Petition — Trudo v. Iowa

«,, Supreme Court, U. &

FILED 3s.

JUL 20 1977

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

IN THE

1977-78 TERM

NO. 77-106.

RICK E. TRUDOC,

Petitioner

vs

STATE OF IOWA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT

OF IOWA

PHILIP F. MILLER

990 Des Moines Bldg.

Des Moines, Iowa

| 50309

ATTORNEY FOR PETITIONER

re ——— — 2

eet er

Page

4 Opinion Below. oeervrveeeeeeeeeeeee *eneee 1

) pg TN PSO YT CCCTTE TET ty eae 1

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OeOSSsOms PESOS sc ccccccececccosécs 1

Constitutional Provisions and

Become ebeceesoecseseeceseesere 1

CE ee ee eee 3

Reasons for Granting the Writ....... 5

I. IN THIS CASE THE IOWA SUPREME

COURT HAS DECIDED A FEDERAL QUESTION OF

SUBSTANCE, THAT A LOCAL PROCEDURAL RULE

CAN BE USED TO DENY PARTIES A HEARING ON

A MOTION TO SUPPRESS EVIDENCE.

II. THE IOWA SUPREME COURT HAS ALSO

DECIDED ANOTHER FEDERAL QUESTION: THAT

IT IS NOT A DENIAL OF DUE PROCESS OF LAW

FOR THE COURT TO EX PARTE, SUA SPONTE

ORDER CONSOLIDATION OF CHARGES AGAINST A

DEFENDANT AND TO DO SO IN THE ABSENCE OF

ANY FACTUAL HEARING OR SHOWING THAT THE

DEFENDANT DELIBERATELY BYPASSED SAME.

Conclusion.....ccc-. ib ha wk ble ob h én Whee 12

Appendix A...... aevccccosece eeewevece la

Opinion and Judgment of the Supreme Court

of Iowa, Filed April 20, 1977.

ey ee:

ii

CASES

Page

Blount v. United States, 404 F.2d

LZGA Ce Cabs BOGS) ovsveesvesse e .

Henry v. Mississippi, 379 U.S. 443

Ql. > a ae eoeeeeeeee eee 6,7

Brookhart v. Janis, 384 U.S. 1 (1966). 7

Anderson v. Nelson, 390 U.S. 523

it .icétene den bath baceadenueeden sé 7

Jackson v. Denno, 378 U.S. 368 (1964). 8

Pate v. Robinson, 383 U.S. 375 (1966). 9

United States v. Matlock, 415 U.S.

164 tt 60ebe see bkkoess eeeeeee ee 9

Draper v. United States, 378 U.S. 307

CR 6b dae 6 628% € er s-ebe uh beseueoaws 9

Jones v. United States, 362 U.S. 257

PRS 66646680668 bb Cet Oaweeeeetes 9

Gouled v. United States, 255 U.S. 298

gl >a | See eeeeeeee eoeeeneeeeeeneaeee 10

Mapp. v. Ohio, 367 U.S. 643 (1961).... ll

Fahy v. Connecticut, 375 U.S. 85

CROSS dP cc ceceecesecceseseeceveoeeuecs 11

Coolidge v. New Hampshire, 403 U.S.

Ge CEE? Kaceetevecdesosctssnccse &

iii

Page

Vale v. Louisiana, 399 U.S. 30 (1970). ll

Recznik v. City of Lorain, 393 U.S.

266 (19GB) oc ccccccccescccceccocece ll

Ker v. California, 374 U.S. 23 (1963). ll

Holt v. Commonwealth of Virginia, 381

i RD ee ie own ae 11

STATUTES

SS COB.6. Baer 620 védkkdenestkeuseeees 1,2

CONSTITUTIONAL PROVISIONS

U.S. Constitution amend IV...........- 1

U.S. Constitution amend XIV § l....... 2

Os OT TT TE Sn NT

IN THE

SUPREME COURT OF THE UNITED STATES

1977-78 TERM

NO.

RICK E. TRUDO,

Petitioner

vs

STATE OF IOWA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

The Petitioner, Richard E. Trudo,

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the Supreme Court of Iowa entered in this

proceeding April 20, 1977.

