Petition — Olsen v. Iowa

Meny>

80-447 sep 17 (380

NO. | MHONAEL RODAK, JR, CLERK

SUPREME COURT OF THE UNITES STATES

OCTOBER TERM, 1980

CARL ERIC OLSEN,

Petitioner,

vs.

STATE OF IOWA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF IOWA

RAYMOND ROSENBERG

ROSENBERG & MARGULIES

1010 Insurance

Exchange Building

Des Moines, Iowa 50309

515-243-7600

Attorney for Petitioner

John P. Roehrick

535 Insurance Exchange Bldg.

Des Moines, Iowa 50309

=je

QUESTION PRESENTED FOR REVIEW

Whether the station house search of

Petitioner's automobile which uncovered

marijuana was unlawful because it was con-

ducted pursuant to a warrant which failed

to describe with particularity the place

to be searched and the items to be seized.

Whether, given the invalidity of

the warrant, the search of Petitioner's

automobile, which was stopped upon a

public highway and thereafter removed to

a police station, was nevertheless reason-

able under the so-called automobile excep-

tion to the Fourth Amendment's warrant

requirement despite the absence of exigent

circumstances.

PARTIES

1. Petitioner, Carl Eric Olsen,

through his Attorney, Raymond Rosenberg,

of Rosenberg & Margulies, 1010 Insurance

Exchange Building, Des Moines, Iowa,

50309, Telephone (515) 243-7600.

~ Qe

2. Respondent, State of Iowa, through

Thomas J. Miller, Attorney General of the

State of Iowa, Hoover State Office Building,

Des Moines, Iowa 50319, Telephone (515)

281-5164 and Stephen J. Petersen, Muscatine

Towa County Attorney, 415 Iowa Avenue,

Muscatine, Iowa 52761, Telephone (515)

263-6262.

TABLE OF CONTENTS

Questions Presented for Review ---- 1

PartieS ----<-9-99- 9s eee eee eee --- 1

Opinion Below -----<---------------- 5

Jurisdictional Statement ---------- 5

Constiutional Provisions and

Statutes ---<9<-<<-<eee<ee"%""---- 5

Statement of the Case ----------- -— 7

Statement of Facts ---------------- 8

Argument ---<-<-<--<--<<--9--2<------ L3

Search Warrant <--<--<<-<-<----- 14

Automobile Exception --------- 21

Appendix:

Search Warrant ----<-<---------- App. l

-3-

Motion to Suppress <~-“<<"°°°-* App. p. 3

Amendment to Motion to

Suppress <cc<~s<<eeee eer App. p.ll

Ruling on Motion to Suppress ~- App. p.14

Supreme Court Decision ~--~----~ App. p.22

TABLE OF CASES

Arkansas v. Sanders,

442 U.S. 753, 99 S.Ct. 2586, ;

61 L.Ba.2d 235 (1979) «--2---- aasa2

Bloom v. State of Florida,

283 So.2d 134 (Fla. 1973) ---- 17,18

Carroll v. United States,

267 U.8i.332;: 45.9.4.

260,89. ly B4. 543 43825) -<“<-- 21

Chambers v. Maroney,

399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419

(1970) ----------------------- 33,94, 33

Ledbetter v. United States,

93\0.S. App.D.Cc. 158, 211

F.2d 628 Cert. denied,

243.0.8: S77 74‘ B.Ek. . FSRe

98 LEG. 1116 (1954) e-e---- -- 17

Marron v. U.S.,

275 U.f8. 192, 48 3.Ct.

74,92 & Ee 224: 42927) oSere 16

Moore v. United States, ‘

461 F.2d 1236

(D.C. Cie. LDTZ} orceeonnecosms 19

as

Payton v. New York,

eB , 100 S.Ct.

i t Para VS asia oem

(1980) -o--n enn 22

United States v. Chadwick,

O75: McSe 26s FE SaCc.

2476, 53 L.Ed.2d 538

(1977). enone oes ee ensesoessee= 22,43

United States v. Kaye,

139 U.S. App. D.C. 214,

e327 F.24 647 (13970) «*°ee-e-- 17

Search and Seizure,

A Treatise on the Fourth

Amendment, Wayne R. LaFave

(1978). ssteoooeeoeneeereseee"" 15

-5<

OPINION BELOW

The opinion of the Iowa Supreme Court

in this action was filed on June 18, 1980,

and the official citation is State v. Olsen,

293 N.W.2d 216 (Iowa 1980).

JURISDICTIONAL STATEMENT

The judgment of the Iowa Supreme Court

in this action was filed on June 18, 1980,

ana is a final judgment rendered by the

highest Court in the State of Iowa. The

jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES

Forth Amendment, United States Consti-

tution:

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable 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.

-6-

Fourteenth Amendment, United States

Constitution:

. . ([NJor shall any state

deprive any person of life,

liberty, or property, without

due process of law... >

Supplement to the Iowa Code (1977),

§ 204.401(1): oy

oy $20 | de walaetul tor

any person to ...- - possess

with intent to .. . . deliver,

a controlled substance ...- -

Any person who violates this

subsection with respect to:

. . . . (b) Any other controlled

substance classified in*Schedules

I... . is guilty of a class

"D" felony.

Towa Code (1977), § 204.204:

(1) The controlled substances

listed in this Section are in-

cluded in Schedule I.

(4) (3) Marijuana

Supplement to the Iowa Code (1977,

§ 902.9:

The maximum sentence for any

person convicted of a felony

shall be that prescribed by

statute or, if not prescribed

by statute ...- - shall be

determined as follows:

-J=

(4) A Class "D" felony. - -

‘shall be confined for no more

than five years, and in addition

may be sentenced to a fine of not

more than One Thousand Dollars.

