State v. Gathercole

553 N.W.2d 569, 1996 Iowa Sup. LEXIS 407, 1996 WL 526465

• Court: Supreme Court of Iowa
• Decided: September 18, 1996
• Docket: 94-1798
• Status: Published

Opinions

LARSON, Justice.

This defendant, Rayford Gathercole, was convicted of first-degree robbery, Iowa Code §§ 711.1, 711.2 (1993), and possession of a firearm by a felon, Iowa Code § 724.26. We affirm.

I. The Facts.

Gathercole was charged with a January 30, 1994 robbery of a Breadeaux pizza store in Des Moines. According to the evidence, an employee, Kathleen Boatwright, was working alone at approximately 10 p.m. when she received a telephone call placing a pizza order. The male caller appeared to be calling from a pay phone, judging by the traffic noise in the background. The information given by the caller later turned out to be fictitious.

Within twenty minutes of the call, Ms. Boatwright saw a white male, who she later identified as Gathercole, enter the store with a black male. Both men pulled ski masks over their faces after they entered. The man later identified as Gathercole pointed a silver-plated pistol at her, pushed her into a bathroom, and locked the door. Eventually, a deliveryman arrived. He released Ms. Boatwright from the restroom and called the police. Six hundred dollars was missing from the till.

The day after the robbery, police officers learned that at the time of the robbery an individual named Greg Sangster had observed a vehicle in the area occupied by a black male and a white male. Sangster worked at a used car lot nearby, and he became suspicious about the car and its occupants. He wrote down the license number, which he provided to the police. The car was owned by Gathereole’s wife.

The officers obtained a search warrant for the defendant, the vehicle, and the defendant’s residence. A search of the defendant’s person revealed a loaded silver gun, which Ms. Boatwright identified as being similar to the one used in the robbery. A search of the defendant’s car revealed two gray ski masks and a five-dollar bill.

Ms. Boatwright, on seeing a photographic array, identified the defendant as the white male perpetrator. An officer interrogated the defendant, who admitted being in the area on the evening of the robbery but denied any involvement in it. A warrant for Gathercole’s arrest was issued on February 7, 1994, but it could not be served on him at that time because he had left the state. He was arrested in Des Moines on February 23, after he was returned from Utah, and the county attorney’s information was filed on April 5,1994.

II. The Issues.

Gathercole contends that (1) he was not indicted within forty-five days of his arrest as required by Iowa Rule of Criminal Procedure 27(2)(a), (2) the arrest warrant was issued without probable cause, and (3) the jurors were improperly permitted to listen to Gath-ercole’s tape-recorded interview.

A. The timely indictment issue. Gathercole was arrested as a fugitive in Utah on February 11, 1994, when a Utah trooper cheeked his license plate and learned of the outstanding Iowa arrest warrant. The Utah officer, apparently proceeding under a section of Utah’s uniform extradition act equivalent to Iowa Code section 820.14, took Gath-ercole before a Utah judge to be advised of the charges against him and of his rights concerning extradition procedures.

On February 14, Gathercole waived extradition. Utah authorities so notified Iowa and requested that Gathercole be picked up within ten days. Transcor America, Inc., a private corporation, retrieved him in Utah on February 17, 1994, and delivered him to Des Moines authorities on February 22. The arrest warrant was served in Des Moines the following day.

Gathercole moved to dismiss the ease on the ground that the county attorney’s information, filed on April 5, 1994, was not filed within forty-five days of his arrest. In resolving this issue, the critical question is when was Gathercole “arrested” for purposes of Iowa Rule of Criminal Procedure 27(2)(a). This rule provides:

When an adult is arrested for the commission of a public offense, ... and an indictment is not found against him within forty-five days, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown or the defendant waives his right thereto.

The State argues that Gathercole was arrested on February 23, when the arrest warrant was served on his return from Utah. The county attorney’s information filed on April 5,1994, was therefore within the forty-five-day limit of rule 27(2)(a). Gathercole contends, on the other hand, that the information was beyond forty-five days of his arrest because, he claims, the arrest occurred on February 17, when Transcor took possession of him.

