Petition — Gates v. Iowa

: Stueme Court, U. & -

FILED

\

| AUG 8 1978 |

MICHAEL ODA IR. CLERK

In The

Supreme Court of the United States

October Term, 1978

fa’

Vv

mo. — 3S -227

fy

Vv

LARRY GATES,

Petitioner,

Vs.

STATE OF IOWA,

Respondent.

fy.

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

ry

Vv

Artuur L. BuzzeLtu

Newport, Buzze.u, Liesse & Fortin1

306 Citizens Federal Building

Davenport, Iowa 52801

Telephone: (319) 323-9963

Counsel for Petitioner

Dated: July 26, 1978

COCKLE PRINTING CO., 1822 St. Mary’s Ave., Omaha

i

TABLE OF CONTENTS

Pages

ARR a a Mac Reta nlsE ar FE SLE EAST ETE,

aE RAE CET ey ee DOr ucmeentaane ae

gE ante Nala OME OIC

Constitutional Provisions 00000... 3

Statement of the Case ncnnnnccccccceccccssssessscsnessemeee 4

Reasons for Granting Writ

I. The courts below clearly misapplied past de-

Sn te <I a ne .nclcetiemineae (

II. There are conflicts in the lower courts over

what constitutes “articulable facts” justifying

i I | ance e teeta is

III. This case presents the issue of what type of

corroboration is necessary for the police to

make a stop based on Witeley v. Warden. .......... 11

IV. The decision of the trial court that the consent

given to the search by petitioner reflected know-

ing and voluntary consent conflicts with this

eourt’s holding in Bumper v. North Carolina and

Schneckloth v. Bustamonte. 0...

V. The holding of the Iowa Court of Appeals that

the entire seareh was valid as one incident to

a valid arrest conflicts with this court’s rulings

on the scope of searches incident to arrest, and

those made after any exigency situation has

NRE EIS IRE Ce RE ET ea haere 14

il

TABLE OF CONTENTS—Continued

Pages

Appendix A—Ruling on Motion to Suppress of the

Iowa District Court, Filed December 17,

1976. ..App. 1

Appendix B—Opinion of the Court of Appeals of

Iowa, Filed March 29, 1978 App. 5

Appendix C—Order of the Supreme Court of Iowa,

Filed May 12, 1978 ......... App. 19

CITATIONS

CasEs :

Brown v. Illinois, 422 U. S. 590 (1975) 14, 15

Bumper v. North Carolina, 391 U. S. 543 (1968).......... 12,13

Cady v. Dombrowski, 413 U. S. 433, 93 S. Ct. 2523,

es ee cst 14

Carpenter v. Sigler, 419 F. 2d 169 (8 Cir. 1969) 0.0... 11

Carter v. State, 237 S. E. 2d 656 (Ga. 1977) oo. 11

Chambers v. Maroney, 399 U. S. 42 (1970) cu 14

Chimel v. California, 395 U. S. 752 (1969) 00. 14

Commonwealth v. Greber, 331 A. 2d 523 (Pa. 1975)..... 11

Commonwealth v. Lanoue, 251 N. E. 2d 894 (Mass.

NO anna ae

Holder v. State, 233 S. E. 2d 501 (Ga. 1977) WW... 12

In the Matter of Allen L., 399 N. Y.S. 2d 233,

(S. Ct. App. Div. 1977)

bee

lll

TABLE OF CONTENTS —-Continued

Pages

Mullins v. State, 353 So. 2d 605 (Fla. 1978) 0000... 10

New York v. Earl, 353 N. E. 2d 1037 (N. Y. 1976),

Core GG. Gee U. Oy Cee Clots) oe 10

People v. Lowry, 230 A. 2d 907 (N. J. 1967) .............. 11

Schneckloth v. Bustamonte, 412 U. 8. 222 (1972) ........... 12

sentry ¥. Gh, 32 'U. S. I (IS) —____.__ 7, 9,10, 12

United States v. Chadwick, 75-172 (1977) ........W....... 14, lo

United States v. Craemer, 555 F. 2d 594 (6 Cir. 1977) 12

United States v. Ivey, 546 F. 2d 139 (5 Cir. 1977)... 12

United States v. Jordan, 530 F. 2d 722 (6 Cir. 1976)... 11

United States v. Montgomery, 561 F. 2d 875 (C. A.

Cn I rt a ciscniabias 11

United States v. Robinson, 536 F. 2d 1298 (9 Cir.

RR RCA SCE ARNE Wer BSE eevee ote ee Sea 11

United States v. Wood, 545 F. 2d 1124 (8 Cir. 1976) 12

United States v. Zapata, 535 F. 2d 359 (7 Cir. 1976) 11

Whiteley v. Warden, 401 U. S. 560 (1970) ow. 11

Wong Sun v. United States, 871 U. S. 471 (1963)....14, 15

STATUTES:

28 U.S.C. 1257 (3)

i)

iv l ’

In The |

aranaetnab 8 Supreme Court of the United States

ConstiTuTIONAL Provisions: October Term, 1978

Sixth Amendment to the United States Constitution 3

Fourteenth Amendment to the United States Consti- 0

ution ae?

No.

MISCELLANEOUS:

i)

Consumers Research Magazine, Vol. 61, No. 5, May,

1978, p. 22 Seerreeetre (tt retr reer et itr tri ttt Titi te titre ittr rei ii titre titi) Terr t itt Terre ttt tere r errs 9 LARRY GATES,

Petitioner,

Vs.

STATE OF IOWA,

Respondent.

Oo

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

°

The Petitioner, Larry Gates, respectfully prays that

a writ of certiorari be issued to review the judgment of

the Supreme Court of Iowa denying Petitioner’s Applica-

tion for Further Review of a Decision of the Court of

Appeals of Lowa, entered on May 12, 1978, and to review

the opinion and judgment of the Court of Appeals of Iowa

entered in this proceeding on March 29, 1978.

OPINIONS BELOW

The Ruling on Motion to Suppress of the Iowa Dis-

trict Court appears at Appendix A.

The opinion of the Court of Appeals of Iowa is un-

reported and appears at Appendix B.

The Order of the Supreme Court of Iowa denying re-

hearing is unreported and appears at Appendix C.

)

JURISDICTION

The Order of the Supreme Court of Iowa was en-

tered on May 12, 1978. See Appendix C, infra. This Pe-

tition for Certiorari was filed less than 90 days after the

date aforesaid. The jurisdiction of this Court is invoked

under 28 U.S. C. Section 1257(3).

