State v. Olsen

315 N.W.2d 1, 1982 Iowa Sup. LEXIS 1292
CourtSupreme Court of Iowa
DecidedJanuary 20, 1982
Docket64030
StatusPublished
Cited by39 cases

This text of 315 N.W.2d 1 (State v. Olsen) 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. Olsen, 315 N.W.2d 1, 1982 Iowa Sup. LEXIS 1292 (iowa 1982).

Opinion

LARSON, Justice.

The defendant, Carl Eric Olsen, appeals from his jury conviction for possession of a controlled substance, marijuana, with intent to deliver, § 204.401(1), Code Supp. 1977. On appeal he presents four issues: The trial court’s (1) allowing a prosecution witness to testify beyond the minutes; (2) overruling his motion to suppress evidence obtained through searches; (3) allowing an expert witness to express an opinion on the defendant’s guilt or innocence by testifying his actions fell “within the method of operation of a person selling drugs for profit”; and (4) refusing to instruct the jury as requested concerning his use of marijuana as a part of his religion.

The State concedes error on the first issue and agrees the case must be retried. Accordingly, we address that issue only briefly. Because the problems surrounding the search, the opinion evidence, and the requested instruction on the religious use of marijuana will doubtless recur on retrial, we consider those issues as well.

I. Minutes of testimony.

Iowa Rule of Criminal Procedure 5(3) provides:

The prosecuting attorney shall, at the time of filing such information, endorse or cause to be endorsed thereon the names of the witnesses whose evidence the prosecuting attorney expects to introduce and use on the trial of the same, and shall also file with such information the minutes of evidence of such witness which shall consist of a notice in writing stating the name, place of residence and occupation of each witness upon whose expected testimony the information is based, and a full and fair statement of the witness’ expected testimony.

In State v. Walker, 281 N.W.2d 612, 614 (Iowa 1979), this court held that the minutes of testimony “must be sufficient — fully and fairly — to alert defendant generally to the source and nature of the evidence against him.”

*3 Olsen contends that in the present case the trial court erred in permitting Ron Foreman, a Newton police officer, to testify over objection as an expert witness on the packaging, distributing, and selling of marijuana because the State’s minutes of testimony stated only that

[wjitness, Ron Foreman, Newton, Iowa, will testify that he is a member of the Newton Police Department and that he is evidence custodian for said NPD; that he removed from the evidence locker at the Newton Police Department all of the items marked with the defendant’s name and mailed them to the BCI Laboratory in Des Moines, Iowa, for analysis. Witness will testify further in the matter.

Olsen asserts, and the State agrees, that Foreman’s testimony was thus limited, under Walker, to his duties as evidence custodian for the Newton Police Department.

This case is virtually indistinguishable from State v. Olsen, 293 N.W.2d 216, 220 (Iowa), cert. denied, 449 U.S. 993, 101 S.Ct. 530, 66 L.Ed.2d 290 (1980). There, the State’s minutes stated that a witness would testify about “the processing [of] evidence obtained from the defendant’s vehicle”; at trial, however, the State “asked him questions concerning methods of packaging and distributing marijuana.” The trial court overruled the defendant’s objections to the scope of the officer’s testimony. On appeal, the State acknowledged the trial court erred in these evidentiary rulings. The case was then remanded for a new trial. We reach the same result here.

II. The searches and seizures.

Olsen unsuccessfully moved to suppress money and marijuana seized from his person, and from the glove compartment and trunk of his car. At approximately 2:00 a. m. on January 19, 1978, Newton police officers Daniel McPherren and Joseph Lyman .were patrolling on Interstate Highway 80 near Newton. They observed a blue Cadillac Eldorado traveling east at a slow rate of speed, repeatedly crossing the centerline and the shoulder of the highway. The officers turned on the squad car’s signal lights and the Cadillac eventually pulled over to the shoulder of the interstate. The officers parked their car behind it. Olsen left his vehicle to meet the approaching officers, who noticed he was unsteady on his feet. McPherren, proceeding past Olsen to the Cadillac, shined his flashlight inside it but observed nothing suspicious. He returned to the shoulder area where Lyman was questioning Olsen.

Olsen stated that he had just left Des Moines and explained that his unsteady driving was the result of his being “kind of tired.” At Lyman’s request, Olsen handed over his driver’s license for the officer’s inspection, but had some difficulty in removing it from his wallet. The officer then requested to see the Cadillac’s registration papers. Olsen returned to his vehicle, entered it from the driver’s side, crawled across the front seat, and opened the glove compartment. Lyman, who had followed Olsen, and McPherren, who was watching from the passenger side of the car, shined their flashlights into the car’s interior. Lyman, upon Olsen’s opening of the door, could smell “a very strong odor of burned or burning marijuana,” and when Olsen opened the glove compartment to obtain the registration, both officers observed “two or three bundles of money laying in it.” McPherren also noticed a clear, plastic “sandwich bag” rolled up in the comer of the compartment. Lyman then ordered Olsen to unlock the passenger side door and he complied. McPherren confiscated the money and the plastic bag, which was found to contain fuses.

Lyman asked Olsen if he could search his person. In response to Olsen’s inquiry as to the purpose of the search, Lyman informed him that “he fit the general description” of a suspect in an armed robbery which had occurred in Des Moines that night, and that the search was “for weapons and anything else.” Olsen denied any participation in the robbery and told Lyman “to go ahead” and search him. A pat-down search was made, which revealed Olsen was carrying a bundle of several hundred dollars in his shirt pocket, as well as three marijuana cigarettes in *4 his right coat pocket. When questioned about the large amount of money in his possession, Olsen responded that “a friend” had given it to him to use in purchasing a car, but declined to identify him.

Olsen was then placed under arrest for “possession of marijuana, for one,” and was told “[w]e will let you know the rest of [the charges] when we get to the station.” Believing Olsen was the suspect in the Des Moines armed robbery, Lyman requested the Des Moines dispatcher to repeat the description of the suspect, which had been broadcast earlier in the night. He received information “which again fit Mr. Olsen’s description.” Meanwhile, McPherren began a search of the Cadillac’s interior, which did not reveal any contraband or weapons. McPherren then asked Olsen for the keys to the vehicle for the purpose of driving it to the police station and Olsen handed them to the officer. McPherren, however, used the keys to open the Cadillac’s trunk. 1 Inside was a brown paper bag which the officer found, upon “flash[ing] my light down inside” it, to contain “a whole pile of money, and underneath that, plastic bags.” McPherren “moved the money aside” and “could see it was marijuana” in the bags.

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Bluebook (online)
315 N.W.2d 1, 1982 Iowa Sup. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olsen-iowa-1982.