The specific source of Transcoris authority to transport Gathercole to Iowa is not in the record, although this stipulation appears in the transcript of the hearing on Gathercole’s motion to dismiss:

MR. THOMAS [defense counsel]: I just wanted to make sure that the State was stipulating to the fact that this corporation that picked up Mr. Gathercole was an agent for either the Des Moines Police Department or the Polk County Sheriffs Office in picking Mr. Gathercole up.

MR. WARD [prosecuting attorney]: I’d stipulate that they were hired by the State to pick up the defendant.

MR. THOMAS: And that the pick up was made on February 17,1994?

MR. WARD: Yes.

A transporting agent, such as Transcor, is an integral pari of any extradition proceeding. Under 18 U.S.C. § 3182, which implements the constitutional provisions for extradition and sets the parameters of state extradition procedures, an asylum state shall deliver the fugitive to the “agent of [the demanding state] when he shall appear.”

The Uniform Criminal Extradition Act, found in Iowa Code chapter 820, provides in pari:

[T]he governor [of the demanding state] shall issue a warrant ... to some agent, commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of this county in this state in which the offense was committed.

Iowa Code § 820.22 (emphasis added).

An interstate extradition compact, which has been adopted by Iowa in addition to . our uniform act, provides the following with respect to such an agent:

The local prosecuting authority of the demanding state shall cause a warrant to be issued to an agent, commanding the agent to receive the fugitive when delivered to the agent and convey the fugitive to the proper officer of the local jurisdiction in the demanding state.

Iowa Code § 818.9 (emphasis added).

Despite Gathercole’s contention that he was “arrested” by Transcor on February 17 when it took possession of him, neither 18 U.S.C. § 3182 nor the Iowa extradition statutes suggest that an agent has the power to make an arrest. In fact,

[t]he agent, as such, has nothing to do with securing the requisition from the governor of the demanding state, nothing to do with having it honored by the governor of the asylum state, and no duty to arrest and secure the fugitive. His duty is to conduct or transport the fugitive to the demanding state after the executive authority of the asylum state has delivered such fugitive to him....

35 C.J.S. Extradition § 20, at 446 (1960) (emphasis added) (citations omitted).

In addition, it is stated that

[t]he obligation of the extradition agent is limited to transporting the accused to the demanding state after his surrender by the authorities of the asylum state; the officer has no right to gather an armed force and rearrest a fugitive by violence, although he may use all precaution to prevent his escape and may follow in hot pursuit to recapture.

31A Am.Jur.2d Extradition § 147, at 856 (1989).

The wording of Iowa Code sections 818.9 and 820.22 (quoted above), as well as Utah’s identical • uniform-act provision, Utah Code § 77-30-22 (1953), makes it clear that an agent is not given any powers of arrest.

We define an “arrest” in speedy-trial cases by our general law of arrest under Iowa Code chapter 804 because rule of criminal procedure 27(2) and Iowa Code section 804.14, which describes the manner of making arrests, were enacted together. State v. Schmitt, 290 N.W.2d 24, 26 (Iowa 1980); see also State v. Davis, 525 N.W.2d 837, 839 (Iowa 1994).

Any “arrest” by Transcor fails the test for a valid arrest under Iowa Code chapter 804. It was not based on a warrant (Iowa Code § 804.1); Transcor was not a peace officer (Iowa Code § 804.6); and the “arrest” was not based on a public offense committed in the presence of Transcor (Iowa Code § 804.9). In fact, any arrest attempted to be made in Utah by an Iowa agent for an Iowa offense would be void. See State v. Lyrek, 385 N.W.2d 248, 250 (Iowa 1986) (warrant of arrest issued in one state may not be executed in another); Drake v. Keeling, 230 Iowa 1038, 1043, 299 N.W. 919, 922 (1941) (same). The arrest in Utah by the Utah officer was not in any sense an arrest for the Iowa offense; rather, it was based on Gathercole’s status as a fugitive from justice. See Lyrek, 385 N.W.2d at 250; 31 Am.Jur.2d Extradition §§ 23, at 766; 58, at 790 (1989).

Gathercole does not argue that the arrest by Transcor was a legal arrest on the Iowa charge; he argues that it was the same as an arrest because he was restrained by Trans-cor. We reject this argument for two reasons. First, it would, as a practical matter, render all extradition procedures ineffective if an agent were considered to exercise arrest power simply by physically restraining the fugitive. Such a de facto, but illegal, arrest would immediately entitle the fugitive to be released through habeas corpus. Cf. Iowa Code § 820.10 (habeas corpus to test validity of arrest under governor’s warrant). Because an agent is an integral part of any extradition, and taking custody of the fugitive would be a part of the transportation to the demanding state in any extradition case, a fugitive could never be returned to a demanding state.