OPINION BELOW

The opinion of the Supreme court of

Iowa has been published at 253 N.W. 101

(1977) and appears as appendix A.

a-—- ---—-~@

- a

JURISDICTION

On the 20th day of April, 1977, the

Supreme Court of Iowa filed its opinion and

Judgment (see Appendix A). Petitioner has

filed no motion for a rehearing by the

Supreme Court of Iowa, of the matters

respectfully submitted herein, and has

neither requested nor received an Order

granting an extension of time within which

to file a petition for certiorari. The

jurisdiction of this court is invoked under

Title 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

Is it a denial of due process for the

trial court to ex parte, sua sponte order

consolidation for trial of charges contained

in two informations against the defendant

without a hearing?

Is it a denial of due process for the

trial court to ex parte find a waiver by

procedural default of important constitu-

tional claims and procedural rights (to

have illegally seized evidence suppressed).

Simply because the motion to suppress was

"untimely", absent a nearing or a showing

that the defendant intentionally bypassed

the local rule?

CONSTITUTIONAL PROVISIONS AND STATUTES

This case involves:

U.S. Const. amend. IV. The right of

the people to be secure in their persons,

houses, papers, and effects, against un-

reasonable searches and seizures, shall not

2

be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons

or things to be seized.

U.S. Const. amend. XIV §1. All persons

born or naturalyed in the United States and

. subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of

the United States; nor shall any State de-

prive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

28 U.S.C. 1257 (3). Final judgments

or decrees rendered by the highest court of

a State in which a decision could be had,

may be reviewed by the Supreme Court as

follows:

-.--.(3) By writ of certiorari, where

the validity of a treaty or statute of the

United States is drawn in question or where

the validity of a State statute is drawn in

question on the ground of its being repug-

nant to the Constitution, treaties or laws

of the United States, or where any title,

right, privilege or immunity is specially

set up or claimed under the Constitution,

treaties or statutes of, or commission held

or authority exercised under, the United

States.

3

STATEMENT OF THE CASE

Petitioner was convicted in Polk

County District Court, State of Iowa, of the

crimes of possession of marijuana and with

delivery of marijuana, both in violation of

§204.401(1), of the 1975 Code of Iowa, and

sentenced to imprisonment for two concurrent

five-year terms. The case was appealed to

the Supreme Court of Iowa, where the con-

viction was affirmed. State v. Trudo, 253

N.W. 2d 101 (1977).

The events leading to the trial and

conviction of Richard E. Trudo are as

follows:

On October 5, 1975 the Petitioner was

arrested and placed under the custody of

the State of Iowa.

On November 6, 1975, Petitioner was

charged by seperate county attorney infor-

mations with delivery of marijuana and

possession of marijuana with intent to de-

liver, both offenses under §204.401(1) of

the Iowa Code. Both charges were set for

trial on January 5, 1976. On November 12,

1975, Petitioner was arraigned and denied

appointment of counsel. On November 28,

1975, Petitioner privately retained counsel.

On December 8, 1975, the State of Iowa filed

a "Motion to Select Trial Charge" seeking

permission to try the charge of possession

with intent first and the delivery charge

at a later date pursuant to local Rule #6

(R. p.4, LL 28-34). This motion was not

resisted by petitioner.

4

On December 15, 1975, the trial court

denied the states’ motion and ex parte, sua

sponte ordered the consolidation for trial

of the charges contained in the two infor-

mations filed against him, (R. p. 6, LL 27-

28). On December 24, 1975 Petitioner filed

a Motion to Suppress asserting,inter alia,

that the arresting officers' entry on the

premises was obtained through trickery and

artifice and that they intentionally delayed

execution of the warrant in violation of

§§751.6 and 751.8, The Code, (R. pp. 7-9).

On December 26, 1975, the court entered an

ex parte order overruling the motion because

it was "untimely," (R. p. 9 LL 25-27).

District Court rule 26(F) required the mo-

tion to be filed within 17 days after ar-

raignment. On January 5, 1976, Petitioner

took exception to both rulings, (R. p. 10).

On January 5, 1976, the jury was selet-

ed and on January 7, 1976, the jury returned

a verdict of guilty on both informations.

Prior to the testimony of police officer

Cramer, Petitioner objected to his testimony

on the grounds stated in his motion to sup-

press, (R. p. 12 LL 12-18). When the State

rested, Petitioner renewed his motion to

suppress and strike testimony on the grounds

urged in his motion to suppress and the same

was overruled, (R. pp. 25-26). On February

6, 1976, Petitioner was sentenced to a term

not to exceed five years and on February 6,

1976 filed Notice of Appeal.

