Petition for Writ of Certiorari — Lynch v. Iowa

FILE Copy| “FTES

AUG 3 19/2

MICHAEL RODAK, JR.,CLERK

IN THE

Supreme Court of the Gnited States

Ocroser Term, 1972.

No...___§ 2-5184

a

KEVIN JOSEPH LYNCH,

Petitioner,

vs.

STATE OF IOWA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF IOWA

R. Frep Dumsaveu,

327 Professional Park,

Cedar Rapids, Iowa 52401,

Attorney for Petitioner.

Pa

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Po

INDEX

Citations to Opinions Below

Jurisdiction

Question Presented

Statutes Involved

Reasons for Granting the Writ

Authorities and Argument

Conclusion

Aguilar v. State of Texas, 378 U. S. 108 (1964)

Johnson v. The United States

IN THE

Supreme Court of the United States

Ocroser Term, 1972.

ee cio =

KEVIN JOSEPH LYNCH,

Petitioner,

vs.

STATE OF IOWA,

Respondent.

| PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF IOWA.

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the Supreme Court of the State of

Iowa, entered on the 8th day of May, 1972, in the case

entitled ‘State of Iowa, Appellee, vs. Kevin J oseph Lynch,

Appellant.’’

CITATIONS TO OPINIONS BELOW

The judgment of the District Court of the State of Iowa

in and for Linn County in the case of “State of Iowa vs.

Kevin Joseph Lynch’? is unreported and is printed in

Appendix B hereto, infra, p. 1. The opinion of the

Supreme Court of the State of Towa, printed in Appendix

B hereto, infra, pp. 2-12, is reported in 197 N. W. 2d 186.

JURISDICTION

The opinion of the Supreme Court of the State of Iowa

was entered on April 13, 1972. A petition for rehearing

was filed with said Court, and was denied by order dated

May 8, 1972. The jurisdiction of this Court is invoked

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

QUESTION PRESENTED

Can an information for a search warrant which is based

in part on certain information which has been related to

the affiant by unidentified informants provide the magis-

trate with sufficient probable cause for the issuance of the

search warrant when the information for a search warrant

contains no facts which in any way inform the magistrate

of certain underlying circumstances necessary to enable

the magistrate independently to judge the validity of the

informant’s conclusions or to attempt to support the

affiant’s claim that the informants were credible or their

information reliable.

STATUTES INVOLVED

The State statutes and laws involved are the following,

both of which are printed in Appendix A hereto:

1. Article I, Section 8, Constitution of the State of

Towa.

2. Sections 751.4, 751.5, 1966 Code of Iowa.

STATEMENT OF CASE

Petitioner herein was arrested on December 22, 1968, and

charged with the crime of possession of narcotic drugs,

contrary to the statutes of the State of Iowa (R. p. 11).

3

Prior to the arrest of the Defendant as aforesaid, and

more particularly, on the 20th day of December, 1968,

police officers from the Cedar Rapids, Iowa Police Depart-

ment swore to an information for a search warrant in the

Linn County, Iowa District Court, which information re-

quested a search warrant to search the Defendant and a

man’s blue suitcase (R. pp. 9-10). A copy of the informa-

tion for search warrant referred to herein is printed in

Appendix C hereto, infra. The information for a search

warrant was presented to the Honorable William R. Eads

at approximately 12:10 P. M. on December 20, 1968, and a

search warrant issued signed by said judge on that date

(R. p. 11). A copy of the search warrant is printed in

Appendix C hereto, infra, pp. 3 and 4. On the 22nd day of

December, 1968, pursuant to the aforesaid warrant, a

search was conducted of a man’s blue suitcase by officers of

the Cedar Rapids Police Department, and a return of

service of said search warrant was made and filed with the

Court (R. pp. 12-13). Among some of the items found

during the aforesaid search were certain narcotic drugs,

and a brown pasty substance later identified during the

trial of this cause by a chemist as 234.8 grams of good

grade marijuana (R. p. 12).

On the 18th day of July, 1969, the Defendant filed a

Motion to Suppress Evidence, which Motion alleged that

the information for the search warrant referred to herein

did not furnish sufficient probable cause for the issuance

of the search warrant, and that the subsequent search of

the suitcase violated the Defendant’s rights pursuant to

the Fourth Amendment to the Constitution of the United

States and Article I, Section 8, of the Constitution of the

State of Iowa, and in particular, the information for the

search warrant did not set forth sufficient circumstances

and facts necessary to enable the magistrate independently

to judge on the validity of the informant’s conclusions, and

4

that said information set forth no facts or circumstances to

support the officer’s claim that their informants were, in

fact, credible, or that their information was reliable (R.

pp. 4-8). The State of Iowa resisted Defendant’s Motion

to Suppress, and on the 26th day of August, 1969, the Court

overruled Defendant’s Motion to Suppress Evidence (R.

pp. 15-16). The cause came on for trial pursuant to assign-

ment on October 20, 1969, before a jury. During the trial,

the blue suitcase which was the subject of the search re-

ferred to aforesaid was marked as State’s Exhibit 4 and

was admitted into evidence over the objection of Defendant

(R. pp. 71-72). A paper bag containing eight tinfoil

wrapped balls of a pasty brown substance was marked as

State’s Exhibit 5, and was identified as being 234.8 grams

of good grade marijuana having been removed from the

man’s blue suitcase marked State’s Exhibit 4, and was

admitted into evidence over Defendant’s objection (R. pp.

