Arkansas v. Sanders, --- U.S. ----, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The question comes down to whether the facts place the case on the side of the line exemplified by such decisions as United States v. Neumann, 585 F.2d 355 (8th Cir. 1978); and United States v. Pugh, 566 F.2d 626 (8th Cir. 1977) (Per curiam ), or on the other side exemplified by United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978), and United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978). The facts therefore play a vital role.

At about 12:15 a. m. on April 22, 1978, Officer Merrill Carns stopped defendant Roger Alan Schrier for speeding in Indianola, Iowa. Defendant had two companions with him in the front seat, a man and a young woman. The officer asked defendant for his driver's license and, smelling alcohol, also asked defendant to get out of his car. Defendant got out, and the officer arrested him for driving while under the influence of intoxicants. The officer radioed for another officer to check the other two occupants of the car for intoxication and meanwhile waited in his patrol car with defendant.

Officer James Hildreth answered the call for assistance. Hildreth had been "aware of" Roger Alan Schrier in connection with "drug-related matters" for the past four or five years. Hildreth was also familiar with bags of the type involved here; he testified, "The only thing that I have retrieved from bags like that has been a controlled substance."

Another officer, a deputy sheriff, also came to the scene; he remained in his car on the opposite side of the street and observed the situation.

Hildreth approached defendant's car from the driver's side; the door was open and the window was down. He asked the two occupants to step out. He testified at trial:

Q. Did you shine your flashlight inside the vehicle? A. Yes, sir, I did.

Q. And why did you do this? A. Well, when I told the subjects to step out of the vehicle and go to the rear, the young lady reached down like she was going to pick something up with her purse or what it was. That's when I had my light in there to see what she was reaching for.

Also:

Q. Did you observe anything in that area at that time? A. Yes, I did.

Q. And what did you observe? A. This green army bag here.

Q. And was there anything particular about the green army bag that caught your eye? A. Yes, sir. The bag was sitting like that in the car and on this side right in its pouch here was a plastic bag which contained a plant-like material.

A subsequent test showed that the plant-like material was marijuana. Hildreth further testified:

Q. So State's Exhibit No. 2 was in that left-hand pouch on the outside of State's Exhibit No. 1, the green bag? A. Yes, sir, it was.

Q. And how many inches was it protruding out of the green army bag? . . . A. I would say two and a half, maybe three.

Q. And did you have to protrude into the interior of the car in order to see that when you first saw it? A. No, sir. I was standing on the outside of the vehicle.

In addition:

Q. How close were you to the bag? A. I'd say three foot maybe.

Q. And in your opinion, how close was the girl to the bag? A. Within hand reach. She was just it was just right there within a foot maybe.

Q. How close was Mr. Minick (the male occupant) to the bag? A. He was within two, two and a half foot.

Hildreth then proceeded as follows:

Q. And what did you do as pertains to the bag? A. After I observed the bag on the front floor of the vehicle I immediately retrieved it.

Q. Did you have occasion to look inside State's Exhibit No. 1? A. Yes, sir, I did.

Q. When did you do that? A. After I retrieved that bag from the interior of the vehicle and the people were exiting, coming around the back of the vehicle, I just pulled the lid open and looked inside.

Further regarding this part of the occurrence, Hildreth testified at a pretrial suppression hearing:

Q. You are saying, sir, you opened it right when you were outside the car. A. I'm saying I retrieved this one from it.

Q. Yes. A. I looked in the bag.

Q. The green bag, Exhibit 2 (Exhibit 1 at trial)? A. The green bag.

Q. Right when you were outside the car? A. Yes.

Q. You are sure of that? That's what you looked at first? A. That's when I looked inside of it. I didn't open it.

Q. How did you proceed to look inside? A. Just like that.

Q. I see. You lifted up the edge and looked inside that way? A. Right.

Q. Without undoing the clasp? A. Right.

Q. Did anyone give you consent to either seize that bag or look inside? A. No, sir.

The knapsack is about five and one-half inches wide, five inches deep, and eight inches high. The flap over the open end may be latched tightly or loosely depending on the adjustment of the strap. If it is latched tightly and the ends are placed over the sides of the knapsack, the contents of the knapsack are not visible. If the flap is not tight when latched, part of the contents of the knapsack may be visible at one or both sides of the flap.

