State v. McManus

243 N.W.2d 575, 1976 Iowa Sup. LEXIS 972

• Court: Supreme Court of Iowa
• Decided: June 30, 1976
• Docket: 58281
• Status: Published

Opinions

REES, Justice.

Defendant was charged by county attorney’s information with the crime of possession of a controlled substance, specifically, marijuana, with intent to deliver the same in violation of § 204.401, The Code, 1973. Following the entry of his plea of not guilty he was tried to a jury and convicted. He sought and was granted an accommodation hearing under the provisions of § 204.410, The Code. After hearing to the court without a jury, the court found the defendant had not established by clear and convincing evidence the offense involved was an accommodation offense, and sentence was imposed. Defendant appeals. We reverse and remand for a new trial.

Defendant was arrested after a warranted search at his residence yielded about 35 to 45 pounds of marijuana. Prior to trial defendant filed a demurrer, alleging the unconstitutionality of the statutory scheme which is encompassed by § 204.401 and § 204.410, The Code, as they existed at that time. The constitutional challenges raised by defendant here were substantially identical to those raised in State v. Monroe, 236 N.W.2d 24 (Iowa 1975). Trial court overruled defendant’s demurrer.

Defendant also filed a motion to suppress the fruits of the warranted search of his residence, but following hearing the trial court overruled the motion to suppress in its entirety.

Trial to a jury resulted in a verdict finding defendant guilty of the offense charged. As noted above, defendant was granted an “accommodation” hearing pursuant to Code § 204.410. Following the accommodation hearing, trial court held defendant had failed to establish by clear and convincing evidence that he “possessed with intent to deliver a controlled substance only as an accommodation to another individual and not with intent to profit thereby nor to induce the recipient or intended recipient of the controlled substance to become addicted to or dependent upon the substance.”

On May 7, 1975, trial court sentenced defendant to be confined for a term of not to exceed five years at the Men’s Reformatory. Defendant was also fined $100. This appeal ensued.

Defendant states for review the following issues:

(1) Did probable cause exist for the issuance of the warrant to search defendant’s residence.

(2) Are §§ 204.401 and 204.410, The Code, 1973, unconstitutional as applied to the defendant in this case.

I. In his first issue stated for review defendant challenges the validity of the search warrant under which the marijuana was seized.

The warrant was issued on the application of W. M. Cook, a police officer for the city of Iowa City. Cook’s sworn information set out the following facts which, he contended, led him to believe there was probable cause for the issuance of the warrant:

“(A) Facts of which I have personal knowledge without using an informant: “(a) Facts: On the morning of November 1, 1974, the affiant conducted surveillance on a white 1963 Dodge, 81-6057, while it was engaged in a sale of approximately 20 pounds of marijuana.

“Followed vehicle to a location approximately one and a half miles east of Atalissa, Iowa, on Highway 6 where this vehicle met with a blue Van driven by Deputy Warner of Muscatine County Sheriff’s Department. Watched vehicle leave the area and go to a farmhouse located Lone Tree, RR, Section 23 of Lincoln Township, Johnson County, Iowa, or a farmhouse located approximately one and one quarter miles west of the Johnson County-Muscatine County line on the Hills Blacktop (approximately 75 feet east of the Howard Krueger residence).

“(b) Witnessed vehicle return to Atalis-sa area and meet again with the blue Van driven by Deputy Warner. Witnessed arrest of Novak and Goodrich for the delivery of marijuana to Deputy Warner.

“(B) Facts told to me by an informant:

“(a) At approximately 10:15 p. m. on October 31, 1974, the affiant was contacted by Deputy Warner of the Mus-catine County Sheriff’s Office. Warner advised that he had an undercover purchase of marijuana scheduled for 9 o’clock a. m. on November 1. 1974. He stated that a subject known to him as Scott Goodrich would meet him at a weight scales located approximately one mile east of Atalissa, Iowa. If everything was okay, Goodrich would leave his girlfriend with Warner while he (Goodrich) left to pick up the marijuana.

“At approximately 9:15 a. m. on November 1, 1974, the affiant was contacted by Deputy Warner and advised that he had just had conversation with Goodrich, and that Goodrich was unable to make his contact for the marijuana and would try again at approximately 10:30 a. m. and meet with Deputy Warner once more at 11:15 a. m. at the same location.

“Warner had previously advised the af-fiant that he would be equipped with a portable radio and that if everything went according to schedule, he would not contact the affiant until the time of the arrest. Otherwise, if something had gone wrong, the affiant would be notified immediately.”

The affiant for the warrant also stated on the sworn information that the authorities did not know at that time who occupied the residence which was later determined to be occupied by defendant.

Officer Cook also presented sworn oral testimony in connection with his application for the search warrant. Such testimony was abstracted by the issuing magistrate on his endorsement to the warrant application as follows:

“William M. Cook, 3021 Raven St., Iowa City, was contacted by Deputy Warner of Muscatine County. Said he’d made arrangement to buy MJ from one Scott Goodrich. Found Goodrich’s local address to be 730 Michael St. Warner had described car with license 81-6057 which was located at Michael St. address about 5:15 A.M., 11-1-74. From 8:10 A.M. kept vehicle under surveillance. “Was in radio contact with Deputy Warner by plane which W was in.

“Goodrich returned to I.C. for 1 hr. Then returned to Atalissa, met van, then left and went to farm in Lone Tree area, returned to Atalissa, advised by radio that 20 lbs. of MJ changed hands.