Second, analogous cases dealing with speedy-trial issues have uniformly rejected the argument that a de facto arrest triggers the running of the allowable time for indictment or trial. For example, in United States v. Harris, 12 F.3d 735 (7th Cir.1994), the defendant argued that he was “arrested” for speedy-trial purposes when instead of either being transferred to another prison or released back into the general prison population he was kept in segregation. While the facts of Harris are not particularly apposite to those of the present case, the court’s observation concerning the theory of “de fac-to” arrests in speedy-trial cases is on point. The court said:

[T]he [speedy-trial act] is a technical statute and we are reluctant to enlarge it by analogy. Cases addressing the same question under the speedy-trial guaranty of the Sixth Amendment have uniformly declined to invoke the [defacto arrest] analogy-

id. at 736 (emphasis added) (citations omitted).

The court in Harris continued:

We ought moreover to distinguish between arrest and confinement. The Act’s thirty-day clock runs from arrest, even if the defendant is immediately released with or without bond. Protection against being incarcerated following arrest but before conviction is found elsewhere, for example in the Fourth Amendment, in the due process clause of the Fifth Amendment, and in the excessive-bail clause of the Eighth Amendment. Harris was never arrested in any sense that can be distinguished from incarceration.

Id. (citations omitted).

In a case that is closer on its facts, United States v. Iaquinta, 674 F.2d 260 (4th Cir.1982), the defendant was arrested by the state through a joint investigation with federal authorities. The court held that a state arrest did not start the time under federal speedy-trial requirements, despite the fact that the defendant was actually in custody before he was formally arrested by federal authorities. Id. at 267-69. The district court had dismissed the case as untimely on the ground that the defendant had been subjected to an earlier de facto arrest by the state. However, the court of appeals reversed, stating that the district court

treat[ed] the state arrest for purposes of the [speedy-trial] Act as a federal arrest. Neither the language of the Act nor good reasons supports the proposed exception; and all the authorities which have confronted the issue have ruled against it.

Id. at 264 (emphasis added).

We reject Gathereole’s de facto arrest argument under rule of criminal procedure 27(2)(a). Furthermore, under Gathercole’s argument that he was confined on February 14, he was still indicted within forty-eight days, and he does not claim he was prejudiced by a three-day delay in indictment. This case, therefore, falls clearly within permissible constitutional speedy-trial requirements. Cf. United States ex rel. Mitchell v. Fairman, 750 F.2d 806, 810 (7th Cir.1984) (no demonstrable harm from unexplained two-year delay in trial held nonviolative of constitutional speedy-trial rights).

Our conclusion that Gathercole was not “arrested” by Transcor for purposes of the speedy-indictment rule raises the inevitable question: Under whose authority was he arrested at that time? He was obviously not free to go. We believe that until he was returned to Iowa he was under the arrest warrant of the Utah judge before whom he was initially taken under Utah Code section 77-30-15, which is identical to Iowa Code section 820.15.

Under that Code section, a judge or magistrate in Utah is to issue a warrant to hold the accused as long “as will enable the arrest of the accused to be made under a warrant of the governor [of the demanding state].” (In this ease, Iowa.) In turn, the Iowa governor would issue a warrant “to some agent, commanding the agent to receive the person ... and convey the person to the proper officer of the county in the state in which the offense was committed [Polk County].” Iowa Code § 820.22; see also Utah Code § 77-30-22 (identical language).

When Gathercole waived his extradition rights, we believe he necessarily waived the procedures relating to the intervening warrant by the Iowa governor. This leaves him under the arrest warrant by the Utah court until he is delivered to the authorities in Polk County.

We recognize that this amounts to giving a limited extraterritorial effect to a warrant by the Utah court, which is inconsistent with the general law of arrest. However, we believe this is the only practical interpretation of the uniform act in those cases in which the accused has waived the issuance of the governor’s warrant by waiving his rights to extradition.