84-85). On the 22nd day of October, 1969, the jury rendered

a verdict finding the Defendant guilty of the crime of

possession of marijuana (R. p. 114).

‘ On the 28th day of August, 1970, the Court pronounced

judgment and sentence against the Defendant, and the

Defendant was adjudged to be guilty of the crime of pos-

session of marijuana and was sentenced to pay a fine of

Five Hundred Dollars ($500.00) and to serve a term of

two years at the Iowa Mens Reformatory at Anamosa,

Towa, and to pay the costs (R. p. 117).

The judgment against the Petitioner as aforesaid was

appealed to the Iowa Supreme Court. In affirming the judg-

ment, the Iowa Supreme Court rejected Petitioner’s claim

that the search warrant under which the contraband drugs

were seized, was issued without probable cause. The Iowa

Supreme Court found from the facts that on December 20,

1968, a search warrant issued upon the order of the

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5

Honorable Willam R. Eads, Judge of the Linn County

District Court, and that said judge found probable cause

had been shown for the immediate search of a man’s suit-

case for ‘‘narcotic drugs, marijuana, and prescription

drugs.’’ They further found that the order for issuance

of search warrant was based entirely upon the facts shown

in the sworn information filed by Detectives Trousdale and

Mayer, who had stated urnuer oath substantially as follows:

That they had made a complete investigation into Defend-

ant’s activities and knew all of the facts in the police file,

that they were aware of Defendant’s suspicious activities

during the previous two weeks; that they had reliable in-

formation from a reliable informant who is a credible resi-

dent of the State of Iowa that Defendant has been selling

narcotic drugs and marijuana, and that Defendant left

several days previous to the date of application for Cali-

fornia to pick up a load of drugs; that during a flight into

Cedar Rapids Defendant had offered to obtain drugs for

an air line stewardess; that Defendant was arrested on or

about June 5, 1968, in California on a narcotics charge;

that an official from United Air Lines informed affiants that

Defendant had offered to obtain narcotics for the stew-

ardess on his flight on December 19, 1968. In their opinion,

the Iowa Supreme Court summarized the circumstances

under which probable cause may be said to exist for the

issuance of a search warrant, both under Amendment Four

of the United States Constitution, and under Section 8,

Article I of the Constitution of the State of Iowa, as:

(1) Search warrants may issue only on a showing of

probable cause under oath or affirmation; (2) In passing

on the validity of a search warrant, a reviewing court may

consider only information brought to the attention of the

issuing officer; (3) The issuing officer must make his own

independent determination of probable cause on the basis

of facts related to him, and may not rely on mere conclu-

sions recited by the applicant. The Iowa Supreme Court

found that, except for the recitation that Defendant had

offered to supply narcotics to the stewardess on the flight

into Cedar Rapids, there was no probable cause shown for

the issuance of the search warrant. They further stated

that all of the other conclusions made by the affiants were

entirely unsupported by the facts. The Iowa Supreme

Court held that they would affirm the issuance of the search

warrant only because of the factual recitation concerning

the conduct of the Defendant on his flight to Cedar Rapids,

and that it was reasonable to conclude that one traveling

on an airliner who offers narcotics to the stewardess may

have such narcotics on his person or among his effects,

and, supported by the statements of an official of the air

lines, this was sufficient to furnish probable cause.

The Iowa Supreme Court apparently ignored the fact

that the information for the search warrant in this case

was based on certain facts and conclusions given the affiants

from two sources. This information came from (1) an un-

identified informant, and (2) an unidentified ‘‘official’’ of

United Air Lines. Finally, the Iowa Supreme Court ignored

their prior holding which they summarized in this case

setting forth the circumstances under which probable cause

may be said to exist for the issuance of a search warrant,

and in particular, ignored the holding-of Spinelli v. United

States, 393 U. S. 410, which states the two standards that

must be met in situations such as this before probable

cause may be shown to exist, namely: (1) That the applica-

tion must set forth certain underlying circumstances neces-

sary to enable the magistrate independently to judge on

the validity of the informant’s conclusion, and (2) That

the application must purport in some way to support the

affiant’s claim that the informant was credible or his in-

formation reliable.

1. The holding of the Iowa Supreme Court sanctions a

procedure whereby search warrants may issue without first

providing the issuing magistrate with sufficient probable

cause for the issuance of the search warrant.

2. The holding of the Iowa Supreme Court allows search

warrants to issue which are based on information obtained

from unidentified informants without the necessity of fur-

nishing the issuing magistrate information as to certain

underlying circumstances necessary to enable the magis-

trate independently to judge on the validity of the in-

formant’s conclusion, or to furnish facts which support the

claim that the informant was credible or his information

reliable.

3. The holding of the Iowa Supreme Court ailows evi-

dence, which is garnered or seized pursuant to a search

warrant which was issued contrary to acceptable federally

guaranteed constitutional standards, to be used as evidence

in state court trials in the State of Iowa in direct conflict

to holdings of the Supreme Court of the United States.