©

QUESTIONS PRESENTED

1. May police officers rely on a conclusory tip via

citizens band radio, that a certain vehicle in a certain

place is being driven “erratically,” to make an investi-

gatory stop, where the officers’ only view of the vehicle

was when it was legally stopped at a traffic signal?

2. Has a person knowingly and voluntarily waived

the Warrant Requirement when, after having asked the

officer if he had a search warrant, and after the officer

replied, “No, but I ean get one,” that person then gave

his consent to search his vehicle?

3. Must officers, who have removed all passengers

from a vehicle and who have placed the driver and one

of the passengers under arrest and in handeuffs, and who

have no reason to believe there is any contraband or

valuables in the locked trunk, obtain a warrant before

searching the locked trunk of that vehicle?

ray

Vv

CONSTITUTIONAL PROVISIONS

Constitution of the United States, Amendment IV:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not 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.”

Constitution of the United States, Amendment XIV:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and the state where-

in they reside. No state shall make or enforce any

law which shall abridge the privileges and immunities

of citizens of the United States, nor shall any state

deprive any person of life, liberty or property, with-

out due process of law.”

co)

STATEMENT OF THE CASE

1. Facts

At approximately 1:00 a.m. on September 8, 1976,

two officers of the Arnold’s Park, Iowa Police (Wendell

Kilts and Thomas Loebach) received a call over the citi-

“ens band radio in their squad car that a blue and white

Chevrolet in Arnold’s Park was being driven “errati-

eally.”' The officers recognized the ealler by his citizens

band “handles,” “Starsky” or “Tennis Ball,” (T-72) as

oue Tony Rogers. Rogers, at the time a Kirby Vacuum

Cleaner salesman, had been a part-time Special Deputy

with the Arnold’s Park Police for approximately three

months during the summer of 1976. He had always

worked with another officer, only on weekends or during

peak periods, and had no special police training or other

experience in law enforcement (T-15). The record does

not show that Rogers had ever personally participated

in a traffie stop or that he had even before given any

reliable information to the police.

Shortly after the citizens band radio eall, Officers

Kilts and Loebach observed the previously described

car, with four occupants, legally stopped at a traffic

signal (T-44). Relying entirely upon the “tip” that the

ear was being driven “erratically,” the officers pulled up

1 The Court of Appeals of lowa treated the call as a “possible

drunk driver” call fe B, p. 1). Although there was

some testimony on this point, the Trial Court in its Ruling

on the Motion to Suppress, treated the call as one reporting

“erratic” driving (Appendix A, p. 1). Since the Trial Court

was present to hear the testimony of the witnesses, its con-

clusion about the contents of the call must be accepted in

the absence of an abuse of discretion.

5

next to the car and motioned for the driver, Petitioner

Larry Gates, to stay where he was.

Having exited the squad ear, Kilts ordered Peti-

tioner Gates out of the car in order to observe his be-

havior. At the same time, Loebach went to the passen-

ger side of the car and observed, with the aid of a flash-

light, the front seat passenger, later identified as Dean

Soper, attempting to stuff what appeared to be a pipe

under his legs. Further, Loebach saw an open can of

beer on the floorboard between Soper’s legs. Loebach

then ordered Soper out of the ear and seized the pipe

and can of beer. Loebach showed these items to Kilts,

and the officers ordered Gates and Soper to step be-

hind the ear and empty their pockets (T-87).

At this point, Officer Kilts asked Gates if he was

the owner of the car and requested permission to search

it. Gates replied that the car was his and inquired

whether the officers had a warrant. Kilts said that they

did not have a warrant but added, “I ean get one.”

Gates then said, “Go ahead and search” (T-48). Kilts

then instructed Loebach to search the front part of the

vehicle (T-74). Through his search, Loebach found some

money and a quantity of marijuana in the glove compart-

ment and some marijuana in a jar on the console (T-109,

111). Loebach showed these items to Kilts who then

informed Gates and Soper that they were under arrest

(T-52).

After having removed the other two passengers from

the vehicle and while Gates and Soper were handcuffed,

Officer Loebach grabbed the car keys from the ignition

and opened and searched the trunk of the vehicle where

he found two coffee cans containing, among other things,

6

some notes, money, and a small quantity of Phencycli-

dine (PCP). The car was then towed to the police sta-

tion.

On October 5, 1976 a County Attorney’s Information

was filed against Larry Gates charging him, inter alia,

with possession of a controlled substance with intent to

deliver.

On November 26, 1976 a hearing was conducted on

the Defendant’s timely Motion to Suppress Evidence,

evidence seized as a result of the September 8 stop. This

motion was ‘iled on October 15, 1976. The motion al-

ledged, inter alia, that the search and seizure of the

vehicle were unreasonable, that the search was not inci-

dent to arrest, nor based on consent or probable cause,

nor items seized under the “plain view” exception, and

that all items seized as a result of the unreasonable

searches and seizures should be suppressed. Defendant

invoked the protections of the Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitu-

tion as a basis for his motion (Appendix A, p. 2).

On December 17, 1976 District Judge Joseph Hand

ruled that “the stopping Officer had specific cause to

reasonably believe that criminal activity was taking

place, ... ” and that Gates’ consent was knowing and

voluntary. Thus, Defendant’s Motion to Suppress was

denied (Appendix A, p. 2).

At Defendant Gates’ trial by jury defense counsel

re-urged his objection to the seized evidence at several

intervals (T-49, 103). Each time, the objection was over-

ruled. On January 14, 1977, Gates was found guilty of

possession of marijuana with intent to deliver and pos-

~!

session of phencyclidine with intent to deliver. -On April

15, 1977, Gates was sentenced to serve two concurrent

d-year sentences at the Iowa Men’s Reformatory in Ana-

mosa, Lowa.

Defendant Gates appealed his conviction to the Iowa

Supreme Court alleging, inter alia, that the trial court

erred in not granting Defendant’s Motion to Suppress.

On March 29, 1978, the Court of Appeals of Iowa af-

firmed Gates’ conviction.

Petitioner then filed an Application for Further Re-

view of a Decision of the Court of Appeals of Iowa with

the Supreme Court of Lowa. The Supreme Court of Iowa

denied a rehearing without opinion, on May 12, 1978.

It is from this judgment that Petitioner Larry Gates

seeks relief.

REASONS FOR GRANTING WRIT

I. The courts below clearly misapplied past decisions of

this court.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L. Ed. 2d 889 (1968), this Court stated that a police

officer must have “specifie and articulable facts” upon

which to base a warrantless intrusion upon a citizen’s

Fourth Amendment freedoms. ‘These facts may be sup-

plemented with fair inferences based on the particular

officer’s experience in the field, but the standard is an

objective one that balances the interests of the State

against the interests of the citizen.