Supplement to Iowa Code (1977),

§ 907.3:

Pursuant to § 901.5 (statute

confering judicial power to

impose traditional criminal

sanctions), the court may,

upon, - .--- 4a verdict of

guilty, .-.-- exercise any

of the options contained in

subsections 1 and 2 of this

section (statute authorized

deferred judgments and proba-

tion). However, this section

shall not apply to... -

a violation of § 204.401, Sub-

section 1 .-« 2 «

STATEMENT OF THE CASE

On the 19th day of June, 1978, a

Trial Information was filed in Muscatine

County, lowa, charging that the Petitioner,

Carl Eric Olsen, on the 21st day of May,

1978, possessed in Muscatine County, Iowa,

a controlled substance (marijuana) with

intent to deliver in violation of § 204.

401(1) of the 1977 Code of Iowa.

-8-

The guestions presented for review

herein were first raised by a pretrial

motion to suppress, filed in the Muscatine

Iowa District Court on February 5, 1979.

(App. p. 4) and an amendment thereto, filed

on March 9, 1979 (App. p. 11). After an

evidentiary hearing the District Court

overruled the motion in its entirety.

(App. p. 14)

After Petitioner was adjudged guilty

of the crime of possession of marijuana

with intent to deliver, a timely notice

of appeal to the Iowa Supreme Court was

filed and that Court affirmed the District

Court's ruling on the merits. (App. p.

STATEMENT OF FACTS

While driving his 1977 Dodge auto-

mobile near West Liberty, Iowa, at approxi-

mately 10:45 p.m. on May 20, 1978, Petitioner

passed two other vehicles in a no-passing

zone. The incident was observed by

Deputy Sheriff Lowell Snyder, who pursued

Petitioner and stopped his automobile in

West Liberty. Two West Liberty police

=-9=-

officers came to the scene of the stop

shortly afterward. Snyder was somewhat

suspicious of Petitioner because he was

driving a car with out-of-county plates,

seemed to be unfamiliar with the road,

and appeared to be ina hurry. Asa

result, he ordered a vehicle check which

confirmed Petitioner's ownership of the

automobile. While issuing him a cita-

tion for the traffic violation, Snyder

smelled marijuana on Petitioner's clothing.

He and the other officers also smelled a

strong marijuana odor coming from the

interior of the vehicle. One officer

observed and removed a marijuana cigarette,

which he called "a large roach,” from the

front ashtray. A small cardboard box,

containing marijuana seed, was removed

from the front seat. The officers, who

were experienced in drug investigations,

believed the odor of marijuana was

stronger than could be accounted for by

-10-

the cigarette. They noticed the rear of

the vehicle appeared to be weighted down.

Petitioner was placed under arrest

for possession of marijuana. A search

of his clothing turned up a small "rock-

hard" quantity of hashish in a shirt

pocket and twelve to fourteen dollars in

quarters in his trouser pockets. He

admitted to a prior arrest for possession

of marijuana. The officers searched the

interior of the vehicle without finding

any additional drugs. They then asked

Petitioner for permission to search the

trunk. He became quite nervous and refused,

telling the officers he had people waiting

for him and he was in a hurry. He asked

them to leave his vehicle alone.

The officers suspected Petitioner

might be carrying additional marijuana in

the trunk of the car. For that reason

they decided to take the vehicle to the

West Liberty police station to be held

while they sought a search warrant.

¢

-ll-

The vehicle was towed to the station and

guarded until a warrant was obtained. .

Deputy Snyder obtained and executed

the search warrant. He found 129 pounds

of marijuana in the trunk of the vehicle,

most of which was contained in bales wrapped

in brown paper. Another officer discovered

a white paper bag behind the spare tire

which contained $10,915 in currency.

Additional marijuana was found in a brief-

case, and other items were also seized.

The warrant does not describe the

personal property except as a vehicle

"owned, controlled or in the possession

of Carl Eric Olsen". No further descrip-

tion of the vehicle is given and all blanks

in the form warrant for the insertion of

description are unused and remain blank.

(App. p- 1)

There is no identification or

description of the property sought to be

seized except in the language of the form

-12-

warrant as follows:

(property which has been used

as a means of committing or

accomplishing the commission

of a felony).

All blank lines and spaced provided

in the form for the insertion of particu-

lars or description remain blank and are

unused.

The search warrant is entirely devoid

of any descriptive particulars that were

meant to be inserted in the blank lines to

describe the place to be searched and the

property to be seized.

At the time the search warrant was

issued, an "Application for Search Warrant"

signed by Snyder, was presented to the

Magistrate. The Application for the

Search Warrant does contain a description

ofthe vehicle as follows:

A 1977 Dodge 2 door listed on

the vehicle registration as

Red in color, bearing Iowa

license plates number 3 AKJ671

with a validation sticker bearing

the number (78) 3 010620. The

-13-

vehicle identification number

is DH23T7D117223.

However, the affidavit was not in the

possession of the deputies at the time of

the search, nor was it physically connected

to the warrant. Also, the search warrant

did not refer to the affidavit or adopt

its contents by reference.

ARGUMENT

The two issues presented for review

on this Petition for a Writ of Certiorari

are: 1) Whether the search which

uncovered the marijuana was unlawful because

it was conducted pursuant to a warrant

which failed to describe with particularity

the place to be searched and the items to

be seized, and 2) Whether, given the

invalidity of the warrant, the search was

nevertheless reasonable under the so-called

automobile exception to the warrant require-

ment of the Fourth Amendment to the United

States Constitution.

-14-

THE SEARCH WARRANT

The body of the search warrant contains

no description of the vehicle to be searched

or the property to be searched for. The

blank lines contained in the printed form,

which were intended to be filled in with

the description of the vehicle or premises

to be searched and the property sought to

be seized, remain blank. (App. p. 1-2)

The Search Warrant is insufficient

on its face because it does not describe

with particularity the place to be

searched or the property to be seized.