We do not believe that the uniform act may be interpreted to place a fugitive in a state of “arrestless” limbo if he waives extradition. Also, if the uniform act is not interpreted to provide authority to hold a fugitive pending delivery to the Iowa authorities, it would mean that a person waiving extradition would have greater rights than one who does not.

In any event, we reject Gathercole’s contention that he was placed under arrest by Transcor on February 17, 1994, for purposes of rule 27(2)(a).

B. The search warrant issue. Gathercole contends that the search warrant was invalid because the State had failed to establish probable cause. Probable cause requires a probability showing of a nexus between the criminal activity, the items to be seized, and the place to be searched. State v. Godbersen, 493 N.W.2d 852, 854 (Iowa 1992); State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987).

The quantum of evidence required to show probable cause is less than would be required for conviction but more than mere suspicion of the defendant’s involvement. Weir, 414 N.W.2d at 330. Our review of this constitutional challenge is de novo. Id. at 329. In a close ease, however, we give deference to the issuing magistrate’s findings, and because of our preference for the use of warrants, resolve doubts in favor of the warrant’s validity. Id. at 330.

In this ease, the search warrant application contained the following information: Two persons were involved in the robbery, one a white male in his thirties, about five feet ten inches tall and weighing approximately 175 pounds with light brown to blonde hair, and the other a black male in his forties. The clerk, who was able to see the white male’s face before he pulled on the ski mask, described to the officers a person resembling the one police knew as Gathercole. The information also included the report by Sang-ster about the car with the black male and white male in it parked closed to the pizza shop at about the time of the robbery. The lights were off. The license nmnber of the car established that it was owned by the defendant’s wife.

Regarding the required nexus among the crime, the items sought, and the places to be searched, we have held that it is reasonable to infer that stolen property would be found at a defendant’s residence. State v. Iowa Dist. Ct., 247 N.W.2d 241, 249 (Iowa 1976). Further, as one authority has noted:

Perhaps because stolen property is not inherently incriminating in the same way as narcotics and because it is usually not as readily concealable in other possible hiding places as a small stash ,of drugs, courts have been more willing to assume that such property will be found at the residence of the thief, burglar or robber.

Wayne R. LaFave, Search & Seizure § 3.7(d), at 381-82 (3d ed. 1996). In addition,

[w]here the object of the search is a weapon used in the crime or clothing worn at the time of the crime, the inference that the items are at the offender’s residence is especially compelling, at least in those cases where the perpetrator is unaware that the victim has been able to identify him to the police.

Id. at 384.

Regarding the search of the defendant’s person, which revealed the gun, it is reasonable to believe that guns will be kept on the subject’s person or in his residence. United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975).

We conclude that a sufficient nexus was established and that the issuance of the warrant was based on probable cause.

C. The use of the tape recorder. Gathercole complains that the trial court abused its discretion by allowing the jury to use a tape recorder to listen to a tape recording of Gathercole’s interview. A transcript of this interview was not admitted at trial, but the tape itself was admitted as a State’s exhibit.

The defendant concedes that the trial court is vested with discretion regarding admission of the tape recorder. Criminal procedure rule 18(5)(e) provides in part:

Upon retiring for deliberations the jury may take with it all papers and exhibits which have been received in evidence, and the court’s instructions. Provided, however, the jury shall not take with it depositions, nor shall it take original public records and private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.

(Emphasis added.)

The defendant relies on State v. Baumann, 236 N.W.2d 361, 365 (Iowa 1975), in arguing that the court abused its discretion in allowing the tape recorder to be used. In Bau-mann, we held that in some respects a tape recording is like a deposition and a court would be justified in treating it as a deposition and denying its use in the jury room.

It is clear, however, that rule 18(5)(e) does not prohibit the use of a tape recorder in the jury room; it specifically limits its proscription to depositions. Furthermore, the Bau-mann case made it clear that, under Iowa Code section 784.1 (1973), the predecessor to present rule 18(5)(e), the court would have been within its discretion to allow the use of the tape recorder in the jury room. We stated that “[w]e believe [the] trial court possessed considerable discretion to either grant or deny the jury’s request” to use it. Baumann, 236 N.W.2d at 366.

The court did not abuse its discretion in allowing the use of the tape recorder by the jury, and we therefore reject the defendant’s third assignment of error,

AFFIRMED.

All Justices concur except SNELL and CARTER, JJ., who dissent.