8

Here, the stopping officers received a call over a

citizens band radio from a citizen who had, at most, only

three months of experience as a part-time special deputy,

no training in law enforcement, and no official connec-

tion with the police department (T-23). The only infor,

mation that the caller gave was that the car was being

driven “erratically” (T-42). The caller failed to give

any of the underlying circumstances for his conclusion

about the way the car was allegedly driven. Clearly, an

assertion that a car is being driven “erratically” does not

constitute “specific and articulable facts” justifying an

investigatory stop. “Erratic” driving can mean many

different things. A person who swerves to avoid an

object or a small animal in the road could be said to

be driving “erratically.” One who changes lanes fre-

quently on the freeway or who drives a bit to the left

on an unmarked gravel road could be said to be driving

“erratically.” Here, there is testimony that Petitioner’s

car was crossing a rough potholed road along the back-

side of the amusement park, on which there were no

lines, curbs or median, on which there was no grade

and which ran directly through a parking lot on which

there was no oncoming traffic at the time the caller —

observed it (T-29, 30). Clearly, more information was

necessary for a stop.

When the stopping officers first saw the car in ques-

tion, it was legally stopped at a traffic signal (‘T-44).

Though the officers observed nothing unusual, they none-

theless detained the car on the sole basis of the citizens

band radio tip. Clearly, a conciusory tip of questionable

reliability, one that fails to even allege a specific, im-

pending crime, and one corroborated only by a completely

innocent activity, does not constitute the level of knowl-

edge necessary for a Terry stop. On the contrary, find-

ing that these facts warrant such a stop destroys the

balance set by this Court in Jerry and other decisions.

II. There are conflicts in the lower courts over what

constitutes ‘‘articulable facts,” justifying an inves-

tigatory stop.

In the ease at bar, the stopping officers observed

nothing even suggesting criminal activity. All they had

to rely on was a conclusory tip that a car was being

driven “eratically” (T-42). As mentioned earlier, any

driving short of perfect could be deseribed as “erratic”

thus, the call gave no “articulable facts” to justify such

a stop. The only corroboration the officers had was that

the car, in fact, existed. Thus, this case raises the ques-

tion of what type of information a police officer must

possess, either through personal observation or a tip, to

make an investigatory stop.? Must there, at some point,

be a link that gives the information an aura of crimi-

nality beyond mere suspicion?

2 The type of information justifying an investigatory stop is

important in the context of the rapid growth of citizens

band radios. According to ‘“‘Consumers Research Magazine”’,

Vol. 61, No. 5, May, 1978, p. 22, “At the end of 1977, the

Federal Communications Commission (F.C.C.) was process-

ing about 500,000 citizens band radio licenses per month.

As of January of 1978 there are 11,000,000 licenses in effect

processed.” Though these figures do not reflect the actual

number of radios in use, they do show that there is more

opportunity for citizens to contact police on the road. Spe-

cific, concrete facts must be required from these citizens in

order that the Fourth Amendment freedoms of others be

sufficiently protected.

10

Terry v. Ohio, supra, seems to indicate that the in-

formation possessed must have an air of criminality.

However, applications by lower Courts vary greatly in

how much is necessary for a stop.

In Mullins v. State, 353 So. 2d 605 (Fla., 1977), the

Florida District Court of Appeals held that a stop of a

bicyelist who was only observed riding slowly through

a residential neighborhood in the early morning was legal.

In New York v. Earl, 40 N.Y. 2d 941, 353 N.E. 2d

1037 (1976), cert. den. 431 U.S. 943 (1977), an off-duty

officer observed two individuals late at night crouched

behind a parked ear holding objects which later were

found to be revolvers. After observing the suspects for

a short time, the officer stopped, frisked and arrested

the suspects. The New York Court of Appeals held that

the officer did not possess the facts necessary to justily

his intrusion upon the suspects.

The above, plus the cases cited below, demonstrate

an intolerable variation in the type of facts deemed suf-

ficient or insufficient, by the Courts, to justify investi-

gatory stops by police officers. It is essential that this

Court clarify the need for some information that indi-

eates criminal activity to justify police intrusions on

Fourth Amendment freedoms. Here, there are clearly

no “specifie and articulable facts.” The decision of the

Court of Appeals of Iowa has left citizens of Iowa open

to injury based on bare accusations. The decisions of

other Courts have frustrated legitimate law enforcement

interests. There is a need for this Court to restate the

police-citizen balance.

11

See also:

Carter v. State, 237 S.B. 2d 656 (Ga. 1977).

Commonwealth v. Greber, 331 A. 2d 523 (Pa.

1975), aff'd. 23 Cr. L. 2173 (1978).

Commonwealth uv. Lanoue, 251 N. BE. 2d 894

(Mass. 1969).

People v. Lowry, 230 A.2d 907 (N.J. 1967).

Carpenter v. Sigler, 419 F. 2d 169 (8 Cir. 1969).

United States v. Jordan, 530 FF. 2d 722 (6 Cir.

1976).

Invited States v. Montgomery, 561 F. 2d 875

(C. A. D.C. 1977).

United States v. Robinson, 5386 F. 2d 1298 (9

Cir. 1976).

United States v. Zapata, 5385 F.2d 359 (7 Cir.

1976).

III. This case presents the issue of what type of corrob-

oration is necessary for the police to make a stop

based on Whitely v. Warden, 401 U. S. 560, 91 S. Ct.

1031, 28 L. Ed. 2d 306 (1970).

Petitioner contends that the conclusion of the Towa

Court of Appeals that the informant, Rogers, was more

like a police officer than not (Appendix B, P. 14), was

clearly erroneous.s As pointed put earlier, Rogers was

not working in any official capacity for the police at the

time of the stop. Further, the time he had spent as

a special deputy during weekends for three months, plus

his lack of any formal police training, go against the

3 The District Court made no such finding about Rogers. (Ap-

pendix A).

12 .

lower Court’s conclusion about his semi-official status.

It ntust be remembered that this Court in Terry v. Ohio,

supra, placed great weight on the thirty-odd years of

experience that the officer in that case had in deferring

to that officer’s judgment concerning his conclusions

about the activities he observed. Also, the call did not

have the presumed reliability of one coming through a

police dispatcher. In light of the facts here, that type

of deference is not justified.

However, even if the state prevails on this point, it

still appears that, for the officers to justify their stop,

the message needed more underlying facts as to the way

the Gates’ car was ,allegedly driven.

Again, there is a conflict in the Courts as to the

type of information required to justify such a stop.

See:

Holder v. State, 233 S.E. 2d 501 (Ga. 1977).

