# Petition — Gates v. Iowa

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 894

## Text

: 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 ~ 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

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