AUTHORITIES AND ARGUMENT

The Fourth Amendment to the Constitution of the United

States states that the right of a person to be secure in his

person, house, papers and effects, against unreasonable

searches and seizures shall not be violated, and further

states that no warrant shall issue to search any of the

aforesaid items, but on probable cause supported by oath or

afirmation, and particularly describing the place to be

8

warrant in question. It is the contention of the petitioner

that the information referred to herein did not furnish

sufficient probable cause for the issuance of the search

warrant, and was, therefore, defective, and that the search

warrant issued on the basis of the information was not

proper and was illegal, and that any evidence seized thereby

should be suppressed and is, therefore, inadmissible.

The decision of the Supreme Court of the United States

in Aguilar v. State of Texas, 378 U. 8. 108 (1964), clarified

many questions with what is or is not sufficient probable

eause for the issuance of a search warrant. Aguilar in-

volved a search by two Houston police officers pursuant to a

search warrant to search for narcotics at Aguilar’s home.

In support of the officers’ application for the issuance of

the warrant, they submitted an affidavit which in part, re-

cited that: ‘‘Affiants have received reliable information

from a credible person and do believe that heroin, marijuana

and barbituates, and other narcotics and narcotic para-

phernalia are being kept at the above described premises

for the purpose of sale and use, contrary to the provisions

of law.’’ Based upon the aforesaid statement, the Justice

of the Peace issued a warrant that certain narcotic items

were discovered at the home of the petitioner. Upon appeal

to the Supreme Court of the United States, it was held by

the court that any evaluation as to the sufficiency or con-

stitutionality of a search warrant should begin with a rule

that ‘‘the informed and deliberate determinations of magis-

trates empowered to issue warrants are to be preferred

over the hurried actions of officers who may happen to make

arrests.”’ The whole purpose for the requirement of the

Fourth Amendment is quoted in Aguilar from a quote of

Justice Jackson which originally appeared in the case of

Johason v. The United States, and which states : “The point

of the Fourth Amendment, which often is not grasped by

zealous officers, is not that it denies law enforcement the

Supreme Court in A

trate iust be informed of some of the underlying cine,

“The magis-

10

stances from which the informant concluded that the nar-

coties. were where he claimed they were, and some of the

underlying circumstances from which the officer concluded

that the informant, whose identity need not be disclosed,

was credible or his information reliable.”’ To do otherwise,

would result in the inference from the facts which led to

the complaint being drawn, not by a neutral and detached

magistrate as the constitution requires, but instead by a

police officer ‘‘engaged in the often competitive enterprise

of ferreting out crime.’’

The case of Spinelli v. United States, 393 U. S. 410 (1969),

amplified upon Aguilar and clearly set forth the require-

ments necessary for an information for a search warrant

to be sufficient, and to provide adequate probable cause.

In Spinelli the affidavit was that of an F. B. I. agent, was

very lengthy, and related both to actual personal observa-

tions made by the F. B. I. agent, and information support-

ing these observations and conclusions from an unidenti-

fied informant. The Supreme Court of the United States

held the affidavit for the issuance of the search warrant to

be insufficient, and as a result, struck down the search

which was conducted as a result thereof. The court in

Spinelli cited with approval the two standards previously

set forth in Aguilar which were (1) that the application

must set forth certain underlying circumstances necessary

to enable the magistrate independently to judge on the

validity of the informant’s conclusion, and (2) that the

application must attempt in some way to support the

affiant’s claim that the informant was credible or his in-

formation reliable.

The Supreme Court in Spinelli went on to state that an

information for a search warrant which relies in part upon

an unidentified informant’s report must first be measured

against Aguilar’s standards so that its probative value may

11

be assessed. If the tip is found inadequate under Aguilar,

then the other allegations which corroborate or tend to

corroborate the information in the hearsay report should

then be considered. However, at any stage in the determina-

tion by the magistrate, the standards enunciated in

Aguilar must inform the magistrate as follows: ‘“Can it

fairly be said that the tip, even when certain parts of it

have been corroborated by independent sources, is as

trustworthy as a tip which would pass Aguilar’s test with-

out independent corroboration.’’ Aguilar is very relevant

at that stage of the inquiry because tests it establishes are

designed to implement the long-standing principle that

probable cause must be determined by a ‘‘neutral and de-

tached magistrate, and not by an officer engaged in the

competitive business of ferreting out crime.’ In applying

the above principles to the Spinelli case, the Supreme Court

first considered the weight to be given the informer’s tip

when it was considered apart from the rest of the affidavit.

They found it was clear that a commissioner could not

credit it without abdicating his constitutional function. Al-

though the affiant swore that his information was **reli-

able’’, he offered the magistrate no reason in support of his

conclusion. Thus, the magistrate had no independent facts

upon which to base his decision as to the reliability or non-

reliability of the informant’s tip, and therefore, the infor-

mation failed to pass the test as set forth under the Aguilar

decision. In Spinelli, the informant’s sources for informa-

tion were not set forth, and no facts were alleged to indi-

cate why or how the informant was in any way reliable.

in connection therewith, the Supreme Court held: ‘In the

absence of a statement detailing the manner in which the

information was gathered, it is especially important that

the tip describe the accused’s criminal activity in sufficient

detail so that the magistrate may know that he is relying

on something more substantial than a casual rumor circulat-

12

ing.in the underworld or an accusation based on an indi-

vidual’s general reputation.’’