In Matter of Allen L., 399 N.Y. S. 2d 233 (S. Ct.

App. Div. 1977).

United States v. Craemer, 555 F. 2d 594 (6 Cir.

1977).

United States v. Ivey, 546 F. 2d 139 (5 Cir.

1977).

United States v. Wood, 545 F. 2d 1124 (8 Cir.

1976).

IV. The decision of the trial court that the consent given

to the search by petitioner reflected a knowing and

voluntary consent, conflicts with this court’s holdings

in Bumper v. North Carolina, 391 U. S. 543, 88 S. Ct.

1788, 20 L. Ed. 2d 797 (1968), and Schneckloth v.

Bustamonte, 412 U. S. 218, 93 S. Ct. 2041, 36 L. Ed.

2d 854 (1972).

13

Here, it is apparent that Petitioner gave his con-

sent for the search after an officer had told him that

the officer did not have a warrant but could get one

(‘T-48). Thus, the officer was asserting a “claim of law-

ful authority” to search and, respecting the officer’s

knowledge of the law, Petitioner consented. This was not

a voluntary and knowing consent, especially since the

officer’s claim about his ability te set a warrant was

questionable.

The situation here, is much like that in Bumper,

supra. There, consent was given to the search of a

house based on the officers’ false representation that

they had a warrant. Here, Petitioner was told, in effect,

that it did not matter whether the officers had a warrant

or not, they still had the legal authority to search. Thus,

as in Bumper supra, the State has only shown that Peti-

tioner acquiesced to a lawful claim of authority. (Bumper,

supra, at 549). It is clear that this is not a knowing

and voluntary consent.

Further, to find as the trial Court, that Petitioner’s

asking if the officers had a warrant showed a knowledge

of the law is unrealistic (Appendix A, p. 1). Knowing

that a warrant has something to do with a police search

is a far ery from even beginning to understand the sub-

tleties of probable cause.

Finally, the subsequent search of the trunk involves

questions of the apparent scope of the alleged consent.

However, since the alleged consent was the fruit of

an illegal stop and it defies all reason to say that the

consent was suff iciently attenuated from the illegal stop

to render it legal, any evidence seized as a result of the

14

alleged consent must be suppressed under Wony Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Hd. 2d

441 (1963), and Brown v. Illinois, 422 U.S. 590, 95 S. Ct.

2254, 45 L. Ed. 2d 416 (1975). Thus, if Petitioner pre-

vails on the investigatory stop, the Court need not de-

cide the merits of the “consent” issue.

V. The holding of the Iowa Court of Appeals that the

entire search was valid as one incident to a valid

arrest conflicts with this court’s rulings on the scope

of searches incident to arrest, Chimel v. California,

395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, rehear-

ing denied 396 U. S. 869, 90 S. Ct. 36, 24 L. Ed. 2d

124 (1969), and those made after any exigency situa-

tion has passed. United States v. Chadwick, 75-1721

(1977).

Although Chambers v. Maroney, 399 U.S. 42, 90

S. Ct. 1975, 26 L. E. 2d 419 (1970), rehearing denied 400

U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970), dealt with

the warrantless search of an entire car late at night,

that car did not, as here, have an area, i.e. a trunk, that

could not be easily reached by suspects, their cohorts or

vandals. Also, this is not a case where the police had

reason to believe that there were items of value or weap-

ons in the trunk. Cady v. Dombrowski, 413 U.S. 433,

93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). Further, in light

of the Chadwick decision, supra, it is clear that the

search of the trunk, executed while the two arrestees

were handcuffed and the other passengers out of the car

(T-54-57), crossed the line where the automobile exi-

gency had lapsed, and thus, a warrant was required. This

is especially true where, as here, the car had come “under

lo

the exclusive dominion of police authority.” (Chadwick,

supra, at p. 138).

As with the previous issue, if the Court determines

that the investigatory stop was improver, it need not

decide whether the search of the trunk was too broad

in scope under the exclusory provisions of Wong Sun v.

United States, supra, and Brown v. Illinois, supra. How-

ever, if the Court finds that the stop of Petitioner’s ve-

hicle was proper and that Petitioner’s consent to search

was voluntary, it is still necessary to decide whether the

scope of the search exceeded permissible parameters

since evidence relating to Petitioner’s intent to deliver

the controlled substance was found in the trunk.

fa’

Vv

‘ CONCLUSION

For all the foregoing reasons, the Petitioner respect-

fully requests this Court to grant this Petition for Writ

of Certiorari to the Supreme Court of Iowa.

Respectfully submitted,

Artuur L. Buzzeun

Newrort, Buzzevi, Lirspe & Fortrrnt

306 Citizens Federal Building

Davenport, Iowa 52801

Telephone: (319) 323-9963

Counsel for Petitioner

Dated: July 26, 1978

App. 1

APPENDIX A

RULING ON MOTION TO SUPPRESS

The defendant has filed a motion to suppress vari-

ous evidence that has been seized, alleging the illegality

of the warrantless search.

There is no dispute as to the facts concerning the

search and the events leading up to such. ‘The only

question is whether such investigatory stop of the motor

vehicle was constitutional and the search legal.

The officers conducting the search in this instance

did so after having received a call from one Tony Rogers

by way of a CB, informing the officers that the partic-

ular car was driving erratically at a certain time and

place. The individual Tony Rogers who reported the

irregularity of such driving has acted as a part-time

policeman in the area.

From the record as made The Court is of the opin-

ion that the stopping officer had specific cause to rea-

sonably believe a criminal activity was taking place, and

that such stoppage was not merely out of suspicion or

curiosity.

As to the search itself, during the investigation the

officer (Loebach) requested of the defendant if he could

search the vehicle. In response thereto the defendant

said, “Have you a search warrant?’; to which the officer

replied, “No,” but that same could be obtained. The de-

fendant then told the officer to go ahead and make the

search.

From all the circumstances, it is The Court’s opinion

that the verbal assent by the defendant reflected that

——

App. 2

he had an understanding which was an uneoerced and

an unequivacal election to grant the officers the right

to search the vehicle. It certainly cannot be said, from

all the record made in this case, that the defendant was

not aware of his rights, in that he himself inquired

whether or not there was a search warrant, and knew

that such was required unless he gave his assent.

Because of all the facts as made in this record, it

is the opinion of The Court that the motion to suppress

should be denied.

IT IS, THEREFORE, ORDERED that the defend-

ant’s motion to suppress is hereby denied.