At the appellate level the defense

counsel raised the issues by the assignment

of error that the trial court erred in deny-

5

ing Petitioners pre-trial motion to suppress,

ex parte, and in ordering on its own motion

the consolidation of soth informations, ex

parte.

The Supreme Court of Iowa rejected this

assigned error and affirmed the conviction.

REASONS FOR GRANTING THE WRIT

I. IN THIS CASE THE IOWA SUPREME COURT

HAS DECIDED A FEDERAL QUESTION OF SUBSTANCE,

THAT A LOCAL PROCEDURAL RULE CAN BE USED TO

DENY PARTIES A HEARING ON A MOTION TO SUP-

PRESS EVIDENCE.

II. THE IOWA SUPREME COURT HAS ALSO

DECIDED A FEDERAL QUESTION: THAT IT IS NOT

A DENIAL OF DUE PROCESS OF LAW FOR THE COURT

TO EX PARTE, SUA SPONTE ORDER CONSOLIDATION

OF CHARGES AGAINST A DEFENDANT AND TO DO SO

IN THE ABSENCE OF ANY FACTUAL HEARING OR

SHOWING THAT THE DEFENDANT DELIBERATELY

BYPASSED SAME.

A review of the decisions of the Su-

preme Court of the United States indicates

that the questions presented in this peti-

tion for a Writ of Certiorari have yet to

be decided.

Petitioner respectfully submits that

the Iowa Supreme Court committed reversible

error in affirming the trial courts i .ling

ex parte on its own that the charges should

be consolidated and in denying for "proce-

dural default" Petitioners assertion of a

federal constitutional right.

6

In regard to the consolidation, the

Petitioner submits it was error for the court

ex parte to order consolidation without

notice to the state and defendant. The

trial court was not in a position to ex

parte fairly balance the need for consolida-

tion as opposed to the States' Motion for a

seperate trial date which was not resisted

by Petitioner. §204.408 of the Iowa Code

does not provide for joinder by court motion

or ex parte ruling. See, §204.408; IOWA

CODE, UNIFORM CONTROLLED SUBSTANCES.

Petitioner was prejudiced by the con-

solidation. The State was able to present

evidence at the joint trial which would not

have been admissible in a seperate trial.

The jury may have cumulated evidence of

seperate crimes. The jury may also have

improperly inferred a criminal disposition

and treated the inference as evidence of

guilt. Petitioner was confounded and em-

barrassed in presenting different defenses

to the different charges. Relief is war-

ranted where there is such prejudice.

Blount v. United States, 404 F.2d 1283 (D.C.

Cir. 1968).

In regard to the ex parte ruling deny-

ing his motion to suppress as being untimely

by a local Rule of Practice, Petitioner

submits that giving effect to a local rule

of practice for its own sake is "to force

resort to an arid ritual of meaningless

form." Henry v. Mississippi, 379 U.S. 443,

449 (1964). “A litigants procedural

defaults in state proceedings do not pre-

vent vindication of his federal rights un-

less the States’ insistence on compliance

7

with its procedural rule serves a legitimate

state interest." Id. at 448. "If it does

not, the state procedural rule ought not be

permitted to bar vindication of important

federal rights." Id. Any legitimate inter-

est of the State in avoiding delay and waste

of time in the disposition of the case, by

adhering ritualistically to a local rule of

practice, could have been overcome by the

defendant's motion to suppress renewed at

the close of the state's evidence. Id.

Unless the records show that Petitioner

deliberately and intentionally bypassed the

local rule requiring motions to suppress to

be filed 17 days after arrainment, a finding

of waiver or procedural default should not

~2 done ex parte by the trial court. Id.

at 410. Although arising in a state crim-

inal trial, the question of waiver of a

federally guaranteed constitutional right is

a federal question controlled by federal law.

Brookhart v. Janis, 384 U.S. 1 (1966).

There is a presumption against waiver of an

accused's constitutional rights. Id. For

a waiver to be effective, it must be clearly

established that there was an intentional

relinquishment or abandonment of a known

right or privilege. In Anderson v. Nelson,

390 U.S. 523 (1968), this court held that

the late filing, by one convicted of crime

in a state court, of a petition for a

hearing in the highest court of the state

does not constitute a deliberate by pass of

state remedies or procedure, precluding him

from habeas corpus relief in federal courts.