In the case of this petitioner, we have a situation very

similar to that which existed in Spinelli. We have the

statements made apparently to the affiants by the unidenti-

fied informant, and by the unidentified ‘‘official’’ of United

Air Lines, relative to the petitioner and his activities,

but with no recitation as to how either of these informants

came by their facts. We further have no information

as to why either of the informants was reliable or credible,

and thus, the independent determination as to merit or

nonmerit of the informant’s information was taken from

the hands of the magistrate and placed in the hands of

the detectives who were engaged in ‘‘the competitive busi-

ness of ferreting out crime.’’ The tips of the informants

were allegedly corroborated and supported in the instant

action by certain observations made by the affiants on the

information’’ that they knew all the facts in the police

file about the Defendant, and that they had observed the

Defendant’s suspicious actions.’”’ As the Iowa Supreme

Court correctly found, these conclusions were entirely un-

supported by the facts. The Iowa Supreme Court found

that the only showing which established probable cause

in the entire information for the search warrant, was the

factual recitation concerning the conduct of the petitioner

on his flight to Cedar Rapids. The court held that it is

reasonable to conclude that one traveling on an airliner

who offers narcotics to the stewardess may have such

narcotics on his person or among his effects. Supported

by the statements of an official of the air lines, this was

sufficient in the eyes of the Iowa Supreme Court to furnish

probable cause. However, at no place on the information

for the search warrant in this matter is there any reference

to the fact that any of the information contained therein

13

came directly from the stewardess herself. Perhaps the

Iowa Supreme Court assumed this to be the case, and if so,

acted contrary to the holdings in Aguilar and Spinelli,

Also, even though one of the informants was identified as

being an ‘‘official’’ of the air lines, no facts were presented

to the magistrate as to what sort of an ‘‘official’’ of the

air line was the informant, nor were any facts concerning

the background of the “‘official’’ of the air line given to

the magistrate on the information for search warrant

which the Iowa Supreme Court found to be the only in-

formation presented to the magistrate. It is clear that

the requirement that the magistrate, prior to issuing a

search warrant, be informed of some of the underlying

circumstances from which the affiant concluded that the

informants, whose identity need not be disclosed, were

eredible or their information reliable, was not complied

with. By labeling one of the unidentified as an ‘official’?

of the air lines does not adequately or properly meet this

requirement. There are most certainly unreliable ‘‘officials’’

of the air lines as well as reliable “‘officials’’, that particu-

lar industry being no different than any other industry

or business. Without furnishing further information as

to the particular ‘‘official’’ and his reputation for reliabil-

ity, or any information as to the source from which the

“official’’ garnered his facts, the requirements of Aguilar

and Spinelli, which are the law of this country, have not

been complied with.

It therefore appears that the final resolution and settle-

ment of the problems raised in this Petition for Writ of

Certiorari are plainly in the interests of the administration

of criminal justice.

14

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

R. Frep DumsBaves,

327 Professional Park,

Cedar Rapids, Iowa 52401,

Attorney for Petitioner.

APPENDIX A

1. Article I, Section 8, Constitution of the State of Iowa

Personal security—searches and seizures. Sec. 8. The

right of the people to be secure in their persons, houses,

papers and effects, against unreasonable seizures and

searches shall not be violated; and no warrant shall issue

but on probable cause, supported by oath or affirmation,

particularly describing the place to be searched, and the

persons and things to be seized.

2. Section 751.4, 1971 Code of Iowa

751.4 Information. Any credible resident of this state

may make appplication for the issuance of a search war-

rant by filing before any magistrate, except a judge of the

supreme court, a written information, supported by his

oath or affirmation, and alleging therein the existence of

any ground or grounds specified in this chapter as ground

for issuance of a search warrant and that he believes and

has substantial reason to believe that said ground or

grounds exist in fact. Said information shall describe

with reasonable certainty the person or premises, or both,

to be searched, the property to be seized, and the person,

if known, in possession of said premises and property.

If the magistrate thereafter issues the search warrant,

he shall endorse on the application the name and address

of all persons upon whose sworn testimony he relied to

issue such warrant together with an abstract of such wit-

ness’ testimony. However, if the grounds for issuance

is supplied by an informant, the magistrate shall only

identify the peace officer to whom the information was

A2

given and that he finds that such informant had previously

given reliable information.

3. Section 751.5, 1971 Code of Iowa

751.5 Issuance of warrant. If the magistrate is satis-

fied from his examination of the applicant, and of other

witnesses, if any, and of the allegations of the information,

of the existence of the grounds of the application, or that

there is probable cause to believe their existence, he shall

issue a search warrant, signed by him with his name of

office, directed to any peace officer in the county, command-

ing him forthwith to search the person or place named

for the property specified, and bring said property before

him.

APPENDIX B

In tHe District Court or Iowa,

in and for Linn County

Tse State or Iowa, ;

Plaintiff, No. 22799

vs.