Apparently the strap was not very tight at the time in question, as the officer saw part of the contents by pushing the flap aside. Regarding the nature of the bag and his observation of its contents, Hildreth testified at trial:

Q. Now is there a latch on the front of that exhibit, Exhibit No. 1? A. Yes, there is.

Q. And what was the condition of the latch or strap when you first observed it? A. It was just like it is now. It was closed.

Q. And that is a fabric latch, is it not? A. Yes, sir, it is.

Q. Did you have to unlatch it or unstrap it in order to look inside? A. No, sir, I did not.

Q. And did you unstrap it or unlatch it to look inside when you just, after you took it from the car? A. No, sir I did not.

Q. When you looked inside, what did you observe? A. I observed two or three other plastic bags with plant-like material in them.

Q. Did you have an opinion as to what those bags contained? A. Yes, sir.

Q. What did you believe they contained? A. I believed they contained a controlled substance, mainly marijuana.

A subsequent test demonstrated that Hildreth's belief about the contents constituted the fact. Further:

Q. Did you have occasion to observe anything else inside the bag at that time? A. No, sir, not at that time.

Q. Did you believe that there was articles inside the bag? A. Yes, sir.

Q. From carrying it around? A. Yes, sir.

Hildreth concluded that the two occupants of the car were not intoxicated and released them. Carns proceeded to the police station with defendant, and Hildreth also went there, bringing the green bag. Regarding events at the station in defendant's presence, Hildreth testified:

Q. When did you first unlatch the bag. A. I first unlatched the bag when I was inside the station or inside the police station.

Q. And what did you observe inside the bag? A. After I unlatched it, I dumped it out right there on the officer's desk and observed five other packages or four other packages of grass substance and also a pipe and some other articles.

Q. Would you describe those articles? A. There is a plastic bag in there with numerous other plastic bags inside of it. There is also a small brown tray inside there and a set of scales.

Q. Is there anything else in that exhibit? Perhaps you want to refresh your memory. A. The only thing else in there would be some cigarette papers, two or three small screens, a book of matches, I believe, very small brown bottle, black lid, I believe that's it.

Hildreth testified that when he dumped the contents of the bag he also observed a small brown tray with a set of scales taped to it, a razor blade, and a green notebook.

Hildreth stated he gave defendant the Miranda warning and the following occurred:

Q. How did the conversation go at this point in time? A. I asked him if he wanted to talk to me about the green bag and his reply was that well, he might as well. He thought we had him this time.

Q. As best you can recall it, what did you next ask him? A. Well, then immediately went to the green book and started turning the pages in it and asking him what the numbers and transactions were that was on the pages, and he was explaining them, what they were.

Q. What did he say to you? A. He told me that, well, some of the figures in there was that he owed people and what people owed him, and what his profits were off of certain transactions.

Q. What type of transactions? A. Drug transactions.

Q. Were there any specific drugs mentioned during this conversation? A. Yes. There was reference made to speed and pot and numerous other drugs.

Q. Was there any talk of profit? A. Yes, sir.

Q. And would you describe that to the jury? A. He advised me on, I believe, it is the third page or one of the pages that forward of the book that he had made $260 worth of profit on one transaction.

Q. Did he talk of what drugs he dealt in? A. He said he dealt in over a period of time in just about everything right from marijuana, right down to heroin.

Q. Did you ask him at anytime for how long a period of time he's been dealing in drugs? A. Yes, sir.

Q. And what was that conversation? A. He advised me off and on over the years since 1969.

Q. Was there any conversation as to the ownership of the Exhibit 1 and all the other exhibits contained therein? A. Yes, sir. He said they belonged to him.

The county attorney charged defendant with possession of a controlled substance with intent to deliver. Defendant pleaded...

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