In this case, like Anderson, the late

filing of the motion to suppress should not

8

preclude Petitioner from relief. It was not

a deliberate or intentional bypass of the

procedure. The record shows petitioner at

arraignment was denied court appointed

counsel by the same trial judge (R. p.4 ll.

1-5). The same court considered Petitioner's

motion for continuance made by counsel who

was retained November 28, 1975. This showed

in itself that Petitioner did not have his

own attorney until i6 days after arraignment.

Thus, the court file itself conclusively

shows an abuse of discretion by the trial

court in rigidly applying the local rule to

defeat a 4th Amendment claim.

The trial court should have at least

set the matter of waiver by procedural de-

fault under local rule for hearing where a

violation of a federal constitutional right

is involved. Petitioner alleged that his

"consent" was obtained by fraud and trickery

and was involuntary. This matter should

have been heard by the court as are questions

concerning the voluntariness of confessions.

A defendant in a criminal case has a con-

stitutianal right at some stage in the pro-

ceedings to object to the use of an allegedly

involuntary confession and to have a fair

hearing and a reliable determination on the

issue of voluntariness. Jackson v. Denno,

378 U.S. 368 (1964). In Jackson, this

court said that the United States Supreme

Court will remand the case to District Court

to allow the state a reasonable time to

afford the prisoner a hearing in compliance

with correct standards or a new trial fail-

ing which he is entitled to his release.

This court has also held that a defendant

9

is entitled to a hearing on a sanity issue,

the court's failure to grant a hearing,

being a deprivation of defendant's consti-

tutional right to a fair trial. Pate v.

Robinson, 383 U.S. 375 (1966).

The Petitioner was prejudiced in that

rules of evidence normally applicable in

criminal jury trials do not operate with

full force at hearings before the judge to

determine the admissibility of evidence, and

Petitioner was denied the opportunity to

bring forth evidence at a hearing that would

be inadmissible or prejudicial at trial in

front of a jury. Federal Rules of Evidence

rules 104(a), 1101d(1) 28 U.S.C.;, United

States v. Matlock, 415 U.S. 164 (1974);

Draper v. United States, 358 U.S. 307 (1959).

The only requirement at common law is

that a motion to suppress should be filed

before trial. See Jones v. United States,

362 U.S. 257 (1960). In Jones at 245, this

court said in regard to a procedural rule

of standing:

As codified, the rule is not

a rigid one, for under Rule 41(e)

"the court in its discretion may

entertain the motion (to suppress)

at the trial or hearing." This

qualification proves that we are

dealing with carrying out and

important social policy and not

a narrow, finicky, procedural

reguirement. This underlying

policy likewise precludes appli-

cation of the Rule so as to

compel the injustice of an

10

internally inconsistent conviction...

The Government must, in any case,

not permit a conviction to be

obtained on the basis of possession,

without the merits of a duly made

motion to suppress having been

considered.

See also, Senate File, IOWA CRIMINAL LAWS,

61ST General Assembly Chapter 2 §1301 Rule

10(2) (c) and Rule 11 with which the local

rule in the case at bar is clearly contrary

to and in conflict. Rule 10(2)(c) and Rule

11 only require that a motion to suppress be

"made before trial."

In Gouled v. United States, 255 U.S.

298, 312 (1921), this court said that "Where,

in the progress of a criminal trial, it be-

comes probable that there has been an un-

constitutional seizure of papers of the

accused, it is the duty of the trial court

to entertain an objection to their admission

in evidence against him or a motion for their

exclusion, and to decide the question as then

presented, even where a motion to return the

papers has been denied before trial and by

another judge." This further supports

Petitioners' contention that local procedural

defaults should not bar a partie's important

and substantial constitutional rights.

All evidence obtained by searches and

seizures in violation of the 4th Amendment

of the Federal Constitution is, by virtue

of the due process clause of the 14th Amend-

ment, guaranteeing the right to privacy free

from unreasonable state intrusion, inadmis-

sible in a state court as it is in a federal

ll

case. Mapp v. Ohio, 367 U.S. 643 (1961).