-_ udgment and

Kevin Josepx Lynon, Sentence

Defendant. |

The defendant appears in open court in person and with

his counsel R. Fred Dumbaugh, for sentencing. The de-

fendant is sentenced under the provisions of Chapter 204

and by reason of the jury verdict of guilty in the trial

of this cause of the crime of possession of marijuana not

for personal use, to pay a fine of $500 and to serve a

sentence of two years in the Iowa Men’s Reformatory

at Anamosa, Iowa. Costs taxed to the defendant. Appeal

bond $1,000. The defendant shall be given credit for time

which he spent in the Linn County, Iowa jail after he was

arrested on this charge. Defendant will be given until

12:00 o’clock noon, September 4, 1970 to report to the

office of the sheriff of Linn County, Iowa to commence

serving his sentence herein imposed. Defendant was ad-

vised of his right to appeal.

Dated this 28th day of August, 1970.

/s/ B. J. Maxwet,

Judge of the Eighth Judicial District

of Iowa.

A4

In toe Supreme Court or Iowa

Strate or Iowa, >

Appellee, | Filed April 13, 1972.

vs.

F 11

Kevin Josepn Lynou, 54443

Appellant. }

Appeal from Linn District Court—B. J. Maxwell, Judge.

Defendant was convicted of possessing marijuana for

sale. He was sentenced under section 204.20(5), The Code,

1966, and he appeals from that judgment—AFFIRMED.

R. Fred Dumbaugh and Guy P. Booth, both of Cedar

Rapids, for appellant.

Richard C. Turner, Attorney General, and Allen J. Luke-

hart, Assistant Attorney General, for appellee.

LeGranp, J.

Defendant was convicted of violating chapter 204 of the

Uniform Narcotic Drug Act, The Code, 1966 (since re-

pealed and replaced by the Uniform Controlled Substances

Act, chapter 148 and amended by chapter 149, Acts of the

Sixty-fourth G.A., First Session). He appeals from the

judgment sentencing him to serve a term of two years in

the men’s reformatory and to pay a fine of $500.00. We

affirm the trial court.

We refer to the facts as they become important in our

consideration of the various issues relied upon for reversal.

These issues are: (1) the conviction must be set aside

because defendant had not entered a plea to the charge of

which he was accused; (2) there was prejudicial error in

defining the crime of which defendant was convicted;

epee aaamanaes se:

A5

(3) there was prejudicial error in the admission of testi-

mony offered by a state narcotics agent; (4) section 204.18,

The Code, 1966, is unconstitutional because it imposed upon

defendant the burden of proving one of the elements of the

charge against him; and (5) no probable cause existed for

the issuance of the search warrant under which certain

contraband drugs were seized and this evidence should

have been suppressed.

I. We consider first defendant’s claim of prejudice be-

cause he was tried without first having entered a plea to

the charge against him. As pointed out in State v. Dorr,

184 N.W. 2d 673 (Iowa 1971), our law recognizes only three

pleas in criminal cases—guilty, not guilty, or former judg-

ment of conviction or acquittal of the defendant. Section

777.11, The Code.

We assume defendant did not desire to enter a guilty

plea; nor does he contend the plea of former conviction or

acquittal was available to him. This then leaves open to

him only a plea of not guilty.

Defendant was not prejudiced by the inadvertent omis-

sion of recording a formal not guilty plea. He stood trial

without objection and his position was precisely the same

as if such a plea had been entered. The jury, in fact, was

told that the defendant had entered a not guilty plea.

The contention urged by defendant here has been un-

successfully made on a number of prior occasions. What

we said in State v. Girdler, 251 Iowa 868, 870, 102 N.W. 2d

877, 878 (1960) is decisive here. There is no reversible

error in this assignment.

II. Defendant also asserts he should have a new trial

because the crime of which he was convicted was improp-

erly defined in the court’s instructions. Conceding the

procedure followed is not one to be recommended, we

reach the conclusion defendant is not entitled to the

relief demanded.

A6

Defendant was convicted of the Wagel possession of |

marijuana. Section 204.20(5), The Code, 1966, prescribes —

the punishment for this offense depending upon the cir-

cumstances of the possession. This section provides in

pertinent part as follows:

“‘Any person violating this chapter by possessing, pur-

chasing, or attempting to purchase marijuana in such

lesser included offense of possession of marijuana held

for sale. * * *’’

Defendant argues the instructions submitted an im-

proper definition of the crime and permitted his conviction

for conduct which the statute does not prohibit. To put

this issue in proper perspective we set out in detail the

instructions dealing with this assignment.

In its statement of the issues the trial court said de-

fendant was accused of possessing marijuana ‘‘in such

quantity that it can be logically inferred that such mari-

juana was not intended for personal use only.”’ No men-

tion was there made about selling the drug to others.

A7

Instruction 6 contained the following:

“The information herein charges possession of

narcotic drugs and included in this charge are the

following offenses: Possession of marijuana for sale.

Possession of marijuana for personal use.”’

The elements which the State was required to prove

beyond a reasonable doubt to secure a conviction were set

out in Instruction 8 as follows:

‘In order to convict the defendant in this casé the State

must establish beyond a reasonable doubt each of the

following propositions, to wit:

“1. That the substance marked State’s Exhibit 5 in

this record is marijuana.

