State v. Lathum

380 N.W.2d 743, 1985 Iowa App. LEXIS 1546

• Court: Court of Appeals of Iowa
• Decided: November 26, 1985
• Docket: 84-1124
• Status: Published

Opinions

HAYDEN, Judge.

Defendant appeals from his conviction for burglary in the second degree in violation of Iowa Code section 713.3. He asserts that certain evidence was obtained in violation of his fourth amendment rights. We reverse and remand.

Darrell Lee Lathum was charged by trial information with second-degree burglary; the case was tried to the court.

Evidence presented established that the Five Seasons Tire Center in Cedar Rapids was burglarized on the evening of January 31, 1984. The owner of the store determined that a key to the premises and an unspecified number of coins had been taken; he had no knowledge of who may have broken into the store. Upon arrival at the scene, investigating officers Chapman and Ray discovered footprints inside and outside the premises. One officer spoke with Timothy Smith, an employee at a nearby gas station, who described two men he had seen earlier in the evening. According to Smith, the men had been at the station acting suspiciously.

Sometime after midnight, the police officers observed defendant Darrell Lathum and one David Nuehring walking out of a restaurant and back toward the general area of the tire store. Testimony indicates that the two men fit Smith’s description. They were stopped by the officers, who requested that they present identification and empty their pockets; the identification was not returned. In response to a question Lathum indicated that he and Nuehr-ing had been together all evening. At some point the suspects were told of the break-in and asked to accompany the investigating officers to the scene of the crime.

Upon arrival at the tire store, one officer compared footprints found at the scene with Lathum’s footwear and found them to be similar. The officer told Lathum that evidence linked him to the crime and that he was looking for a key that had been in the store cash register. Lathum admitted that he had thrown the key in a snowbank across from a relative’s home. At that time, both suspects were formally arrested; however, they were not advised of their constitutional rights. Lathum and Nuehr-ing were subsequently taken to the gas station where the attendant identified them as the persons who had acted suspiciously earlier in the evening. Lathum’s fingerprints were later determined to match those found at the scene of the crime.

Apparently, oral and written confessions were obtained from Lathum the following day. There is some indication by the prosecutor that defendant was advised of his constitutional rights at this time. However, we are unable to determine from the evidence presented if this actually occurred, much less when.

Prior to trial, defendant sought to suppress all evidence obtained after he was initially stopped by the police. The prosecution did not resist suppression of statements made at the tire store; nor did they resist the suppression of the oral and written confessions.

After a hearing, the court overruled Lat-hum’s motion and determined that the following was admissible: Lathum’s statement that he and Nuehring had been together all evening; evidence concerning the bootprints and fingerprints; and the identification made by Timothy Smith, the gas station attendant.

The case was tried to the court and Lat-hum was ultimately convicted. He has appealed from this determination.

Defendant’s sole claim on appeal is that the aforementioned evidence should have been suppressed on fourth amendment grounds. Specifically, it is argued that from the time of the initial stop Lathum and Nuehring were subjected to a level of restraint indistinguishable from a traditional arrest. Because the “arrest” occurred without probable cause, Lathum maintains that all subsequent evidence was obtained illegally.

Our analysis of the record convinces us that the initial stop by officers passes constitutional muster.

An officer who has a reasonable and articulable suspicion of criminal activity may stop, briefly detain, and frisk an individual for purposes of investigation. State v. Hensley, — U.S. -, -, 105 S.Ct. 675, 681, 83 L.Ed.2d 604, 612 (1985); Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 899, 911 (1968).

In the present case, at the time the defendant was stopped, officers were investigating a specific offense. Lathum and Nuehring fit Smith’s description and were close to the location of the burglary. These factors would indicate that the investigating officers had the “reasonable and articulable suspicion” necessary to justify brief detention and questioning. Any statements elicited at the scene of the investigatory stop were properly admitted at trial, including Lathum’s statement that he and Nuehring had been together all evening.

The police officers, however, exceeded the bounds of an investigatory stop once they transported the suspects to the scene of the crime and later to the police station. See Hayes v. Florida, — U.S. -, -, 105 S.Ct. 1643, 1647, 84 L.Ed. 705, 710 (1985). At that point in the investigation, police procedures were so intrusive that the full panoply of fourth amendment rights was triggered. In essence, in order to legally transport Lathum to the burglary scene, the officers needed either probable cause to arrest or Lathum’s consent.

As the trial court determined, there is little, if any, evidence that probable cause existed. In fact, the officers admitted that they did not have probable cause to arrest while they were at the location of the stop. Thus, if the conduct of the police officers is to be considered constitutionally permissible, it must be based upon the voluntary consent of the defendant.

We have carefully reviewed the record and simply cannot conclude that Lathum went to the scene of the burglary voluntarily. Rather, it is apparent that he was submitting to a show of authority. Lathum was stopped by uniformed officers who frisked him, asked him to empty his pockets, took his driver’s license, and did not return it. He was told of the burglary and asked to go to the scene of the crime where he was detained. Lathum was never informed he was free to go; indeed, Officer Chapman specifically testified that the suspects were not free to leave. Furthermore, Officer Ray testified that put in the same position he would not feel free to leave. We are inclined to agree with the defendant that he was subjected to a level of restraint that was “indistinguishable from a traditional arrest.” See Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824, 839 (1979).

Evidence indicates that Lathum was cooperative with the officers, but this cannot be equated with voluntary consent. When a suspect’s liberty is restrained by show of authority, he does not somehow lose his constitutional rights by complying with the request of the police.

We hold that defendant’s fourth amendment rights were violated. Absent probable cause or the consent of the suspects, it was unconstitutional for the police to transport them to the scene of the crime. All evidence obtained after this point should have been suppressed at trial.

Our decision today is not reached lightly. We recognize that the record contains more than sufficient evidence to support a conviction. However, we cannot ignore the fact that much of the evidence, indeed the most damaging evidence, was illegally obtained. For all practical purposes, the investigating officers in this case acted with disregard for the defendant’s fourth amendment rights. They used their authority to transport the suspects to the scene of the crime, detain and question them, and obtain incriminating physical evidence — all without consent or probable cause. The federal constitution does not allow, nor are we willing to condone, this violation of constitutionally protected rights.

Accordingly, we reverse the conviction and remand the cause for a new trial.

REVERSED AND REMANDED.

All Judges concur except DONIELSON and SACKETT, JJ., who dissent.