State v. Leto

305 N.W.2d 482, 1981 Iowa Sup. LEXIS 947
CourtSupreme Court of Iowa
DecidedMay 13, 1981
Docket64359
StatusPublished
Cited by31 cases

This text of 305 N.W.2d 482 (State v. Leto) 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. Leto, 305 N.W.2d 482, 1981 Iowa Sup. LEXIS 947 (iowa 1981).

Opinion

LARSON, Justice.

The defendant Thomas J. Leto has appealed from his conviction of second-degree theft under sections 714.1(4) and 714.2(2), The Code 1979, arising from his possession of a stolen van. He contends the court erred in (1) refusing to suppress evidence seized under a search warrant; (2) refusing to sustain his motions for mistrial and to strike, based upon the State’s introduction of evidence of his inculpatory statements not divulged prior to trial, as required by Iowa Rule of Criminal Procedure 13; and (3) admitting evidence of other crimes. We affirm the trial court.

I. The Search Warrant.

The search warrant was issued on the application of Officer Paul Womack, who furnished his own affidavit and statements of Paula Mohr, an informant. Various items of evidence relating to stolen vehicles were seized under the warrant. The defendant challenges the search warrant on two grounds: (1) the facts contained in the search-warrant affidavit of Officer Wom-ack were insufficient to establish probable cause because no illegal activities were described, and there was no evidence that the items to be seized were located at the defendant’s residence at the time of the search; and (2) it allowed the searching officers to conduct a general search.

A. Probable cause.

In addressing the question of the sufficiency of the underlying facts shown for the issuance, we first note the well-established principles which apply. An unlawful search will preclude the use at trial of all evidence obtained in the search or through leads uncovered by the search. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453 (1963). Because the defendant contends the search warrant was invalid under the fourth amendment, this court’s scope of review is de novo, and we make an independent evaluation of the totality of the circumstances. State v. Hall, 297 N.W.2d 80, *485 89 (Iowa 1980). Probable cause exists for the issuance of a search warrant “when the facts and circumstances presented to the judicial officer are sufficient in themselves to justify the belief of a reasonably cautious person that an offense has been or is being committed.” State v. McManus, 243 N.W.2d 575, 579 (Iowa 1976); accord, State v. Post, 286 N.W.2d 195, 199 (Iowa 1979); State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976). While probable cause requires more than a “mere suspicion” of criminal activity, State v. Swartz, 244 N.W.2d 553, 554 (Iowa 1976), State v. Birkestrand, 239 N.W.2d 353, 357 (Iowa 1976), or “innocent-appearing activity”, State v. McManus, 243 N.W.2d at 579; State v. Post, 286 N.W.2d at 200, “there is a large difference between” proof of guilt and proof of probable cause, Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 1889 (1948); Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364, 367 (1813) (“the term ‘probable cause’ ... means less than evidence which would justify condemnation”). In marginal cases a search conducted pursuant to a warrant may be constitutional even though one conducted without a warrant may be invalid. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684, 687 (1965) (“[ajlthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants”).

Officer Womack, in his affidavit accompanying the search-warrant application of June 21, 1979, stated: 1

1.On 6/12/79 I personally observed at 5758 N.E. 29th Street, Polk County, four complete stolen vehicles and parts of bodies from numerous others; specifically, a dark brown 1976 CJ5 Jeep, VIN J6F83AA014054, which had been reported stolen four days earlier; license plate attached to same registered to Thomas L. Wagner.
2.Also observed at above address, a 1978 silver Ford van stolen from Ank-eny, Iowa, 7/6/78, Serial No. E14HHCF3241; said vehicle parked next to the above-listed jeep.
4. That affiant’s investigation reveals that Mr. Leto operates a body repair business including painting and welding of damaged vehicles.
5. That personal observation of numerous vehicles recovered at 5758 N.E. 29th Street revealed that many parts of same had been welded and interchanged.
6. Arrest warrants have been issued for Mr. Proctor of 5758 N.E. 29th and Mr. Wagner whose license plate was discovered on the stolen jeep recovered at Proctor’s residence.

Additional information was provided by Paula Mohr, an informant, whose evidence was related by Officer Womack in his application:

1. That Paula Mohr is registered owner of 1976 CJ5 Jeep (listed above). That she had same repaired by Mr. Leto at address listed herein on or about June 4, 1979.
2. That said jeep was stolen on or about June 8, 1979.
3. That on May 25, 1979, she was a passenger in a van driven by Mr. Leto to Wisconsin. During said trip, Mr. Leto stated that van was recently acquired and that he had rebuilt it from salvage. She observed a CB radio and tape deck wired together attached to the cigarette lighter.
4. That on or about 6/13/79 she identified her stolen 1976 CJ5 Jeep, which was in police custody, and she also advised police that the van referred *486 to above was also in their custody, along with the Jeep.
5. That after arrival with Leto to Wisconsin in van, Leto introduced her to Proctor (all supra).

The defendant argues that the facts related in the application were insufficient for issuance of the warrant because they create only a “mere suspicion” of criminal activity. See Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 642-43 (1969). He notes the absence of any evidence in the affidavit that he had “knowledge of the van’s heritage,” viz., that the van was stolen by Wagner almost a year earlier. It is true that section 714.1(4) requires the State to prove at trial that Leto knew or had reasonable cause to believe the property was stolen. However, the element of knowledge need not be “proven” in the application.

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Bluebook (online)
305 N.W.2d 482, 1981 Iowa Sup. LEXIS 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-leto-iowa-1981.