(App. p. 1-2)

The plain language of the Fourth

Amendment to the Constitution of the

United States requires that ". . . . no

warrants shall issue, but upon probable

cause, supported by oath or affirmation,

and particulary describing the place to

to be searched and a person or things to

be seized." (Emphasis furnished.)

-15-

The reasons for this constitutional

requirement generally is related to the

intent of the Constitutional makers to

prohibit general searches.

Professor Wayne R. *aFave, in his

book entitled Search and Seizure, A Treatise

on the Fourth Amendment (1978), states the

reason for the rule requiring a particular

description of the place to be searched

somewhat differently in Volume 2 at page 72:

One of the specific commands

of the Fourth Amendment is that

no warrants shall issue except

those "particularly describing

the place to be searched."

Quite obviously, the primary

purpose of this limitation is

to minimize the risk that

officers executing search

warrants will by mistake search

a place other than the place

intended by the magistrate.

In addition, however, the

requirement of particularity

is related to the probable

cause requirement, in that -

at least under some circumstances -

the lack of a more specific des-

cription will make it apparent

that there has not been a suf-

ficient showing to the magis-

trate that the described items

are to be found in a particular

place.

-l16-

Unless the warrant particularly des-

cribed the property to be seized, it

violates the Constitutional prohibition

against general searches. Marron v. U.S.,

275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231

(1927). ‘go

The search warrant I ed in the case

at bar contains no description of the

thing sought to be seized. The only

language in the search warrant relating

to the property, does not identify the

property but states only general grounds

why any property is seizable.

(Property which has been

used as a means of committing

Or accomplishing the commis-

sion of a felony.)

The application for the search

warrant does contain an adequate descrip-

tion of the vehicle and facts sufficient

to establish probable cause, however,

there is a fundamental distinction be-

tween the warrant and the underlying

-17=

affidavit, and the affidavit is not neces-

sarily either part of the warrant or

available for defining the scope of the

warrant. Moore v. U.S., 461 F.2d 1236,

1238 (D.C. Cir. 1972); United States v.

Kaye, 139 U.S. App. D.C. 214, 432 F.2d

647 (1970); Ledbetter v. United States,

93 U.S. App. D.C. 155, 211 F.2d 626,. cert.

denied, 347 U.S. 977, 74 S.Ct. 789, 98

L.Ed. 1116 (1954).

In Bloom v. State of Florida, 283

So.2d 134, 136 (Fla. 1973) the court citing

Moore v. U.S., 461 F.2d 1236, with approval,

stated:

There is a fundamental dis-

tinction between a search warrant

and the underlying or supporting

affidavit, and the affidavit is

not necessarily either part of

the warrant nor available for

defining the scope of the

warrant. Moore v. United States,

149 U.S. App. D.C. 150, 461 F.2d

1236 (1972). Therefore, even if

the affidavit which supported

the warrant was sufficiently

detailed, it would not cure

the defect in the search warrant

consisting of a failure to

describe items to be seized with

-18-

particularity, since specificity

is required in the search warrant

so that the discretion of the

officer executing the search

warrant is limited. State v.

Muldowney, 60 N.J. 594, 292 A.

2d 26 (1972); see also Marron

v. United States, supra.

Bloom v. State of Florida, 283 So.2d

134 appears to be identically on point

with the case at bar. In Bloom the Search

Warrant did not particularly describe the

property to be seized, but the affidavits

on which the issuance of the search war-

rants was based did describe the property

to be seized.

The Court in Bloom held that a

Search Warrant which does not particularly

describe the property to be seized was

invalid on its face for failure to limit

the discretion of the officer executing

the warrant. Bloom v. State of Florida,

283 So. 2d 134, 135-136.

The Court in Bloom v. State of Florida

then faced the same issue as that presented

-19-

in the case at bar, to-wit:

we note from the record on

appeal the affidavits on which the

i;ssuance of the search warrants was

based described the property to be

seized. Thus the question hecomes

whether search warrants, jnvalid on

their face, may be validated by the

presence of properly drawn supporting

affidavits.

(2,3) ‘There 1s a fundamental

distinction between a search warrant

and the underlying or supporting

affidavit, and the affidavit is not

necessarily either part of the warrant

nor available for defining the scope

of the warrant. Moore v. United

States, 149 U.S.App.D.C. 150, 461

’.2a 1236 (1972). Therefore, even

if the affidavit which supported

the warrant was sufficiently detailed,

it would not cure the defect in the

search warrant consisting of a fail-

ure to describe items to be seized

with particularity, since speci-

ficity is required in the search

warrant so that the discretion of

the officer exceuting the search

warrant is limited. State v. Mul-

downey, 60 N.J. 594, 292 A.2d 26

(1972); see also Marron v. United

States, Supra.

[4] Some decisions, however,

have permitted an affidavit to cure

a defective search warrant where the

affidavit and the search warrant are

such that they can be reasonably said

to constitute one document. ‘Two re-

quirements must be satisfied to

-20- —

reach this result: first, the affi-

davit and the search warrant must be

physically connected so that they

constitute one document; and second,

the search warrant must expressly

refer to the affidavit and incor-

porate it by reference using

suitable words of reference. Moore

v. United States, supra, aff'g

United States v. Moore, 263 A.2d

652 (D.C.App.1970); United States

v. Ortiz, 311 F.Supp.880 (D.C.Colo.

2970), e£€£°a. 448 F.2d £i0C, evrt.

denied 404 U.S. 993, 92 §.Ct. 541,

30 L.Ed.2d 545.

In the case sub judice the

above requirements have not been

Satisfied; the affidavits therefore

do not cure the fatal defect in the

search warrant consisting of a fail-

ure to particularly describe the

property to be seized. Therefore,

it was error for the trial court not

to have suppressed the evidence

seized as a result of the search

warrant. Florida Const., art. l,

& id, F.S.As

The search warrant issued by the

Magistrate in the case at bar did not

accompany the Warrant nor was it attached

to the Warrant and there is no "suitable

words of reference" which incorporate

the affidavit by reference. Therefore,

the warrant was fatally defective.