“*2. That the defendant did on or about December 22,

1968 in Linn County, Iowa, have said exhibit in his

possession or under his control as defined in these

instruct

“3. At said time and place defendant knew of the

presence of said exhibit and knew that it was mari-

juana.

“If you find the State has proven all of the foregoing

propositions beyond a reasonable doubt, then you must

further determine whether said possession by the de-

fendant was or was not for purposes of personal use

only, as hereinafter defined.

“If you find the State has failed to prove any of the

foregoing propositions beyond a reasonable doubt then

it is your duty to find the defendant not guilty, and

return your verdict on Verdict Form No. 3.

“If you find that the State has established beyond a

reasonable doubt that the amount of marijuana in

said State’s Exhibit in this record is in such quantity

that it can be logically inferred that such marijuana

was not intended for personal use only but was held

for sale to others then it is your duty to find the de-

fendant guilty of possession of marijuana not for

marijuana

verdict on Verdict Form No. 2.”’

The jury found defendant guilty of the greater offense

and returned its verdit on Form No. 1 which is here set

out in full:

**Verpicr Form No. 1

**We, the jury find the defendant, Kevin Joseph Lynch,

guilty of possession of marijuana not for personal use.

/s/ Kexwers L. Goopwix, Foreman

10-22-69.”’

Defendant’s argument may be paraphrased in this man-

ner. He says that under the instructions and the forms of

jury verdict submitted he was convicted of a crime for

which there is no statutory basis. Sections 204.2 and

204.20(5) define the criminal possession of marijuana in

two ways—possession for personal use or possession for

sale. He insists that the instructions here permitted his

conviction if the jury found simply that the marijuana was

not for his personal use, even though it may not have been

held for sale to others. This, he says, eliminated the es-

sential element of the greater crime, which is the intent

to sell to others, not simply that one has more of the sub-

stance than he himself may use.

There is considerable merit in this argument and if the

instructions were fairly open to the criticism that the jury

could have been confused or uncertain about the elements

of the crime, defendant would be entitled to a new trial.

A9

In considering this objection of course the instructions must

be read together and not considered piecemeal. State v.

Morelock, 164 N.W. 2d 819, 822 (Iowa 1969) and citations.

In both Instruction 6 and Instruction 8 possession for sale

was specifically made an element of the matters submitted

to the jury. Instruction 8, which is the instruction sub-

mitting the elements to be proven, clearly and unequivo-

cally required the jury to find possession was for sale to

others before a conviction could be returned on the more

serious charge. When explaining the necessity for such

a finding, the court specifically referred to Verdict Form

No. 1 as the form upon which such a finding should be

recorded. While it is true this form of verdict did not

include a reference to possession for sale to others, and

while we agree it would have been better had it done so,

there can be no doubt about the clear meaning and intent

of the instructions when Instruction 6 and Instruction 8

are related to the form of verdict returned by the jury.

We do nc: approve the form of jury verdict used under

these circumstances, nor do we feel that the statement

of issues was as clear to the jury as it might have been,

bat we should not reverse for such errors unless there is

reasonable basis for finding that the jury was confused or

that the instructions, when viewed as « whole, were so

contradictory that the jury may have followed a wrong

one instead of a proper one.

We have carefully reviewed all the instructions and we

can find no reversible error in the instructions as sub-

mitted. We therefore hold against defendants on this

assignment of error.

III. Defendant next complains there was error in the

admission of the testimony of the state narcotics agent.

The principal objection raised was that the evidence was

beyond the scope of the minutes of testimony attached

tothe information. Later an additional objection was added

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to part of the testimony on the ground that it was not

relevant or material.

Assuming the latter objection was sufficiently specific

to raise the issue, we believe the trial court was correct

in receiving it as relevant on the issue of defendant’s

intent to sell the marijuana in his possession. The testi-

mony objected to was based on the agent’s experience in

narcotics investigations and described in some detail the

manner in which marijuana is measured out and packaged

for resale purposes. From this description the jury could

properly find the n rijuana in defendant’s possession was

intended for sale.

On the original objection that the testimony went beyond

the minutes attached to the information, we believe our

prior decisions on this subject justified its admission.

See State v. Miller, 259 Iowa 188, 196, 142 N.W. 2d 394, _

399 (1966) and citations.

IV. One of the defendant’s principal assertions is that

section 204.18, The Code, 1966, is unconstitutional because

it required him to prove he did not come within one of the

exceptions of the statute under which possession of nar-

eotic drugs was not illegal.

Section 204.2 prohibits all possession of narcotic

drugs ‘‘except as authorized in this chapter.’’ Various

sections of chapter 204 provide circumstances under which

possession of narcotics is permissible. Then section 204.18

establishes the following rule on burden of proof:

‘‘In any complaint, information, or indictment, and

in any action or proceeding brought for the enforce-

ment of any provision of this chapter, it shall not

be necessary to negative any exception, excuse, proviso,

or exception, contained in this chapter, and the burden

of proof of any such exception, excuse, proviso, or

exemption, shall be upon the defendant.’’

re

All

It is the constitutionality of this section which is attacked

by defendant, who argues the State should have been

compelled to establish beyond a reasonable doubt that de-

fendant did not come within any of the exceptions instead

of casting on him the burden to show he did.