BY THE COURT: /s/ Joseph Hand, Judge

Third Judicial District

MOTION TO SUPPRESS EVIDENCE

NOW COMES the Defendant, Larry Gates, by and

through his attorneys, James, Greer, Hoover, Nelson,

Bertell, Montgomery and Barry, and respectfully moves

the Court, pursuant to the Fourth, Fifth, Sixth and Four-

teenth Amendments of the United States Constitution,

and pursuant to Article I, See. 8, of the Constitution of

the State of Iowa to suppress as evidence in the Trial

of this Cause, any and all physical evidence seized from

the Defendant from any article or vehicle alleged to have

been possessed or owned by the Defendant, and any state-

ments allegedly to have been made by him and in sup-

port thereof, states as follows:

1. The Defendant-Petitioner is a citizen of- he

United States of America, and entitled to all the privi>~ at

leges and immunity thereto.

2. That Defendant-Petitioner was violating no law

of any ‘jurisdiction on or about September 8, 1976.

App. 3

3. That notwithstanding the above, the law enforce-

ment officers seized on the night of September 8, 1976,

from the Defendant-Petitioner’s car owned by the De-

fendant-Petitioner, the car being a 1973 Chevrolet auto-

mobile stopped at the intersection of Highway 71 and

the main street of Arnolds Park, Iowa, and the items

seized from the Arnolds Park police car in which Dean

Soper was taken to the Dickinson County Sheriff’s De-

partment included but not limited to the items listed

on Exhibits “A” and “B” attached hereto.

As grounds for this Motion, counsel for the Defend-

ant-Petitioner states:

1. Without obtaining a search warrant and without

placing the Defendant-Petitioner under arrest, the offi-

cers looked into Defendant-Petitioner’s automobile and

searched the same.

2. In searching the trunk of said automobile with-

out obtaining permission to do the same by taking the

keys out of the ignition of Defendant-Petitioner’s car

and opening the trunk and searching the same.

3. In attempting to introduce evidence found in a

police car in which the Defendant-Petitioner was only

placed for a short period of time and in which another

Defendant, Dean Soper, was observed taking things from

his pocket, said articles being found only in the area

where Defendant Soper had been placed in said auto-

mobile.

4. The search of Gates’ vehicle was made without

warranty or authority.

5. The search was not incident to an arrest and

was not made with the consent of the Defendant-Peti-

tioner.

G. The search was made without probable cause.

App. 4

7. After the officers had stopped the vehicle, they

had ample opportunity, had a lawful arrest been made,

to obtain a search warrant and proceed in an orderly

manner within a search for which there was probable

cause.

8. The material seized by the officers from the

vehicle were at no time located in such a way that the

“open view” doctrine could possibly apply.

9. In the event that the Court finds that the De-

fendant-Petitioner gave consent to search said vehicle,

said verbal consent was coerced in that Officer Kilts

testified that he informed the Defendant-Petitioner he

did not have a search warrant but that he could get

one.

10. At no time did said officers have probable

cause to support the claim that Defendant-Petitioner

was purportedly attempting to deliver controlled sub-

stances in violation of Section 204.401(1) without rely-

ing on the information they obtained without a search

warrant having been issued.

WHEREFORE, Defendant-Petitioner, Larry Gates,

prays the Court grant his Motion to Suppress Evidence.

JAMES, GREER, Hoover, NELSON

BrrtTeLt, Mon tcomMery & Barry

By /s/ Dick H. Montcomery

Dick H. Montgomery

Professional Building

Spencer, Iowa 51301

Attorneys for Defendant-Petitioner

Copy To:

James C, LapDEGAARD

Dickinson County Attorney

1715 Hill Avenue

Spirit Lake, lowa 51360

App. 5

APPENDIX B

IN THE COURT OF APPEALS OF IOWA

STATE OF LOWA,

Appellee,

VS.

LARRY GATES,

Appellant.

(Filed March 29, 1978)

382

60598

Appeal from Dickinson District Court—Tom Hamil-

ton and Joseph P. Hand, Judges.

Defendant appeals his conviction of possession of

marijuana, amphetamines and phencyclidine with intent

to deliver, in violation of § 204.401(1), The Code 1975, al-

leging error in trial court’s ruling on his motion to sup-

press evidence and his objection to the admission of docu-

mentary evidence. AFFIRMED.

Dick H. Montgomery, of Greer, Nelson, Bertell, Mon!

gomery & Barry, of Spencer, counsel for appellant.

Richard C. Turner, Attorney General of Iowa, Lona

Hansen, Assistant Attorney General, and James O. Lade-

gaard, Dickinson County Attorney, counsel for appellee.

Heard by Allbee, C. J., Donielson, Snell, Oxberger

and Carter, JJ.

App. 6

DONTELSON, J.

Defendant-Larry Gates appeals his conviction of pos-

session of marijuana, phencyclidine, and amphetamines

with intent to deliver, in violation of § 204.401(1), The

Code 1975. He contends that the trial court erred in

overruling his motion to suppress evidence and in admit-

ting into evidence at trial handwritten documents found

in his wallet.

During the late evening hours of September 7 or the

early morning hours of September 8, 1976, Anthony Rog-

ers was driving his automobile in the south part of Ar-

nolds Park, when he spotted defendant’s blue and white

Chevrolet Monte Carlo traveling northbound on Highway

71 toward Spirit Lake at approximately 15 to 20 miles

per hour. Rogers, a resident of the Arnolds Park area

for 20 years, had worked as a part-time special deputy

for the Dickinson County Sheriff’s Department during

the summer of 1976 until the third weekend in August.

Rogers first observed the vehicle traveling along the

highway in front of a local cocktail lounge, although he

did not know whether the car had stopped at the tavern.

According to Rogers, Gates proceeded along the highway

for a short distance and turned onto a diagonal road lead-

ing to an amusement park. Rogers followed the Gates

vehicle and observed it traveling for some distance on

the left side of the traveled portion of the roadway. Rog-

ers testified that he thought it was rather unusual for a

vehicle to travel on the left side of the road for such a

distance. Rogers also noticed that the car bore out-of-

state license plates which he believed were either Pennsyl-

vania or New York plates.

ee

App. 7

Rogers testified that he thought the vehicle was

driving “a little erratically” and that the driver might

have had too much to drink. Rogers had a citizens’

band radio in his ear and he knew that Officer Wendall

Kilts was on duty that evening and that he also had

a citizens’ band radio in his patrol ear. Rogers called

Kilts over the radio and informed him that he had

observed a ear which was, in his opinion, being driven

erratically over the road and that possibly the driver

was drunk. Rogers also gave the description and loca-

tion of the vehicle, the direction it was headed, and in-

’ dicated that he believed that there were three other

passengers. Both Kilts and Officer Tom Loebach, who

was present in the patrol car with Kilts that evening,

corroborated Roger’s version of the substance of the

radio communication.