-21-

AUTOMOBILE EXCEPTION

* If the warrant in the case at bar is

invalid, the search may nevertheless be

found reasonable under an exception

to the Fourth Amendment's warrant require-

ment. The only exception possibly applic-

able here is the automobile exception of

Carroll v. United States, 247 U:8. isd,

45 §.Ct. 280, 69 L.Ed. 543 (1925) and

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

1975, 26 L.Ed. 2d 419 (1970).

The application of the automobile

exception to justify the search under the

facts of this case dramatically demon-

strates the deviations from fundamental

Fourth Amendment consideration by the

Chambers decision. In this case, the

obtaining of an invalid warrant belies

and negatives any rational claim of exigent

circumstances. It is clear that the

application of Chambers to this case

simply ignores the Fourth Amendments

express preference for a search warrant.

~22=

This deviation was elaborately pointed

out in Chambers by Mr. Justice Harlan in

his partial dissent. Further, if this

relaxation of the warrant requirement is

thought to be justified by the diminished

expectation of privacy associated with

automobiles, (see Payton v. New York,

i » £06. Be. Sates L.Ed.2d

(1980), where the converse seems to have

been recognized), then this Court's deci-

sion in Arkansas v. Sanders, 442 U.S. 753,

99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and

United States v. Chadwick, 433 U.S. l,

97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) may

well have eroded an important underlying

premise of Chambers.

The questions presented for review

here are simply: 1) Whether Chambers

has abrogated the Fourth Amendment's

warrant preference in regard to automo-

biles, and 2) Whether the diminished

expectations of privacy associated with

-23-

automobiles extends to all portions of the

automobile under all circumstances.

Because of the obvious lack of exigent

circumstances in this case and the fact

that Petitioner's trunk was searched, this

case presents issues not fully addressed

in Chambers and clouded by Sanders and

Chadwick. Factually, this case draws

into controversy those aspects of Chambers

that have been troublesome to both members

‘

of this Court and other courts across the

country.

* ay eta rane ae

ak / berg

ROSE he & i

1010 Insurance

Exchange Building

Des Moines, Iowa 50309

(515) 243-7600

CERTIFICATE OF SERVICE

It is hereby certified by the under-

signed that true and accurate copies of

the foregoing legal Gocument were delivered

by depositing a copy of the same in the

United States Mail and addressed to Thomas

J. Miller, Attorney General of the State

of Iowa, Hoover State Office Building,

Des Moines, Iowa, 50319 and Stephen J.

Petersen, Muscatine County Attorney, 415

Iowa Avenue, Muscatine, Iowa 52761.

‘ ) 2 ie ¢, yes

Pa H. Rosenberg

~

App. l

SEARCH WARRANT

IN THE ASSOCIATE COURT OF THE IOWA DISTRICT

COURT OF MUSCATINE COUNTY, IOWA

THE STATE OF IOWA, :

Plaintiff : BEFORE:

vs. : Edmund D. Barry

: Magistrate dudge of

CARL ERIC OLSEN : Said Court

AND CERTAIN PERSONAL :

PROPERTY, : 28208-878

Defendants.

THE STATE OF IOWA, MUSCATINE COUNTY, ss

TO ANY PEACE OFFICER OF MUSCATINE COUNTY,

STATE OF IOWA:

WRITTEN INFORMATION, on oath, having

been made by a credible resident of the

State of Iowa, before me, Edmund B. Barry

Magistrate

dudge of said Court, and filed therein,

charging that certain personal property

is in said County within or about certain

(premises) (vehicle) as follows:

which (premtses) (vehicle)

iw owned, controlled or in the possession

of Carl Eric Olsen and/or said personal

property is in said County on or about the

person of which personal property is des-

cribed as follows:

App. 2

and which personal property is property

for which a search warrant may issue for

the reason that it is (steten-property )

(embez2ted-property) (property which has

been used as a means of committing or

accomplishing the commission of a felony).

That the undersigned magistrate is

satisfied from his examination of the

applicant, and of other witnesses, if any,

and of the information, of the existence of

the grounds of the application and that

‘there is probable cause to believe their

existence and that a SEARCH WARRANT should

issue; AND NOW THEREFORE YOU ARE COMMANDED

TO MAKE IMMEDIATE SEARCH of the above

named (premtses) (vehicle) (persen)

and if said

property or any part thereof be found, you

are to SEIZE the same with the vessels con-

taining same and to keep the same securely

until final action be had thereon, and you

will forthwith serve this writ and return

App. 3

same to this Court, with your return endorsed

thereon in accordance with law.

Given under my hand and seal of said

Court this 2lst day of May, 1978 ‘

/s/ Edmund D. Barry,

Magistrate

STATE OF IOWA, MUSCATINE COUNTY, ss.

I, Lowell L. Snyder, Deputy Sheriff,

Muscatine County Sheriff's Dept., Musca-

tine, Iowa hereby certify and return that

the within search warrant came into my

hands for service on the 2lst day of May,

A.D., 1978, and I executed same on the

2lst day of May, A.D., 1978, by making

search of the (vehicle) therein described

and found on vehicle therein described,

the following personal property, to-wit:

$10,915 in cash (See attached with

denomination and serial numbers of all

bills) 10 pieces of various containers

containing leafy material substance be-

lieved to be Marijuana. (See attached

list containing weights of each package

and total weight) One (1) brown samsonite

App. 4

briefcase containing two (2) packages

of leafy material substance believed to

be marijuana; two (2) small notebooks

containing coded material and names of

subjects.

which said personal property with

the vessels containing same I then and

there seized by virtue of the within

search warrant and which I now hold

subject to the further order of the

Court.

/s/ Lowell L. Snyder

STATE OF IOWA, MUSCATINE COUNTY, ss.