We hold it was clearly the duty of defendant to prove he

was excused from complying with the prohibition of the

statute. If an exception is material in arriving at the

definition of the crime, it is generally held the State has

the burden of showing the exception does not apply because

it is then one of the essential elements of the offense.

However, where the exception merely furnishes an excuse

for what would otherwise be criminal conduct, the duty

devolves upon the defendant to bring himself within the

exculpatory provision. State v. Snyder, 244 Iowa 1244,

1249, 59 N.W. 2d 223, 226 ( 1953); State v. DeMarce, 237

Towa 648, 649-654, 23 N.W. 2d 441, 442-444 (1946) ; 1 Under-

hill on Criminal Evidence, Fifth Ed., sections 52, 53, pages

88-90; 22A, C.J.S., Criminal Law, section 571, page 315;

Stanley v. State (Ind. 1969), 245 N.E. 2d 149, 151; State

v. Kahler (Fla. 1970), 232 S. 24 166, 168; State v. Belanger

(Conn. 1961), 167 A. 2d 245, 248; State v. Rowe (Maine

1968), 238 A. 2d 217, 221; State v. Seng, 91 N.J. Sup. 50,

219 A. 2d 185, 186 ( 1966). See also Annotation at 153

ALR. 1249.

V. This brings us to defendant’s last and most serious

assignment of error in which he alleges the search warrant

under which the contraband drugs were seized was issued

without probable cause. His motion to suppress the evi-

dence on that ground was overruled. His later objections

to the introduction of the seized evidence met the same fate.

He urges this as a ground for reversing his conviction.

We relate the background facts leading up to the issu-

ance of the search warrant.

eae a a at Ca

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On December 20, 1968, a search warrant issued upon the

order of the Honorable William R. Eads, Judge of the Linn

County District Court, who found probable cause had been

shown for the immediate search of a man’s suitcase for

‘‘narcotic drugs, marijuana and prescription drugs.’’ The

order was based entirely upon the facts shown in a sworn

information filed by Calvin Trousdale, a Cedar Rapids

police officer, and George H. Mayer, a State Narcotics

Agent, who stated under oath substantially as follows:

That they had made a complete investigation into defend-

ant’s activities and knew all of the facts in the police file;

that they were aware of defendant’s suspicious actions

during the previous two weeks; that they had reliable in-

formation from a reliable informant who is a credible

resident of the state of Iowa that defendant has been selling

narcotic drugs and marijuana, and that defendant left

several days previous to the date of the application for

California to pick up a load of drugs; that during a flight

into Cedar Rapids defendant had offered to obtain drugs

for the airline stewardess; that defendant was arrested on

or about June 5, 1968, in California on a narcotics charge;

that an official from United Air Lines informed affiants that

defendant had offered to obtain narcotics for the stewardess

on his flight on December 19, 1968.

These were all the facts before Judge Eads at the time

the search warrant issued. We have reviewed the necessity

for showing probable cause before a search warrant may

issue in a number of recent cases. State v. Spier, 173 N.W.

2d 854 (Iowa 1970); State v. Salazar, 174 N.W. 2d 453

(Iowa 1970); State v. Jensen, 189 N.W. 2d 919 (Iowa

1971) and State v. McReynolds, opinion filed March 16,

1972.

Those cases contain our latest pronouncements on the

circumstances under which probable cause may be said to

exist for the issuance of a search warrant, both under

Ai3

Améndment 4 of the United States Constitution and under

section 8, Article I of our own. It is unnecessary to repeat

hete what was said there.

The standards established may be summarized as fol-

lows:

‘L. Search warrants may issue only on a showing of

probable cause under oath or affirmation.

2. In passing on the validity of a search warrant, a

reviewing court may consider only information brought to

the attention of the issuing officer.

_ 3. The issuing officer must make his own independent

determination of probable cause on the basis of facts

related to him and may not rely on mere conclusions recited

by the applicant.

Despite our repeated announcements that a search war-

rant may be issued only upon probable cause and only

when the issuing officer has sufficient facts before him to

make his own determination that it exists, those applying

for search warrants insist upon making only the barest

factual showing and upon reciting nothing more than their

own conclusions. In the case now before us, for instance,

except for the recitation that defendant had offered to

supply narcotics to the stewardess on the flight into Cedar

Rapids, we have no hesitancy in saying that probable

cause for the issuance of the warrant could not be found.

Nothing else appears except the conclusions of the police

officers, who asserted they had the defendant under sur-

veillance for several weeks and that his actions were

“suspicious.’’ This conclusion was entirely unsupported

by facts. They also stated they knew everything that was

in the police files; but the writ cannot issue on what they

secretly know. It can issue only on information com-

municated to the issuing officer who then makes his own

determination of probable cause. We meet this same

Al4

situation repeatedly despite the many times we have

pointed out what must be shown. The most dedicated and

diligent investigatory work is unavailing if the evidence

thereby uncovered cannot be used to secure a conviction.

The State came perilously close to such a fate here.