Rogers followed the Gates vehicle for a distance

but then turned off. After Kilts and Loebach received

the communication, they drove south on the highway until

they saw Gates’ car stopped at a traffic signal in south-

west Arnolds Park at approximately 1:30 am. Kilts

pulled the patrol car next to the Gates vehicle and mo-

tioned for Gates to remain stopped at the signal. Al-

though there is some confusion in the testimony, it

appears that while the two vehicles were stopped, Rogers

passed by the intersection in his vehicle and radioed

Kilts that the stopped vehicle was the same one he had

described earlier.

Kilts and Loebach got out of their car and Kilts

approached Gates’ side and asked him to get out of the

vehicle and show his drivers license. Gates complied

App. 8

with these requests. Meanwhile, Loebach walked around

to the passenger side of the vehicle. Dean Soper, one

of three other people in the car, was sitting in the front

seat on the passenger side. During this time, Kilts

testified that he was observing Gates, his actions and

behavior in an effort to determine if he was in an in-

toxicated condition and unable to drive safely.

While Kilts was conversing with Gates, Loebach

called Kilts to the passenger side of the vehicle, where

Losbach informed Kilts that he saw Soper attempting

to stuff a pipe under his leg or in the seat. Loebach

also told him that he observed an open ean of beer sitting

on the floorboard on the front passenger side. Kilts

thereupon instructed Soper to get out of the ear, step

to the rear of it and produce some identification. At

that point, the pipe was on the front seat where Soper

had been sitting, and Loebach proceeded to pick up the

pipe and ean of beer.

Kilts then asked Gates if the car belonged to him

and, if so, if Gates would consent to a search of the

vehicle. Gates responded that the vehicle was his and

he asked if Kilts had a search warrant. Kilts replied

“No, but I can get one.” Kilts testified that Gates

answered “Go ahead and search,” at which point Kilts

instructed Loebach to lock through the front part of the

vehicle while the two other passengers remained in the

back seat. In the glove compartment, Loebach found

three pipes, a leather pouch containing money, aud_a

plastic bag and small jar containing “a green plantlike

material.” Inside the console, he found another plastic

bag containing the same material. Kilts then asked Gates

and Soper to empty their pockets out on the ear and he

nites les

App. 9

arrested them both. Their wallets and identification ecards

were returned to them. The other two passengers were

not arrested.

Loebach then took Gates’ ear keys and opened thie

trunk, wherein he found two coffee cans which were

later opened and found to contain eash, checks, written

notes, drug paraphenalia, and other items. The Gates’

vehicle was then towed to the Sheriff’s office. There,

police found handrolled cigarettes, packets of paper,

powder, and pills under the rear seat of the patrol

ear where Gates and Soper had been sitting. When

Gates was being processed at the Sheriff’s Office, some

handwritten documents were found in his billfold and

seized by authorities. Subsequent tests revealed that

the green plantlike material was marijuana.

Gates argues that his motion to suppress the vari-

ous items found in his automobile should have been

granted on the ground that the initial investigatory stop

of his vehicle was constitutionally impermissible. Be-

cause Gates contends that the search and seizure vio-

lated his constitutional rights, our review is de novo, i. e.,

we independently evaluate the circumstances in totality.

State v. Iowa District Court in and for Johnson County,

247 N.W. 2d 241, 245 (Iowa 1976); Bettuo v. Pelton,

260 N. W. 2d 423, 425 (Iowa 1977). Because the search

and seizure were made without a warrant, the burden

is upon the State to demonstrate that the police action

was lawful and fell within one of the exceptions to the

warrant requirement of the Fourth Amendment to the

United States Constitution. State v. King, 191 N.W.

2d 650,°654 (lowa 1971). This burden must be met

App. 10

by a preponderance of the evidence since defendant has

invoked the protection of the federal constitution, United

States v. O’Looney, 544 F. 2d 385, 388 (9 Cir.), cert.

denied, 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed. 2d 625

(1976), citing United States v. Matlock, 415 U. S. 164,

177-178 and n. 14, 94S. Ct. 988, 39 L. Ed. 2d 242 (1974),

although we recognize that Iowa apparently demands a

showing by clear and convincing evidence. State vy.

Smith, 178 N.W. 2d 329, 333 (Iowa 1970).

The State contends that the police officers were in

the process of conducting a lawful and reasonable in-

vestigatory stop of the Gates automobile. In State v.

Cooley, 229 N.W. 2d 755, 760 (Iowa 1975), the court

adopted the principles articulated in Terry vy. Ohio, 392

U.S. 1, 30, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968), that

a police officer may, in appropriate circumstances and

in an appropriate manner, approach a person for pur-

poses of investigating possible criminal behavior, even

though there is not sufficient probable cause to make an

arrest. Circumstances for an investigatory stop exist

“where a police officer observes unusual conduct which

leads him reasonably to conclude in light of his experience

that criminal activity may be afoot.” Id.; State v. Don-

nell, 239 N. W. 2d 575, 577 (lowa 1976). See Adams v.

Williams, 407 U.S. 148, 145, 92 S. Ct. 1921, 32 L. Ed. 2d

612 (1972). In order for the State to establish that the

officers had reasonable grounds to conduct an investi-

gatory stop of a motor vehicle when the grounds are

questioned, the State must show that the officers pos-

sessed objective facts which indicate “the stopping offi-

cer has specific and articulable cause to reasonably be-

lieve criminal activity is afoot. Circumstances evoking

App. 11

mere suspicion or curiosity will not suffice.” State v.

Dixon, 241 N. W. 2d 21, 23 (Iowa 1976); State v. Reese,

259 N.W. 2d 793, 795 (Iowa 1977). In other words,

we must ascertain whether the facts available to the

officers at the moment of the investigatory stop, to-

gether with rational inferences derived from those facts,

would warrant a man of reasonable caution in the belief

that the action taken was appropriate. Terry v. Ohio,

supra, 392 U.S. at 21-22; State v. Cooley, supra, at 760.

Although we are aware of no case directly on point,

certain cases exist which bear directly upon the issues

presented herein. In State v. Dixon, supra, at 23, the

court upheld the validity of an investigatory stop of a

vehicle which was based solely upon information eb-

tained by the stopping officer in a radio dispatch. In

that case, the court held that the stopping of defend-

ant’s vehicle was good police work and reasonable under

the circumstances. In Whiteley v. Warden of Wyoming

Penitentiary, 401 U. S. 560, 568-569, 91 S. Ct. 1031, 28 L.