. Lowell L. Snyder, being duly

sworn do on oath say that the above

return is true and correct.

Subscribed and sworn to before me

this 28th day of August, A.D., 1978.

MOTION TO SUPPRESS

(Filed February 5, 1979)

IN THE IOWA DISTRICT COURT FOR MUSCATINE

COUNTY

App. 5

STATE OF IOWA,

NO. 738-578

Plaintiff, :

vs.

MOTION TO SUPPRESS

(Evidentiary Hearing

Requested)

CARL ERIC OLSEN,

Defendant.

The Defendant, Carl Eric Olsen, by

his attorneys, Raymond Rosenberg and

Gregory Johnston, hereby moves the Court,

pursuant to Rule 11 of the Iowa Rules of

Criminal Procedure for an Order suppressing

as evidence, all property seized on May

21, 1978 by police officers of the City

of Muscatine, Iowa, and West Liberty,

Iowa, and/or officers of the Sheriff's

office of Muscatine, Iowa, on May 21, 1978,

from the Defendant's motor vehicle and

from the Defendant, to-wit:

(A) $10,915.00 in United States

currency;

(B) 10 pieces of various containers,

containing leafy material;

(C) 1 Brown Samsonite Brief Case,

containing 2 packages of leafy material;

(D) 2 Small notebooks containing

App. 6

written material, as a result of the execu-

tion of a search warrant, dated the 21st.

day of May, 1978, which said warrant

directed police officers to search a

vehicle owned, controlled or in the pos-

session of Carl Eric Olsen. This motion

is made on the grounds that the above

property was illegally seized for the

following reasons:

1. The warrant was insufficient on

its face;

2. There was no probable cause for

believing the existence of the grounds

on which the warrant was issued;

3. The warrant was not obtained

in conformity with the requirements of

808.3 of Supplement to the Code of Iowa,

1977, in that the affidavit and sworn

testimony in support of said application

as shown in the information for search

warrant which furnished the basis for the

issuance for said warrant, does not set

App. 7

forth sufficient grounds for granting the

application and probable cause for be-

lieving that such grounds exist.

4. That the search warrant was issued

without a sufficient showing of probable

cause, violating the provisions of the 4th

and 14th Amendment to the Constitution

of the United States and Article l, § 8

of the Constitution of the State of Iowa.

DIVISION II.

The Defendant, Carl Eric Olsen, by

his attorneys, Raymond Rosenberg and

Gregory Johnston, hereby moves the Court,

pursuant to Rule 11 of the Iowa Rules of

Criminal Procedure for an Order suppressing

as evidence, all property seized on May

21, 1978, by police officers of the City

of Muscatine, Iowa, and West Liberty,

Iowa, and/or officers of the Sheriff's

office of Muscatine, Iowa, on May 21, 1978,

from the Defendant's motor vehicle and

from the Defendant, to-wit:

App. 8

(A) $10,915.00 in United States

currency;

(B) 10 pieces of various containers,

containing leafy material;

(Cc) 1 Brown Samsonite Brief Case,

containing 2 packages of leafy material;

(D) 2 Small notebooks containing

written material, as a result of the execu-

tion of a search warrant, dated the 21st

day of May, 1978, which said warrant

directed police officers to search a

vehicle owned, controlled or in the pos-

session of Carl Eric Olsen. This motion

is made on the grounds that the above

property is inadmissible evidence and

should be suppressed for the following

reasons:

(1) That on May 21, 1978, a search

warrant was issued by the above-entitled

court and executed by police officers on

the same date upon a car belonging to

the Defendant;

App. 9

(2) The property sought to be suppressed

was seized from Defendant's car as a result

of the execution of said warrant;

(3) The provisions of § 808.5 of

the Supplement to the Code of Iowa, 1977,

requires that when a warrant is executed,

it shall be forthwith returned to the

issuing Magistrate;

(4) The aforesaid warrant, while

executed on the 2lst day of May, 1978, was

not returned to the issuing magistrate

until the 28th day of August, 1978, which

constitutes a substantial failure to

comply with the provisions of said section.

(5) That paragraph 809.2 of the

Supplement to the Code of Iowa, 1977,

provides that a notice of hearing, con-

taining a reasonable description of the

property, the time, place and cause of

its seizure be issued within 48 hours of

the time of its seizure and that such

notice be reasonably calculated to apprise

App. 10

effected persons of the pendency of a

hearing;

(6) That the notice required under

§ 809.2 did not issue until the 29th day

of August, 1978, approximately 98 days

thereafter;

(7) That the proceedings herein are

illegal, unlawful and in violation of the

provisions of § 808.5 and 809.2 of the

Supplement to the Code of Iowa, 1977, and

that any action brought herein is as a

consequence thereof null and void;

(8) That the admission into evidence

of the above property should be suppressed

for failure to comply with the mandatory

provisions with respect to both the return

of the executed warrant and the giving of

notice of seizure within 48 hours from the

time of its seizure;

(9) That by failure to comply with

the provisions with respect to notice,

so as to reasonably apprise Defendant of

App. ll

the pendency of the action within the

period set out in the Statute, the search

warrant herein should be declared as

null and void for want of proper juris-

diction and compliance with the Statute.

(10) The property seized from the

Defendant's vehicle should be suppressed

as evidence against the Defendant at the

time of his trial.

/s/ Raymond Rosenberg

Attorney for Defendant

AMENDMENT TO MOTION TO SUPPRESS

(Filed March 9, 1979)

IN THE IOWA DISTRICT COURT FOR MUSCATINE

COUNTY

STATE OF IOWA,

NO. 738-578

Plaintiff,

vs. $ DEFENDANT'S FIRST

AMENDMENT TO MOTION

CARL ERIC OLSEN, : TO SUPPRESS

Defendant.