No man is to be convicted on unconstitutional

evidence. Id. This court has consistently

held that a state conviction of crime must

be reversed where unconstitutionally obtained

evidence prejudicial to the defendant was

erroneously admitted at his trial. Fahy v.

Connecticut, 375 U.S. 85 (1963); Coolidge v.

New Hampshire, 403 U.S. 443 (1971); Vale v.

Louisiana, 399 U.S. 30 (1970). This court

has clearly showed its policy in this area

by granting certiorari and reversing because

a motion to suppress should have been granted

at the trial. Recznik v. City of Lorain,

393 U.S. 166 (1968).

in cases involving fundamental consti-

tutional rights, findings of state courts

are by no means insulated from review by

the United States Supreme Court. Ker v.

California, 374 U.S. 23, (1963). The

fundamental constitutional criteria estab-

lished by this court must be respected by

state courts. Id. The constitutional right

of a defendant to be heard in his defense

necessarily embodies the right to file

motions and pleading essential to present

claims and raise relevant issues. Holt v.

Commonwealth of Virginia, 381 U.S. 131 (1965).

In sum, Petitioner contends that the

trial ccurt erred in determining ex parte

important and substantial rights of this

defendant absent any hearing or opportunity

under due process of law to be heard by this

defendant.

12

CONCLUSION

For thes reasons, a writ of certiorari

should issue to review the judgment and

opinion of the Supreme Court of Iowa.

Respectfully submitted,

-

a

Philip F. Miller

APPENDIX

la

APPENDIX A

IN THE SUPREME COUFPT OF IOWA

STATE OF IOWA, :

Filea April 20, 1977

Appellee :

Vv.

372

RICK E. TRUDO, : 59279

Appellant :

Appeal from Polk District Court-A. B.

Crouch, Judge.

Defendant appeals from convictions of

possession of marijuana and delivery of

marijuana, in violation of §204.401(1), The

Code.--AFFIRMED.

Philip F. Miller, of Des Moines, for

appellant.

Richard C. Turner, Attorney General,

Richard H. Doyle, IV, Assistant Attorney

General, and Ray A. Fenton, County Attorney,

for appellee.

Considered en banc.

REYNOLDSON, J.

Defendant was charged by separate county

attorney informations with possession of

marijuana and with delivery of marijuana,

2a

violations of §204.401(1), The Code. These

Charges were consolidated by court order,

and upon trial defendant was convicted and

sentenced to imprisonment for two concurrent

five-year terms. He appeals and we affirm.

There was strong evidence in the record

from which the jury could have found the

following facts.

On October 5, 1975, four officers of

the Des Moines M.A.N.S. (Metropolitan Area

Narcotics Squad) unit went to 1424 23rd

Street, Des Moines, to execute a search

warrant. Defendant was in the front yard

talking to a neighbor. The officers told

defendant they were looking for Frank

(defendant's roommate) because they wanted

to buy some marijuana from him. Defendant

replied Frank had moved but he could handle

anything they wanted because he was Frank's

supplier.

Defendant invited the undercover police-

men into the house where they negotiated a

purchase of one pound of marijuana for $140.

Defendant admitted leaving the house to

retrieve five one pound packages of marijuana

from his "stash" in the bushes at the end

of 24th Street. Upon his return he dumped

these packages out of a green garbage bag

onto the floor and told the officers to take

their choice.

The policemen offered defendant two

one-hundred-dollar bills. Defendant went

upstairs for change, taking the remaining

four bags of marijuana with him. Upon his

return the money changed hands and he was

3a

then placed under arrest.

At this point, approximately 45 minutes

after the officers arrived at the premises,

they executed the search warrant and search-

ed the premises. They recovered the four

one-pound bags of marijuana and also found

a quantity of other material and drug related

paraphernalia.

Upon this appeal defendant asserts trial

court erred in consolidation of the charges

for trial, overruling his motion to suppress

evidence, admission of expert testimony,

denial of his mistrial motions based on pro-

secutorial misconduct, and in the jury in-

structions. We consider these asserted

errors in the divisions which follow.

I. Consolidation of charges.

Defendant asserts he was denied due

process by trial court's ex parte, sua sponte

order to consolidate for trial the charges

contained in the two informations filed

against him.