Ed. 2d 306 (1971), the court held that although police are

entitled to act on the strength of a radio dispateh or

bulletin, there was insufficient evidence of reliability

provided by the details in the police bulletin in that

case to support an arrest based upon probable cause.

See Chambers v. Maroney, 399 U.S. 42, 44-46, 90 5. Ct.

1975, 26 L. Ed. 2d 419 (1970); State v. Salazar, 213 N. W.

2d 490, 491-492 (Iowa 1973). In United States v. Her-

nandez, 486 F. 2d 614, 615-618 (7 Cir. 1973), cert. denied,

415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed. 2d 574 (1974),

the court carried the holding in Whiteley one logical

step further and concluded that Whiteley “clearly con-

templated that the arresting officer would have an op-

App. 12

portunity to stop the suspect and attempt to corroborate

the radio bulletin before making an arrest.” Id. at 617.

In Carpenter v. Sigler, 419 F. 2d 169, 171 (8 Cir.

1969), the court indicated that under Terry, our inquiry

into the question of “reasonableness” should focus upon:

“

. . « (1) whether the faets warranted the intru-

sion on the individual’s Fourth Amendment rights,

and (2) whether the scope of the intrusion was

reasonably related ‘to the circumstances which justi-

fied the interference in the first place.’” (footnote

omitted).

State v. Cooley, supra, at 760; see United States v. Har-

flinger, 486 F. 2d 928, 932 (8 Cir. 1970), cert. denied, 402

U. S. 973, 91 S. Ct. 1660, 29 L. Ed. 2d 137 (1971). In

Carpenter v. Sigler, supra, a case in which the court

upheld an investigatory stop, the facts are closely analo-

gous to those in the instant case. There, the stop took

place during an early morning hour in a small town where

unidentified cars do not routinely travel at that time. The

car bore out-of-county license plates, and the officers mak-

ing the stop personally observed the vehicle traveling in

an erratic manner. Id. at 171.

Since it is clear that police are entitled to rely upon

radio dispatches and communications, we must next con-

sider whether the police acted reasonably in stopping the

Gates vehicle in light of the information they possessed.

That determination may depend upon whether we are en-

titled to consider the objective facts known by Rogers at

the time he radioed Kilts as well as the facts known by

Kilts himself, or whether our inquiry is limited to an

evaluation of the information possessed by Kilts at the

time he made the stop.

App. 18

Police officers are entitled to view information sup-

plied via police radio communications as reasonably trust-

worthy bases for actions. United States v. Stevens, 509

F. 2d 683, 687 (8 Cir.), cert. denied, 421 U.S. 989, 95.8.

Ct. 1993, 44 L. Ed. 2d 479 (1975); Klingler v. United

States, 409 F. 2d 299, 303 (8 Cir.), cert. denied, 396 U.S.

859, 90 S. Ct. 127, 24 L. Ed. 2d 110 (1969). Where a

radio communication is sent from one police officer to

another, we may consider the collective information pos-

sessed by both officers as underlying factual bases for the

stop. Brewer v. Wolff, 529 F. 2d 787, 790 (8 Cir. 1976) ;

United States v. Regan, 525 F. 2d 1151, 1154 (8 Cir. 1975) ;

United States v. Heisman, 503 F. 2d 1284, 1290 n. 5 (8

Cir. 1974). Where probable cause or reasonable grounds

for an investigatory stop are at issue, the information

supplied by one police officer to a second arresting or de-

taining officer must be buttressed by some of the under-

lying facts and circumstances as to how the first officer

came by such information. See United States v. Wixom,

460 F. 2d 206, 208 (8 Cir. 1972). In other words, the State

must demonstrate that the information so provided ‘‘itself

had a reasonable foundation.’’ United States v. Vasquez,

534 F. 2d 1142, 1145 (5 Cir.), cert. denied, Chavez-Corti-

nos v. United States, 429 U. S. 962, 97 S. Ct. 389, 50 L. Idd.

2d 330 (1976) and Vasquez v. United States, 429 U.S.

979, 97 S. Ct. 489, 50 L. Ed. 2d 587 (1976); see United

States v. Impson, 482 F. 2d 197, 199 (5 Cir.), cert. dented,

414 U. S. 1009, 94 S. Ct. 371, 388 L. Ed. 2d 246 (1973),

appeal after remand, 506 F. 2d 1055 (5 Cir.), vacated, 422

U. S. 1031, 95 S. Ct. 2647, 45 L. Ed. 2d 688 (1975), on

remand, 531 F. 2d 274 (5 Cir.), reh. denied, 5385 F. 2d

286 (5 Cir. 1976). Although the instant case does not

App. 14

specifically involve such a situation, we conclude that Rog-

ers served in a quasi-official capacity in light of his police

background and the fact that he was well known in the

area by local law enforcement officers. Clearly, Rogers

was much more like a police officer than a casual inform-

er, either identified or anonymous.

Assuming that Rogers is a police officer for purposes

of evaluating the stop, the following information may be

considered in determining its reasonableness:

(1) The Gates vehicle was first seen by Rogers

on a highway directly in front of a cocktail lounge.

(2) The vehicle was a blue and white Chevrolet

Monte Carlo with out-of-state license plates, which

appeared to be either Pennsylvania or New York

plates.

(3) The car was seen in a small Iowa city dur-

ing the late evening or early morning hours, with

the stop being made at approximately 1:30 a.m.

(4) The vehicle was seen on a diagonal road

near an amusement park traveling on the left side

of the traveled portion of the roadway for some dis-

tance.

(5) Rogers, who had been a part-time deputy

and was known to law enforcement. officers in the

area, radioed Kilts and informed himNto be on the

lookout for a blue and white Chevrolet Monte Carlo

which was, in his opinion, driving erratically over

the road and that possibly the driver was drunk.

Rogers gave the location of the car, the direction it

was headed, and indicated that he believed there were

three other passengers in the vehicle. The substance

of this radio communication was substantiated by

both Kilts and Loebach.

(6) Loebach stated that the vehicle he and Kilts

stopped was a white and blue Chevrolet Monte Carlo

App. 15

with Pennsylvania license plates and that three pass-

engers were riding therein.

(7) Rogers passed by the intersection where the

two vehicles were stopped and radioed Kilts that that

was the vehicle he had described to officers earlier.

Under this set of facts, we conclude that officers were

justified in believing that criminal activity was afoot and

that the investigatory stop was reasonable under the cir-

cumstances. See §§ 321.209(2) and 321.281, The Code. We

further conclude that, based upon the information he had,

Rogers acted reasonably in believing criminal activity was

afoot and in conveying those beliefs to Kilts by radio.