The Defendant, by his Attorneys,

Raymond Rosenberg and Gregory Johnston,

App. 12

does hereby Amend the Motion to Suppress

heretofore filed in this matter in the

following particulars:

1. That paragraph 1 of Division I

be amended to read as follows:

"1. That the warrant was insuffi-

cient on its face for the following

reasons:

(A) That it failed to describe

with particularity the place to be

searched.

(B) That it failed to specify

with particularity the property to

be seized."

2. That paragraph 4 of Count I be

amended to read as follows:

"4, That the search warrant was

issued without probable cause for the

following reasons:

(A) That the search warrant

failed to describe with particular-

ity the place to be searched.

App. 13

(B) That it failed to describe

with particularity the property to

be seized,

thus violating the provisions of the Fourth

and Fourteenth Amendments to the Constit-

ution of the United States and Article I

Section 8 of the Constitution of the State

of Iowa.”

3. That paragraph 5 be added to

Division I as follows:

"S. That the property sought to be

suppressed was seized pursuant to a warrant

that violated the provisions of the Fourth

and Fourteenth Amendments to the Constit-

ution of the United States and Article I

Section 8 of the Constitution of the

State of Iowa for the following reasons:

(A) That the search warrant

failed to describe with particularity

the place to be searched.

(B) That it failed to describe

with particularity the property to

—_

App. 14

be seized."

/s/ Raymond Rosenberg

Attorney for Defendant

RULING ON MOTION TO SUPPRESS

(Filed March 16, 1979)

IN THE IOWA DISTRICT COURT FOR MUSCATINE

COUNTY

STATE OF IOWA,

NO. 738-578

Plaintiff, :

Vs. :

CARL ERIC OLSEN, :

RULING

Defendant. :

Defendant has filed a motion to

suppress as evidence all property seized

on May 21, 1978 by law enforcement officers

from the defendant's motor vehicle and

from the defendant; namely, a substantial

amount of United States currency, ten

pieces of various containers containing

leafy material, a brown Samsonite brief-

case containing two packages of leafy

material, and two small notebooks con-

App. 15

taining written material.

One ground of the motion is that there

was no probable cause for believing the

existence of the grounds on which the

warrant was issued. The Court has examined

the warrant, has examined the application

for warrant, has examined the magistrate's

notes concerning additional testimony

taken from another law enforcement officer,

and has read the depositions of Officers

Snyder, Wiegand, and Trudell. The Court

is satisfied that there were substantial

grounds to believe that a large amount

of marijuana was located in the trunk of

the defendant's motor vehicle. There

would not have been probable cause to

believe such to be the case if the only

thing found by the officers had been the

partially consumed cigarette containing

marijuana and the tin of hashish or mar-

ijuana in the pocket of the defendant.

The significant factor was the overriding

App. 16

all-pervading odor of marijuana in and

about the vehicle that could not be explained

by these small items of such substance.

The officers all commented on this and the

experienced officers had ample reason to

believe that there had to be substantial

quantities of marijuana elsewhere in the

vehicle, and the only place else in the

vehicle would have been the trunk of the

car. Moreover, the officers had reason-

able grounds to believe that it was not

just a minor amount of marijuana in the

trunk of the car but had to be of some

substantial weight because of the depressed

condition of the rear of the car. The

general demeanor of the defendant likewise

contributed to reasonable cause to believe

that there was substantial quantities

of marijuana in the trunk.

The defendant also complains that

the evidence should be suppressed because

the warrant was insufficient on its face.

App. 17

The reasons alleged are that the warrant

failed to describe with particularity the

place to be searched and that it failed

to specify with particularity the property

to be seized. These two grounds are also

urged as an additional reason for claim-

ing that the search warrant was issued

without probable cause.

The Court has been unable to find.a

case exactly like this one. The affid-

avit applying for the search warrant was

clear and specific in identifying the pro-

perty to be seized and the vehicle to be

searched. The testimony of the witnesses

was also clear and precise and the minutes

of the magistrate in reciting the inform-

ation that he was given and the facts and

circumstances concluded is very clear,

and it is very clear that neither the

officer who signed the application nor

the officer who conducted the search and >

who also helped prepare the application

App. 18

and who also testified in front of the

magistrate nor the magistrate have any doubt

as to the precise description of the vehicle

to be searched nor precisely the subject

matter to be seized pursuant to the auth-

ority of the warrant. The magistrate him-

self actually saw the vehicle as indicated

in his minutes. The Court finds authority

that where there is ambiguity or uncertain-

ity in the warrant as to the property to

be searched, that this is not fatal where

the executing officer is the affiant.

The Court also finds note that an execut-

ing officer may look to the affidavit to

resolve an ambiguity in the warrant and

that where there is no doubt and can be

no mistake as to what is to be searched,

the fact that this. is not clear from the

face of the warrant is not fatal. 68 Am.

Jur. 2d Searches and Seizures, Section

74-77, pp. 728-732.

Although this is a difficult case,

App. 19

and the magistrate is really to be heavily

criticized for the sloppiness of his

warrant, the Court is going to rely and

does rely on the same reasoning. There

is no euabion whatsoever what the magis-

trate intended be seized, what the officer

desired to seize, and what the officers

were permitted to seize. This is done

by construing the application for the

warrant, the minutes of the magistrate,

together with the warrant itself. The

Court feels this is particularly true in

this case since the magistrate was present

and actually viewed the vehicle in the

saa of the police and where the

officers who participated in the search cs }}

and seizure also participated in the applics ot

ation and testimony before the magistrate.

The execution of the warrant in this case

was not done as a subterfuge, as a fishing

expedition, or in any manner as a means

of violating the provisions of the con-

stitution. The Court does not specifically

pass upon the question of whether or not the

items listed in the complaint were other-

wise validly seized under the warrant.

The Court rules only that the warrant was

intended to and did authorize the seizure

of any controlled substance or paraphern-

alia containing a controlled substance.

