State v. Weir

• Citation: 414 N.W.2d 327
• Decision Date: 21 October 1987
• Docket Number: No. 86-749,86-749
• Parties: STATE of Iowa, Appellee, v. Milton WEIR, Appellant.
• Court: United States State Supreme Court of Iowa

Page 327

414 N.W.2d 327

STATE of Iowa, Appellee, v. Milton WEIR, Appellant.

No. 86-749.

Supreme Court of Iowa.

Oct. 21, 1987.

As Corrected Nov. 20, 1987.

Charles L. Harrington, Appellate Defender, and Dory A. Sutker and James F. Whalen, Asst. Appellate Defenders, for appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase and Roxann Ryan, Asst. Attys. Gen., John W. Criswell, Co. Atty., for appellee.

Considered en banc.

NEUMAN, Justice.

This is an appeal by defendant Milton Weir from the judgment and sentence imposed upon his conviction, following jury trial, of three counts of murder in the first degree and one count of robbery in the first degree, in violation of Iowa Code sections 707.2 and 711.2 (1985). The sole question presented for our review is whether the district court properly overruled defendant's pretrial motion to suppress incriminating evidence seized pursuant to a warrant allegedly issued without probable cause and in violation of Iowa Code section 808.3 (Supp.1985). Finding no reversible error, we affirm the convictions.

I. Background Facts and Proceedings.

On November 26, 1985, the slain bodies of Kenny Easter, LoRae McCuddin and six-year-old Dustin McCuddin were discovered in their rural Warren County home by a friend, Rosland Reynolds. Examination of the bodies revealed that Kenny Easter was shot four times with a .357 Colt Python revolver and once with a .410 shotgun. The other two victims were each killed by a single shot to the head, fired from the .357.

DCI special agent David Fees was assigned to investigate the case. After making contact with other law enforcement agencies, and the victims' family and associates, Fees came upon a significant lead on November 28, 1985. Betsy Douglas, sister-in-law of a Polk County sheriff's deputy, told him that she knew the two individuals who committed the crime. One was her live-in boyfriend Larry Simpson and the other was defendant Milton Weir.

According to an affidavit subsequently furnished by Fees in support of his application for a warrant to search Weir's car and residence, Douglas related the following facts implicating Weir in the crime. On November 24 she entered her Des Moines apartment to find both Simpson and Weir. When Weir left, Simpson showed Douglas a large quantity of cocaine. Simpson then told Douglas that he and Weir had robbed Kenny Easter, obtaining entry to his residence on the pretext of using the telephone. In the course of the robbery Weir "went crazy and killed all of them," "blow[ing] Kenny's head off" in the process. Firearms, drugs and approximately $8000 cash were taken in the robbery. The drugs and guns had already been split between Simpson and Weir.

Douglas further advised Fees that she observed a .357 Magnum revolver and a .42 caliber handgun in Simpson's possession plus marijuana, three pounds methamphetamines, 2500-3000 tulenols and $8000 cash in the apartment. On each of the two days following November 24, Weir reportedly came over to the apartment and stated "It's not in the paper yet, they must not have found them." Douglas also told Fees that she knew Weir was a karate instructor at Plaza Lanes in Des Moines and drove a small brown four-door vehicle with an automatic transmission.

Fees' affidavit also cited his conversation with Ronda Wagner, sister of Betsy Douglas. She reportedly told Fees that she had been in Simpson's apartment that day and observed Weir "with a blue automatic pistol shoved down his pants and a blue Smith and Wesson .22 caliber revolver in his hand." She also reported observing an automatic carbine, a bag of marijuana, hashish, dilaudids, needles and spoons. She also observed Weir's car, which she described as a small brown Chevrolet Chevette, parked behind Simpson's apartment.

Fees personally observed the small brown automobile parked behind Simpson's apartment and traced its registration to J.T. Weir. Other law enforcement officers confirmed that Weir taught karate at Plaza Lanes Fitness Center.

A second attachment to the affidavit recited that on December 3, 1985, special agent C.R. Wood advised Fees that during an interview with Larry Simpson, Simpson advised that he had recently helped move Weir to his parents' residence in Bedford, Iowa. All Weir's possessions, legal and illegal, were reportedly moved there. Fees subsequently observed the bronze Chevrolet Chevette at the residence in Bedford.

