State v. Vallier

• Decision Date: 11 June 1968
• Docket Number: No. 52783,52783
• Citation: State v. Vallier, 159 N.W.2d 406 (Iowa 1968)
• Parties: STATE of Iowa, Appellee, v. David Angelo VALLIER, Appellant.
• Court: Iowa Supreme Court

Page 406

159 N.W.2d 406

STATE of Iowa, Appellee, v. David Angelo VALLIER, Appellant.

No. 52783.

Supreme Court of Iowa.

June 11, 1968.

Rehearing Denied Sept. 4, 1968.

R. M. Fassler and Allan D. Kane, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and William G. Faches, Cedar Rapids, County Atty., for appellee.

MASON, Justice.

David Angelo Vallier was charged by county attorney's information with breaking and entering with intent to commit larceny contrary to section 708.8, Code 1966. Following a plea of not guilty the matter proceeded to trial by a Linn County jury which returned a verdict of guilty. Motion for new trial was overruled and defendant was sentenced to imprisonment in the state penitentiary for a term not to exceed 10 years.

From this final judgment defendant appeals.

His two assignments of error present the sole question whether evidence obtained at the time defendant was taken into custody consisting of a green safe, a maul, a pry bar, a valve, pliers and a safe dial should have been suppressed as being a result of an illegal seizure of defendant's automobile in violation of Amendments 4 and 14 of the federal constitution and Article I, section VIII, of the state constitution.

I. After the jury was impaneled but before introduction of any evidence, defendant moved to suppress this evidence, contending it was the result of an illegal and improper search and seizure of his automobile which was impounded without a warrant and its driver arrested and held in jail without a warrant. He argues a search or seizure of a motor vehicle must be based upon probable cause even though the standard requiring a search warrant be first obtained is not the same for vehicles as for fixed objects.

At defendant's request a hearing was had before the court on his motion to suppress. Defendant testified and witnesses were called by the State. From the record made, it is established that defendant was driving his 1953 Pontiac automobile about 11:30 p.m. on a Cedar Rapids street when stopped by police. The officers did not have any warrants of arrest nor did they indicate why they were stopping him when they asked him to get out of the car. Defendant's companion in the car was placed under arrest for resisting arrest when he refused to get out of the driver's seat of the car. Defendant was taken to the Cedar Rapids police station, kept over night, but not charged with the crime until the following day when he was charged with breaking and entering and possession of burglar tools.

All police officers had been directed to watch for defendant's car. It was first observed by two city police officers in a downtown parking lot with the back of the car weighted down to within four or five inches of the pavement, the trunk lid open approximately six to eight inches. Both patrolmen knew this car belonged to defendant. On closer inspection made by shining a light through the opening to the trunk, the officers saw what appeared to be a safe.

They called Mr. Trousdale and Mr. Gearhart, detectives of the Cedar Rapids police department. When the detectives arrived, the officers advised them of their checking the vehicle and that a metal box which appeared to be a safe with two wheels similar to those under a safe was in the trunk. The detectives drove by the car, observed the same details and went to a police call box on another assignment, directing the patrol car to stay and observe the vehicle.

While the detectives were at the call box two individuals entered the automobile, left the parking lot driving in a westerly direction on First Avenue. They were followed by a marked patrol car and the detectives in their unmarked car until stopped on Johnson Avenue.

As the driver got out of the car, both detectives recognized him as Vallier and that he had been drinking. Trousdale decided to have him sent to the police station 'to be checked on how much he had been drinking.' Defendant was taken to the station but not formally charged with operating a motor vehicle while intoxicated as 'it was determined that he wasn't under the influence enough.' After defendant was sent to the station and his companion placed under arrest, defendant's vehicle 'was impounded because it was sitting in the traveled portion of the roadway in a hazardous position.'

One detective left immediately, secured a search warrant, returned to the station with it about 1:30 a.m. and made a search of the trunk where he had found the safe and tools described. About 2:30 defendant was charged with a crime.

Gearhart testified he was familiar with Vallier as a known felon, had stopped him at midnight with what appeared to be a safe in his car, and although defendant stated there was nothing in the trunk when questioned, the rear of the trunk was four to five inches from the pavement.

The court overruled defendant's motion and the trial proceeded. The State offered in evidence each of the items seized over defendant's objection on the basis urged in his motion to suppress. At the close of the State's case defendant renewed his motion on similar grounds. After the motion was overruled, defendant rested and renewed his motion. Defendant's motion was again overruled and the matter finally submitted to the jury.

II. Defendant makes no complaint as to the validity of the search warrant or contention it was issued without probable cause.

Although defendant concedes a search or seizure without a warrant may be predicated upon either voluntary consent or be conducted as an incident of a lawful arrest, he maintains evidence seized as the result of an unlawful arrest is inadmissible at trial even though a search warrant is later obtained.

He further contends the officer must have probable cause either at the stopping or when additional facts...