“Doesn’t know who owns farm but it is rented.”

We must determine the validity of the search warrant only upon the facts recited in the affidavits and the abstracts of oral testimony endorsed on the application; it cannot be rehabilitated or fortified by later testimony. State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976); State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975).

The question before us is whether probable cause existed for the issuance of the warrant. Probable cause exists 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. Easter, supra; State v. Birkestrand, 239 N.W.2d 353, 356 (Iowa 1976); State v. Boer, 224 N.W.2d 217, 219 (Iowa 1974). The issuing officer cannot rely on mere conclusions to determine that probable cause exists. State v. Easter, supra; State v. Boer, supra.

We are persuaded in the instant case that the facts and circumstances upon which the issuance of the warrant was based fell short of establishing probable cause for the issuance of the warrant.

The sworn affidavit and abstract of oral testimony showed only that Goodrich stopped at defendant’s farmhouse between the time he met with Deputy Warner and the time he delivered the marijuana to the deputy. We do not hesitate to say the visit by Goodrich to the farmhouse, along with his earlier mention of a “contact,” cast upon defendant a certain aura of suspicion. Probable cause, however, requires more than mere suspicion. State v. Birkestrand, supra, 239 N.W.2d at 357; State v. Shea, 218 N.W.2d 610, 614 (Iowa 1974).

Our problem with the facts of this case is that there was nothing beyond the mere coincidence of timing of the visit of Goodrich to the McManus farmhouse to connect defendant with any wrongdoing. There was no indication from the affidavit for the search warrant or the abstract of the oral testimony that Goodrich’s auto did not already contain the marijuana before his visit to the farmhouse, that Goodrich took anything from the farmhouse to his car while there or that he even opened the trunk of the vehicle at any time he was at the farm. There was no indication of any independent information linking defendant to wrongdoing, of which the events of November 1 might have been corroborative. There was no indication that Goodrich or anyone else provided information tending to incriminate defendant. Defendant himself was apparently not observed on November 1; the information for the search warrant indicated the affiant did not know who occupied the house near Lone Tree. There was no indication of any other suspicious visits to defendant’s home.

The observations comprising the heart of the information for the search warrant in the instant case are similar in quality to observations tested for probable cause by the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. In Spinelli the affidavit contained, inter alia, the following representations [abstracted in the Court’s opinion]:

“1. The FBI had kept track of Spinel-li’s movements on five days during the month of August 1965. On four of these occasions, Spinelli was seen crossing one of two bridges leading from Illinois into St. Louis, Missouri, between 11 a. m. and 12:15 p. m. On four of the five days, Spinelli was also seen parking his car in a lot used by residents of an apartment house at 1108 Indian Circle Drive in St. Louis, between 3:30 p. m. and 4:45 p. m. [footnote omitted]. On one day, Spinelli was followed further and seen to enter a particular apartment in the building.

“2. An FBI check with the telephone company revealed that this apartment contained two telephones listed under the name of Grace P. Hagen, and carrying the numbers WYdown 4-0029 and WY-down 4-0136.” 393 U.S. at 413 — 414, 89 S.Ct. at 587.

The Supreme Court in Spinelli held the observations, even taken in connection with an informant’s tip [ultimately held to be lacking in sufficient support], fell short of the standard of probable cause. In particular, the Court said of the above observations:

“The first two items reflect only innocent-seeming activity and data. Spinel-li’s travels to and from the apartment building and his entry into a particular apartment on one occasion could hardly be taken as bespeaking gambling activity; and there is surely nothing unusual about an apartment containing two separate telephones. Many a householder indulges himself in this petty luxury.” 393 U.S. at 414, 89 S.Ct. at 588.

In the instant case, Goodrich’s stop at the farmhouse, even with its hint of suspicion due to the timing of the visit, was insufficient, without more, to support a finding of probable cause that defendant had committed or was committing an offense. Such a visit was sufficiently consistent with innocent behavior and activity that more was needed for the issuance of the warrant. We have said that innocent-appearing activity cannot be used to bolster an otherwise inadequate warrant application. State v. Easter, supra; State v. Boer, supra, 224 N.W.2d at 221.

It appears the suspicions of the law enforcement authorities in this case were substantially confirmed by the search.' Defendant’s residence was found to contain a substantial amount of marijuana. Nonetheless, a search is good or bad when it starts and does not change character because of its success. State v. Spier, 173 N.W.2d 854, 858 (Iowa 1970); State v. Hagen, 258 Iowa 196, 205, 137 N.W.2d 895, 900.

In a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684. Law enforcement authorities should be encouraged to seek warrants. Nonetheless, we are constrained to say the search warrant here was not properly issued.

We hold the showing in this case was insufficient to establish probable cause for the issuance of the search warrant. Accordingly, the trial court erred in overruling defendant’s motion to suppress the evidence yielded by the warranted search.

II. Our holding above renders unnecessary a consideration of defendant’s second issue stated for review. In any event, the pronouncements of this court in State v. Monroe, supra, would appear to answer all of the questions posed by the second division of defendant’s brief and argument.

For the reasons stated in Division I above, we must reverse.

This case is therefore reversed and remanded for a new trial.

REVERSED AND REMANDED.

MOORE, C. J., and MASON, RAWLINGS and LeGRAND, JJ. concur. UHLENHOPP, REYNOLDSON, HARRIS and McCORMICK, JJ. dissent.