Defendant was charged in one information

with possession of marijuana with intent to

deliver and in a separate information with

delivery of marijuana, both offenses under

§204.401(1), The Code. Both charges were

set for trial on January 5, 1976.

The State filed a "Motion to Select

Trial Charge" seeking permission to try the

possession charge first. This motion was

not resisted by defendant. Trial court

denied the motion and sua sponte ordered a

"joint trial".

4a

Defendant argues due process requires

a hearing before a trial court can decide

the consolidation issue. Defendant relies

on language in State v. Denato, 173 N.W. 2d

576 (Iowa 1970). We note defendant, in

district court, merely excepted to trial

court's consolidation order. He never filed

a motion for severance or requested a hearing

Neither below nor here does he attempt to

show how he was prejudiced by the order he

attacks.

~~

~ In State v. Denato, supra, we were con-

cerned with an ex parte order directing the

State to disclose the identity of an inform-

ant. The factual determination which we

there held necessitated a hearing is more

onerous than the consolidation question

which ordinarily may be resolved by a study

of minutes of testimony already before the

court.

It is clear the county attorney could

have combined these two charges in a single

information. Section 204.408, The Code.

In that event, defendant would have been

required to make a motion for severance. It

would have been his burden to show his inter-

est in receiving a fair trial uninfluenced

by the prejudicial effects which could re-

sult from a joint trial outweighed the

State's interest in judicial economy. See

Smith v. United States, 357 F.2d 486 (5 Cir.

1966).

Where, as here, the county attorney

elects to file two separate informations on

charges which could have been combined, we

hold trial court, upon studying the infor-

5 a

mations and attached minutes of testimony,

may apply the above balancing test and

order the charges consolidated for trial.

Of course, either the State or defendant may

then file a severance motion and obtain a

hearing thereon.

We adopt the procedure found in A.B.A.

Standards Relating to Joinder and Severance

§3.1l(a), at 46-47 (Approved Draft, 1968):

"3.1 Authority of court to act

On own motion. (a) The court

may order consolidation of two

Or more charges for trial if the

offenses, and the defendants if

there is more than one, could

have been joined in a single

charge.

(b) kx"

See State v. Reynolds, N.W.2d, P

(Iowa, filed January 19, 1977); 2 Wharton,

Criminal Procedure §302, at 149-154 (12th ed.

C. Torcia 1975); Annot., 59 A.L.R.2d 841

(1958); §§773.37, 773.38,773.42, The Code.

We find no trial court error with re-

spect to the consolidation order.

II. Ruling on suppression motion.

December 24, 1975, defendant filed a

motion to suppress, asserting, inter alia,

the officers’ entry on the premises was

obtained through trickery and artifice and

that they intentionally delayed execution

of the warrant in violation of §§751.6 and

751.8, The Code.

6a

Trial court entered an ex parte order

overruling the motion because it was "un-

timely". District Court rule 26(F) required

the motion to be filed within 17 days after

arraignment. See Iowa Civil Liberties Union

v. Critelli, 244 N.W. 2d 564 (Iowa 1976),

where we held the rule was no unconstitution-

ally vague, it did not deny equal protection,

it did not violate a defendant's statutory

rights, and district judges had common-law

authority to adopt it.

Nonetheless, defendant first contends

trial court, rather than overruling his

motion ex parte on the basis of a local pro-

cedural rule, should have granted a Jackson

v. Denno type hearing on the merits. See

Jackson v. Denno, 378 U.S. 368, 84 S.Ct.

1774, 12 L.Ed.2d 908 (1964). Failure to

provide the hearing, he argues, violated his

constitutional fair trial rights. -

Defendant was arraigned November 12,

1975. He retained counsel (not his present

attorney) on November 28, 1975. As we have

indicated, the motion to suppress filed

December 24, 1975 was overruled as untimely.

When trial commenced January 5, 1976, de-

fendant "excepted" to this ruling. He un-

successfully objected to offers of exhibits

found on the premises for the same reasons

asserted in his motion and renewed the

motion when the State rested.

Fifth judicial district rule 26(F),

mandated by criminal case congestion in Polk

County, was designed to meet the speedy trial

requirements of §795.2, The Code. Jowa Civil

Liberties Union v. Critelli, supra, 244 N.W.

7a

2d at 570. That enactment in turn repre-

sented a statutory implementation of the

speedy-trial provisions of the federal and

state constitutions. State v. Satterfield,

257 Iowa 1193, 1195, 136 N.W.2d 257, 258,

(1965).

