State v. Donnell

239 N.W.2d 575, 1976 Iowa Sup. LEXIS 1155
CourtSupreme Court of Iowa
DecidedMarch 17, 1976
Docket58328
StatusPublished
Cited by61 cases

This text of 239 N.W.2d 575 (State v. Donnell) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Donnell, 239 N.W.2d 575, 1976 Iowa Sup. LEXIS 1155 (iowa 1976).

Opinions

REYNOLDSON, Justice.

• Defendant, appealing from his conviction for violating § 712.1, The Code (receiving stolen property) raises issues relating to an investigatory stop of a van in which he was a passenger, and speedy trial, § 795.2, The Code.

Evidence was introduced at a pre-trial suppression hearing and upon trial of this case which would support the following factual statement.

On the early morning of November 22, 1974 defendant Donnell was the sole passenger in a red van driven by his roommate Uglem. This vehicle had been seen cruising very slowly through three Clear Lake residential areas several blocks apart before its driver was halted by a city patrolman at 2:00 A. M.

The evidence disclosed Clear Lake is a city with many vacant homes in the winter months. Over the prior year residential [577]*577break-ins had totaled “almost in the hundreds.” Large quantities of furniture and other bulky items had been stolen and apparently carried away by van or truck.

Officer Nuehring made the decision to halt the van. He was motivated by the circumstances above described, not by any traffic violation, mechanical defect or routine purpose to invoke § 321.492, The Code (permitting stops for license check and other specified reasons). Nuehring made a radio request for back-up assistance from officer Garlock.

Nuehring approached the driver’s side of the van. Garlock walked up to the window on the passenger side and recognized the defendant. The light of Garlock’s flashlight disclosed what appeared to be a “roach” (marijuana cigarette butt) on the floor of the van at defendant’s feet. This roach was obviously hand-rolled in distinctive red cigarette paper, with one end twisted in a typical fashion and the other end burned. Garlock asked defendant to step out of the car. He picked up the roach, confirmed it had a characteristic marijuana odor, and then retrieved another from the open ashtray.

Defendant was searched and found to be carrying 51 “white cross” amphetamine tablets. He resisted being handcuffed and the roaches which were in Garlock’s hand were destroyed in the resulting scuffle. At the police station booking search credit cards stolen from a burglarized farm home were found in defendant’s wallet. This led to a warrant search of his apartment where household items also stolen from the farm house were seized. This personalty formed the basis for defendant’s ultimate conviction.

I. Defendant filed a motion to suppress any evidence removed from the van, his person, his wallet or his apartment, asserting there was no probable cause to make an investigatory stop of the van in which he was riding. Defendant .thus identifies the fighting issue, for if this stop was justified then Garlock was in a place he had a right to be when he saw and seized the roach which triggered all subsequent events. See State v. Cooley, 229 N.W.2d 755, 760 (Iowa 1975) and citations.

In Cooley, supra, we adopted the principle articulated in Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-907 (1968), where the court noted “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Circumstances for an investigatory stop exist “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experiences that criminal activity may be afoot * * Id., 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for a probable cause arrest to simply shrug his shoulders and allow a crime to occur. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972). Nor does that amendment ordinarily prohibit, as an illegal “search”, a plain .view observation made by a police officer from a position where the officer is entitled to be. United States v. Johnson, 506 F.2d 674, 675 (8 Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1579, 43 L.Ed.2d 784 (1975).

A vehicle investigatory stop complying with the Terry standards may include observing anything to be seen from outside the vehicle. United States v. Hernandez, 486 F.2d 614, 616 (7 Cir. 1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974). The “plain view” doctrine is applicable even though the contents of the vehicle may not have been visible without the use of a flashlight or other artificial illumination. United States v. Johnson, supra, 506 F.2d at 676.

In determining whether the court erred in overruling the motion to suppress [578]*578we may consider not only the evidence adduced in the motion to suppress but the later trial testimony. United States v. Upthegrove, 504 F.2d 682, 684, n. 4 (6 Cir. 1974); see DiBella v. United States, 369 U.S. 121, 129, 82 S.Ct. 654, 659, 7 L.Ed.2d 614, 620 (1962); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925).

Nor does our examination of reasonable cause for an investigatory stop end with the officer’s subjective reasons. The test is not the policeman’s subjective theory, but whether the record discloses articu-lable objective facts were available to the officer to justify the stop. United States v. Vital-Padilla, 500 F.2d 641, 644 (9 Cir. 1974); White v. United States, 448 F.2d 250, 252 (8 Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); United States v. Harflinger, 436 F.2d 928, 933 (8 Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971); see Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; Cooley, supra, 229 N.W.2d at 759 (“[W]e must objectively determine whether stopping of said vehicle * * * was reasonable under the circumstances”).

Applying the above principles, the following information was available to officers involved in this investigatory stop:

(A) This van was seen in a small Iowa city.
(B) The city policeman did not recognize the van, the operator, or the passenger prior to the stop.
(C) Clear Lake had been subjected to a crime wave of home burglaries.
(D) Many Clear Lake homes were vacant during the winter months.

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Bluebook (online)
239 N.W.2d 575, 1976 Iowa Sup. LEXIS 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donnell-iowa-1976.