The term controlled substance is a term of

art and has meaning clearly identifiable

under the provisions of Chapter 204 of the

1977 Code of Iowa. Whether or not the

items listed in the initial inventory

were properly seized under the provisions

of the law where a valid search warrant

is being executed is a matter which was

not argued or advanced at this time.

The defendant further asks to have

the evidence suppressed by the reason of

what it claims to be a failure to comply

with the law in making a return on the

execution of the warrant. It is well

App. 21

established by the law of this state and

others that this is a ministerial matter

and will not affect the use of the seized

property and evidence, unless the defend-

ant chose prejudice, and the defendant has

shown none. It is stated that this is

not the usual case. I will assume without

deciding that possessing 129 pounds of

marijuana is not the usual case. However,

the record shows that the defendant was

contemporaneously informed by the arresting

officers of their find and his arrest on

the charge of possession of a controlled

substance with intent to deliver, he was

given a copy of the search warrant, he was

given a copy of the articles found in the

trunk of the automobile, although he

refused to acknowledge the same, and he

was given the right to and did contact

legal counsel almost immediately after

his arrest.

FOR THE REASONS ABOVE STATED, the

App. 22

motion to suppress is overruled in its

entirety.

/s/ MARGARET S. BRILES,

JUDGE

THE SUPREME COURT OF IOWA

NO. 63567

STATE OF IOWA

PLAINTIFF-APPELLEE,

Vs.

CARL ERIC OLSEN

DEFENDANT-APPELLANT.

APPEAL FROM THE DISTRICT COURT

OD MUSCATINE COUNTY

HONORABLE R. K. STOHR, JUDGE

Filed: June 18, 1980

Considered by REYNOLDSON, C.J. and

REES, HARRIS, MCCORMICK, and ALLBEE, JJ.

McCORMICK, Justice.

Defendant Carl Eric Olsen appeals

App. 23

his conviction by jury and sentence for

possession of a controlled substance with

intent to deliver in violation of

§ 204.401(1), The Code 1977. He contends

the trial court erred in overruling his

motion to suppress evidence obtained in

a search of his automobile and in over-

ruling his objection to testimony of a

D.C.I. agent which went beyond the scope

of the minute of his testimony attached

to the trial information. We uphold the

ruling on the search issue but reverse

and remand on the issue of the D.C.I.

agent's testimony.

(1) I. The search issue. Defendant

moved to suppress evidence seized as a

result of a search of his automobile,

alleging that the search violated U.S.

Const. Amend. IV and Iowa Const. art. I,

§ 8. Among other grounds, he contended

the search was unlawful because made

pursuant to a warrant which was invalid

App. 24

because it did not describe with parti-

cularity the place to be searched and the

property to be seized. Judge Margaret

Briles overruled the motion, and defendant

contends the ruling was wrong because of

the inadequacy of the description. In

resisting reversal, the State alleges the

warrant was valid, but, even if it was

not, the search was nevertheless lawful

because because of the existence of

probable cause and exigent circumstances.

Because a constitutional challenge is

involved, we find the facts de novo.

State v. Aschenbrenner, 289 N.W.2d 618,

619 (Iowa 1980).

While driving his 1977 Dodge auto-

mobile near West Liberty at appro#imately

10:45 p.m. on May 20, 1978, defendant |

passed two other vehicles in a no-passing

zone. The incident was observed by deputy

sheriff Lowell Snyder, who pursued defend-

ant and stopped his automobile in West

7%

App. 25

Liberty. Two West Liberty police officers

came to the scene of the stop shortly

afterward. Snyder was somewhat suspicious

of defendant because he was driving a car

with out-of-county plates, seemed to be

unfamiliar with the road, and appeared to

be in a hurry. As a result, he ordered

a vehicle check which confirmed

Defendant's ownership of the automobile.

While issuing him a citation for the traffic

violation, Snyder smelled marijuana on

defendant's clothing. He and the other of-

ficers also smelled a strong marijuana

odor coming from the interior of the vehicle.

One officer observed and removed a mar-

ijuana cigarette, which he called "a large

roach", from the front ashtray. A small

cardboard box containing marijuana seed

was removed from the front seat. The

officers, who were experienced in drug

investigations, believed the odor of

marijuana was stronger than could be

App. 26

accounted for by the cigarette. They

noticed the rear of the vehicle appeared

to be weighted down.

Defendant was placed under arrest

for possession-of marijuana. A search

of his clothing turned up a small "rock-

hard" quantity of hashish in a shirt

pocket and twelve to fourteen dollars in

quarters in his trouser pockets. He

admitted to a prior arrest for possession

of marijuana. The officers searched the

interior of the vehicle without finding

any additional drugs. They then asked

defendant for permission to search the

trunk. He became quite nervous and refused,

telling the officers he had people waiting

for him and was in a hurry. He asked

them to leave his vehicle alone.

The officers suspected defendant

might be carrying additional marijuana

in the trunk of the car. For that reason

they decided to take the vehicle to the

App. 27

West Liberty police station to be held

while they sought a search warrant. The

vehicle was towed to the station and

guarded until a warrant was obtained.

Depute Snyder obtained and executed

the search warrant. He found 129 pounds

of marijuana in the trunk of the vehicle,

most of which was contained in bales wrap-

ped in brown paper. Another officer dis-

covered a white paper bag behind the spare

tire which contained $10,915. in currency.

Additional marijuana was found in a

briefcase, and other items were also seized.

We will assume, without deciding that

the warrant was invalid in form as asserted

by defendant because we believe it is

clear the State is right that the search

was lawful even without the warrant.

(2) While a warrant is preferred,

the fourth amendment "does not require a

search warrant . .. when the police stop

an automobile on the street of highway

App. 28

because they have probable cause to belive

it contains contraband or evidence of a

crime." Arkansas v. Sanders, 442 U.S.