However, even if we do not classify Rogers as a police

officer, the investigatory stop passes constitutional mus-

ter. If Rogers is merely a citizen informer, the reason-

ableness of the stop must be evaluated with reference to

the information contained in items 5 through 7 of the list

previously enumerated. See Orricer v. Erickson, 471 F.

2d 1204, 1205-1208 (8 Cir. 1973). We hold that under the

circumstances existing in the instant case, the investiga-

tory stop satisfied the reasonableness criteria established |

in Terry and Carpenter. Kilts testified that after recetv-

ing the radio report, he stopped defendant’s vehicle to

observe Gates, his actions and behavior, and to see if he

was in an intoxicated condition or if something was wrong

with him, and to detarmine if he was ‘‘in a passing condi-

tion to drive his vehicle or not.’’ Under the facts and

circumstances of this case, we are convinced that the in-

vestigatory stop comported with the standards of ‘‘reason-

ableness’’ set forth in Terry, Carpenter and Cooley.

Since we conclude that the investigatory stop was

reasonable, Loebach’s observation of the open can of

App. 16

beer and pipe was constitutionally valid under the ‘plain

view” doctrine, because it was made by an officer from

a position where he was entitled to be. State v. Donnell,

supra, at 577; State v. Cooley, supra, at 760; State v.

Dixon, supra, at 24. A vehicle investigatory stop comply-

ing with the Terry standards may include the observation

of anything to be seen from outside the vehicle. State v.

Donnell, supra.

Upon seeing the open can of beer, officers had prob-

able cause to arrest defendant for violation of § 123.46,

The Code 1975. See State v. Billings, 242 N. W. 2d 726,

729 (Iowa 1976). Consequently, the warrantless search

of the Gates vehicle can be justified both as one made

incident to a lawful arrest, State v. Farrell, 242 N. W.

2d 327, 330 (lowa 1976), and as one made in the presence

of exigent circumstances and probable cause to search for

contraband. See State v. Simmons, 195 N. W. 2d 723,

724-725 (Iowa 1972); State v. Baych, 169 N. W. 2d 578,

081-582 (lowa 1969); State v. Dixon, supra, at 24; see

State v. Jackson, 210 N. W. 2d 537, 539 (Iowa 1973) and

State v. King, supra, at 654-655. Since the State has

demonstrated that probable cause to arrest existed prior

to the search of Gates’ vehicle, the admissibility of the

evidence obtained as a result of that search is not affected

by the fact that a formal arrest was not made until a few

minutes later. State v. Harvey, 242 N. W. 2d 330, 339

(lowa 1976).

Finally, we do not believe that the search was un-

reasonable merely because it was started at the scene

1 Since we are able to uphold the search and seizure as one

made incident to a va id arrest, we need not consider the

consent issue raised by Gates.

App. 17

of the arrest and completed at the Sheriff’s office. See

State v. Shane, 255 N. W. 2d 324, 328 (Iowa 1977). It

was dark on the street where the stop was made. The

initial search was made there; the car was locked and

towed to the Sheriff’s office and searched as soon as

Gates was processed. These measures satisfy Fourth

Amendment requirements. See Chambers v. Maroney,

supra.

We need not reach Gates’ other argument regard-

ing the admissibility of the hand-written documents.

When Exhibit No. 41 was offered into evidence, the

only objection made by defendant which is relevant here

is that there was “no foundation laid as to whose it is.”

At the close of the State’s evidence, defendant made a

motion to strike testimony regarding Exhibit No. 41 be-

cause the exhibit is in violation of § 622.28, The Code.

On appeal, Gates urges that these handwriatten docu-

ments should not have been admitted into evidence be-

cause no proper foundation was laid under § 622.28. In

State v. Bruno, 204 N. W. 2d 879, 887 (Iowa 1973), the

court held that a motion to strike or withdraw evidence

is not timely where it should have been apparent at the

time the evidence was offered that it would be inad-

missible if challenged by a proper objection in the first

instance and such objection is not timely made. This is

also true where the specific ground asserted in the mo-

tion to strike was not urged as a preliminary objection;

see State v. Raue, 214 N.W. 2d 162, 163-164 (Lowa

1974); State v. Houston, 206 N.W. 2d 687, 691 (Lowa

1973); State v. Bell, 223 N. W. 2d 181, 184 (lowa 1974) ;

State v. Welsh, 245 N. W. 2d 290, 294-296 (Iowa 1976).

App. 18

However, assuming arguendo that defendant did

preserve error on this issue, we would still hold that

this evidence is admissible. Section 622.28, The Code,

refers to writings offered as memoranda or records of

acts, conditions or events to prove the facts stated there-

im. The handwritten documents found in defendant’s

wallet are admissible because they were introduced not

to prove the facts stated therein, but as circumstantial

evidence of his guilt of the offense with which he was

charged. As such, the weight to be accorded such evi-

dence and the inferences to be drawn from it are matters

to be resolved by the jury. State v. Phillips, 226 N. W.

2d 16, 19 (Iowa 1975); State vy. Lowenberg, 216 Iowa

222, 229, 243 N. W. 538 (1932); see United States v.

Page, 544 F. 2d 982, 987 (8 Cir. 1976) and United States

v. Natale, 526 F. 2d 1160, 1172-1173 (2 Cir. 1975), cert.

denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed. 2d 193

(1976). Criminal intent is seldom subject to direct proof;

it must ordinarily be discerned from the circumstances

attending the alleged crime. State v. Graham, 221 N. W.,

2d 258, 260 (Iowa 1974). We think that thesé docu-

ments constitute circumstantial evidence which, if given

weight by the jury, help establish defendant’s criminal

intent and are therefore admissible on that basis.

AFFIRMED.

App. 19

APPENDIX C

IN THE SUPREME COURT OF IOWA

Filed: May 12, 1978

No. 60598

STATE OF IOWA,

Plaintiff-Appe'lee-Resister,

Vs.

LARRY GATES,

Defendant-Appellant-A pplicant.

ORDER

After consideration by the court en bane defendant-

appellant’s application for further review is hereby over-

ruled and denied.

Done this 12th day of May, 1978.

THE SUPREME COURT OF IOWA

By /s/ C. Edwin Moore, Chief Justice

Copies to:

Dick H. Montgomery

Greer, Nelson, Bertell, Montgomery & Barry

Professional Building

Spencer, Iowa 51301

Arthur L. Buzzell and Randy J. Hohenadel

306 Citizens Federal Building

Davenport, lowa 52801

Lona Hansen

Assistant Attorney General

LOCAL