In Gritelli we noted the rule's opening

clause creates "an exception permitting

suspension of the rule for good cause." 244

N.W.2d at 569-570. Defendant did not utilize

this escape valve. He made no effort to

show the court any excuse for not timely

filing the motion to suppress. Under these

circumstances, we hold he waived his right

to hearing and to have this evidence suppres-

sed prior to trial. The motion was properly

denied.

But defendant's brief, charitably inter-

preted, additionally contends trial court

should have sustained his trial objections

to the evidence obtained in the search. The

State does not raise, nor are we required to

reach, the issue whether defendant may assert

as grounds for objection the same grounds

alleged in his untimely motion to suppress.

We examine the merits of defendant's objec-

tions.

Defendant alleges entrance into the pre-

mises was gained by fraud, stealth, ruse,

artifice and subterfuge. He argues the re-

sulting search was invalid under Amendment 4,

United States Constitution, citing Gouled v.

United States, 255 U.S. 298, 41 S.Ct. 261,

$5 L.Ed. 647 (1921), and People v. Reeves,

61 Cal.2d 268, 38 Cal. Rptr. 1, 391 P.2d 393

(1964).

8a

In both of those cases there was no

search warrant and no reasonable grounds

existed to search before the entry. The

trickery involved was to gain entry for

search pruposes.

Those cases are distinguishable from

the situation before us. Here the officers

went to the premises armed with and intend-

ing to execute a search warrant. An oppor-

tunity to "make a buy" presented itself and

they pursued it. The subterfuge involved

was with respect to an undercover buy. This

type of artifice has been approved by our

court. State v. Leonard, 243 N.W.2d 75, 80

(Iowa 1976); State v. Tomlinson, 243 N.W.2d

551, 554 (Iowa 1976) ("We have upheld the

right of the State to engage in artifice and

stratagem to apprehend those engaged in crim-

inal activity”).

Defendant additionally asserts the evi-

dence seized should have been excluded be-

cause the search was not “immediate”, §751.6,

The Code, nor was the warrant executed

"forthwith", §751.8, The Code.

That the legislature foresaw circum-

stances might require some flexibility is

disclosed by another provision of the same

chapter:

"751.12 Return of warrant. A

search warrant must by executed

and returned to the magistrate

who issued it within ten days

after its date. After the ex-

piration of such time the warrant,

unless executed, is void."

:

9a

oT

A search warrant is issued when a proper

showing is made before a magistrate that

probable cause exists to believe §751.3

property is kept in or on the premises to be

searched. See §751.5, The Code. Where

there is delay in executing the warrant,

there is a danger the situation will change

so that circumstances which supported the

magistrate's determination of probable

cause will no longer exist.

On the other hand, most courts con-

fronted with the statutory "forthwith" and

"immediate" language have seasoned their

interpretations with a dash of pragmatism.

Such terms have been interpreted as re-

quiring service within a reasonable time,

depending on the facts and circumstances of

each case. See, e.g., United States v.

Harper, 450 F.2d 1032, 1043-1044 (5 Cir.

1971); Spinelli v. United States, 382 F.2d

871, 885 (8 Cir. 1967), rev'd. on other

grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.

2d 637 (1969); Commonwealth v. Cromer, 313

N.E. 2d 557 (Mass. 1974).

In the case before us, the officers

were delayed only 45 minutes, the time re-

quired for an unanticipated drug buy.

Execution of the warrant would have destroyed

that opportunity. We hold the delay was

reasonable and the evidence was not subject

to exclusion on this ground.

III. Prosecutorial misconduct.

Defendant asserts trial court erred in

overruling two motions for mistrial.

10 a

The first motion for mistrial followed

questions asked by the prosecutor concern-

ing marijuana stems and stalks found in bed-

rooms of third persons during the search and

the attempted introduction of this material

into evidence. Trial court sustained defen-

dant's objections to questions concerning

this material and admonished the jury to

disregard it.

While defendant characterizes the places

this material was found as "third persons'

bedrooms", at another place in his brief one

of these persons is designated as a "roommate".

One such person had moved from the house.

There is a clear inference in the testimony

defendant had control over personal property

located in this person's "bedroom" and in-

tended to move it to a new location.