753, 760, 99 S.Ct. 2586, 61 L.Ed.2d 235,

242 (1979). While the "automobile

exception" does not invariably authorize

warrantless vehicle searches, the Supreme

Court has recognized two reasons for treat-

ing the warrant requirement differently

for automobiles than for other private

property. One is the "inherent mobility"

of automobiles, and the other is the dil-

uted "reasonable expectation of privacy"

resulting from their "configuration, use,

and regulation." Id. at 761, 99 S.Ct,

at 2591, 61 L.Ed 2d at 243.

The Carroll-Chambers doctrine has

evolved in automobile search cases. [In

Carroll v. United States, 267 U.S. 132,

45 S.Ct. 280, 69 L.Ed. 543 (1925), the

Supreme Court held that a search warrant

is unnecessary for search of an automobile

App. 29

when probable cause and exigent circumstances

exist. Furthermore, the exigent circum-

stances requirement is satisfied "when

the car is movable, the occupants are a-

lerted, and the car's contents may never

be found again if a warrant must be

obtained." Chambers v. Maroney, 399 U.S.

42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d

419, 428 (1970).

In Chambers the Court carried Carroll

one major step further. The question in

Chambers was the admissibility of evidence

seized from an automobile after the auto-

mobile was taken from the scene of the

accused's arrest to a police station and

there thoroughly searched without a

warrant. The Court held that if a war-

rantless search of the automobile at

the scene would have been reasonable,

the automobile could be seized and taken

to the station house for the later warrant-

less search. The Court said: "For con-

App. 30

stitutional purposes, we see no difference

between on the one hand seizing and holding

a car before presenting the probable cause

issue to a magistrate and on the other

hand carrying out an immediate search

without a warrant. Given probable cause

to search, either course is reasonable

under the Fourth Amendment." Id. at 52,

90 S.Ct. at 1981, 26 L.Ed2d at 428.

We applied the Carroll-Chambers doc-

trine in upholding a warrantless search of

an automobile at the scene of arrest in

State v. King, 191 N.W.2d 650, 657 (Iowa

1971), cert. denied, 406 U.S. 908, 92 S.

Ct. 1617, 31 L.Ed.2d 819 (1972) ("Under

Chambers it was just as reasonable to

search the car without a warrant as it would

be to seize it and hold it until a warrant

could be obtained").

However, in State v. Schlenker, 234

N.W.2d 142, 145 (Iowa 1975), we refused

to find exigent circumstances authorizing

App. 31

a warrantless search upon probable cause

when an automobile had been immobilized

long enough for officers to obtain a

warrant which turned out to be invalid.

We said: "The obtaining of the invalid

warrant belies and negatives any rational

claim of exigent circumstances." Id.

At that time some doubt existed as to

the scope of Chambers.

In Preston v. United States, 376

U.S. 364, 84-S.Ct. 881, 11 L.Ed.2é 777

(1964), and Dyke vs. Taylor Implement

Manufacturing Co., 391 U.S. 216, 88 S.Ct.

1472, 20 L.Ed.2d 538 (1968), the Supreme

Court had invalidated station house

searches of automobiles seized during

arrests. Those cases were distinguished

but not overruled in Chambers. Moreover,

the Chambers opinion included a footnote

specifically finding the decision of the

officers in that case to search the car at

the police station rather than at the

App. 32

scene was "not unreasonable" in the cir-

cumstances. 399 U.S. at 52 n.10, 90 S.Ct.

at 1981, 26 L.Ed2d at 429. It was not

certain that Chambers was intended to give

officers an automatic right to search a

vehicle upon probable cause without a

warrant after immobilizing it long enough

to obtain a warrant upon a mere showing

that probable cause and exigent circumstances

would have permitted a warrantless search

at the time it was stopped.

This issue was settled by the Supreme

Court in Texas v. White, 423 U.S. 67, 96

S.Ct. 304, 46 L.Ed.2d 209 (1975) (per

curiam), decided after our decision in

Schlenker. In White the Court held that

so long as the probable cause for a search

at the scene of the stop still obtained

at the station house, a warrantless search

at the station house was permissible. It

is not clear that the absence of exigent

circumstances for the later search is wholly

App. 33

irrelevant. Exigent circumstances are

necessary only initially. In White the Court

characterized its holding in Chambers by

saying: "In Chambers v. Maroney we held

that police officers with probable cause

to search an automobile at the scene where

it was stopped could constitutionally

do so later at the station house without

first obtaining a warrant." Id. at 68, 96

S.Ct. at 305, 46 L.Ed.2d at 211.

(3) It is thus established as a

matter of federal constitutional law that

if the search in the present case could have

been made at the scene of the stop without

a warrant, the automobile could still be

searched after it was moved to the police

station, provided only that probable cause

still existed. We are not free to give

a more restrictive interpretation to the

.Federal Constitution than that of the

United States Supreme Court. Oregon v.

Hass, 420 U.S. 714, 719, 95 S.Ct. 1215,

App. 34

1219, 43 L.Ed.2d 570, 576 (1975).

However, we are still free to apply

our Schlenker holding as a matter of state

law if we should exercise our perogative to

interpret the Iowa Constitution more re-

strictively than the Supreme Court has

interpreted the comparable language in

the Federal Constitution. See Bierkamp

vs. Rogers, N.W.2d ’

(Iowa 1980) ("The result reached by the

United States Supreme Court in construing

the federal constitution is persuasive, but

not binding upon this court in construing

analogous provisions in our state consti-

tution."). We have an interest in harmon-

izing our constitutional decisions with

those of the Supreme Court when reason-

ably possible, even though we recognize

and wili jealously guard our right and

duty to differ in appropriate cases. In

this case we are persuaded that the state

constitution should be given the same

App. 35

interpretation as the Federal.

We conclude that we will apply the

Carroll-Chambers doctrine under Iowa

Const. art. I, § 8, rather than the holding

in Schlenker.