On the strength of the foregoing affidavit, magistrate Jack Campbell issued a search warrant on December 3, 1985, authorizing the search of defendant Weir's person, automobile and parents' residence. Items to be seized were specifically confined to the contraband described in the affidavit. When the warrant was executed, substantial evidence linking Weir to the crime was found, including a partially dismantled .357 Colt Python revolver (later positively identified as the murder weapon), a .410 shotgun, ammunition for both guns, the remains of a custom-made ring given Kenny Easter by Rosland Reynolds, a can of mace and a large baggie of marijuana.

Defendant Weir filed a motion to suppress all the evidence seized in the search, claiming (1) that the warrant was illegally executed, (2) that the warrant was issued without probable cause, and (3) that the warrant was insufficient on its face because it contained no indication that informant Betsy Douglas had given reliable information on previous occasions or that her information was credible.

The trial court overruled defendant's motion, summarily rejecting defendant's claim that the warrant was illegally executed. The court found the warrant to have been issued upon probable cause based on the record made before the magistrate.

The case proceeded to trial by jury. On this appeal from the resulting convictions, defendant renews his challenge to the legality of the search warrant. He contends that the warrant was issued without an inquiry or finding concerning the veracity of Douglas or Wagner, that information attributed to these informants must therefore be excised from the warrant application, and that without this information the application and attachments do not furnish constitutional justification for the search.

II. Standard of Review.

Because Weir challenges the search warrant on constitutional grounds, we are obliged to review de novo the facts and circumstances which led to its issuance. State v. Seiler, 342 N.W.2d 264, 266 (Iowa 1983). We are limited in our review to a consideration of only that information, reduced to writing, which was actually presented to the magistrate at the time application for the warrant was made. State v. Seager, 341 N.W.2d 420, 426 (Iowa 1983).

We are further guided in our examination by the now-familiar holding of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 79 L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), which clarified that

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that a magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 79 L.Ed.2d at 548 (citation omitted). Applying this standard in State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986), we also recognized our duty to give deference to the magistrate's finding. Id. at 558. Due to the preference for warrants, doubts are resolved in favor of their validity. Id.

Our own decisions pertaining to search warrants have consistently applied the following test for determining the existence of probable cause: whether a person of reasonable prudence would believe a crime was committed on the premises to be searched or evidence of a crime could be located there. State v. Sykes, 412 N.W.2d 578, 583 (Iowa 1987); State v. Woodcock, 407 N.W.2d 603, 604 (Iowa 1987); State v. Seager, 341 N.W.2d at 426-27. Probable cause to search requires a probability determination as to the nexus between criminal activity, the things to be seized and the place to be searched. Seager, 341 N.W.2d at 427. The quantum of information needed to establish probable cause is less than required for conviction. State v. Bousman, 387 N.W.2d 605, 609 (Iowa 1986). But mere suspicion, rumor or even "strong reason to suspect" a person's involvement with criminal activity is inadequate to establish probable cause. See Seager 341 N.W.2d at 427-28.

III. Arguments on Appeal.

With these principles in mind, we consider Weir's challenge to the probable cause finding made by the magistrate. We are satisfied that the information furnished by Fees' application established the requisite nexus between the crime and its fruits. Douglas' report that Weir shot the victims and that drugs, guns, and cash taken from Easter's residence had been split between Simpson and Weir demonstrated the necessary probability that Weir would possess those fruits of the crime. Weir's two incriminating statements and possession of two handguns while at Simpson's apartment in the two days following the crime further link him to its commission. Because a person's car, home and person are logical places to search for items in their possession or control, information that Simpson helped Weir move his possessions to Weir's parents' home in Bedford established that as a place likely to produce evidence of the crime.

Defendant's challenge to the warrant, however, focuses on the magistrate's failure to establish Douglas' reliability or the credibility of her information. This omission, argues defendant, violates Iowa Code section 808.3 (Supp.1985) thereby invalidating the probable cause finding and rendering the fruits of search...