We sustain the issuance of the writ only because of the

factual recitation concerning the conduct of the defendant

on his flight to Cedar Rapids. We hold it is reasonable to

conclude that one traveling on an airliner who offers nar-

coties to the stewardess may have such narcotics on his

person or among his effects. Supported by the statements

of an official of the airlines this was sufficient to furnish

probable cause. On that basis, and on that basis alone,

we hold the search and resulting seizure were proper.

VI. We have considered each assignment of error re-

lied on for reversal. We hold the judgment of the trial

court was correct and should be affirmed.

AFFIRMED.

All Justices concur, except Rawlings, J., who dissents.

Al5

APPENDIX 0.

Exursrr ‘‘A’’,

In tHe Distaicr Court or Towa

In and for Linn County, Iowa

Strate or Iowa, 7

Plaintiff,

— Vol. 255

r Information for

Kevin Lyncu and a blue mans — —

suitcase,

Defendant. }

Stare or Iowa, ”

County or Lixn.

We, George H. Mayer, Calvin Trousdale, being first duly

sworn on oath states that he is a credible resident of Linn

County, Iowa, that he has good reason and probable cause

to believe and does believe, that certain personal property

described as follows: Narcotic drug, marijuana, and pre-

scription drugs

(a) has been illegally kept ; and/or

(b) has been used as a means of accomplishing a felony;

and/or

(c) is being used with intent to commit a public offense;

and/or

(d) held in violation of the laws of the State of Iowa the

following described premises, place, residence and or auto-

mobile: to wit; Chapter 155.26 and 204.2 of the 1966 Code

of Iowa. In a blue mans suitcase with claim check No.

823-451.

Al6

That the facts and circumstances which lead me to believe

that there is probable cause that a crime was committed

and that the above described premises, place, residence

and/or automobile should be searched are as follows: that

we have made the complete investigation into this matter

and know all of the facts in the Police File on this matter.

That we have been watching Kevin Lynch for the past

two weeks and have been aware of his suspicious actions

during that time period. That we have reliable informa-

tion from a reliable informant who is a credible resident

of the State of Iowa and he informs us that in the last 2

weeks Kevin Lynch has been selling narcotic drugs, and

marijuana and during this time period he has been high

on drugs himself. We are also informed from this same

person that Kevin Lynch left a few days ago to go to

California to pick up a load of drugs and that he was

arrested 12-19-1968 for intoxication in Linn Co., Iowa be-

cause he had urinated the seat of the airplane and during

that time offered to obtain drugs for the Stewardess. That -

to our best information this Kevin Lynch was arrested on

June 5, 1968 in California on a narcotic charge. That claim

No. 823-451 is a claim number for a suitcase for United

Airlines and said claim check is in the personal belongings

checked with Kevin Lynch’s personal belongings at the

Cedar Rapids Police Department when he was arrested on

the intoxication charge. That we know of our own per-

sonal knowledge that the claim check is in the personal pos-

session of Kevin Lynch, in his personal belongings in the

Cedar Rapids Police Department. An official from United

Airlines informed us that the defendant had urinated on

the airplane seat and had offered a stewardess narcotics.

Al7

Wuenerore, the undersigned applies to William R. Eads

a Judge of the District Court of Linn County, Iowa, for a

search warrant to be issued and the said suitcase be

searched for said property.

Grorce H. Mayer,

Catvin TRovspaze.

Subscribed and sworn to before me and in my presence

by said Calvin Trousdale and George H. Mayer this 20th

day of December, 1968.

(Illegible)

Notary Public, In and for

Linn County, Iowa

Instructions

“1. Either District, Municipal or Justice.

2. Either Iowa, Cedar Rapids, or name of Township.

3. Identify fully, that is, address of premises, apart-

ment number and garage, make, license number of auto,

name of the defendant.

4. Your name (make sure you have first-hand knowledge

of the facts).

5. Particularly describe the property you want to

obtain. List it in great detail—any money and how it’s

wrapped or marked. Give approximate length of tools,

describe color of any items. Give exact address of the

premises, apartment number, or the type of building which

you want to search on the property.

6. Cross out the lines which don’t apply.

7. Particularly describe the premises (address), apart-

ment number and garage, the year, make, model and license

number of the automobile.

8. Set out as many facts as possible on which the appli-

eation is made. Include any knowledge of an informant.

Se a LEGER OLED Mi rae 4 R Be at oi bi

A18

9. Name of the Judge.

10. Either District, Municipal or Justice.

11. Describe the property to be searched.

12. Have Someone Sign the Application Who Knows

the Facts.

Grounds for Search Warrant (Section 751.3)

It may be issued upon any of the following grounds:

1. For property which has been stolen or embezzled.

2. For property which has been used as a means or as

one of the means of committing or of accomplishing the

commission of a felony.

3. For property which is in the possession of a person

with the intent to use it as a means of committing a public

offense, or which has been delivered by such person to

another for the purpose of concealing it.

4. For property which is being used or employed in

carrying on, keeping or maintaining a place of any de-

scription for the purpose of gambling for money or for

any other thing of value.

5. For personal property of the character enumerated

in Section 726.4.

6. For property of the character specifically enumerated

in Section 726.5.

7. For cigarettes and cigarette papers, and the con-

tainers thereof received, possessed, kept, stored, sold or

given away in violation of any law of this state, or with

intent to violate any such law.

8. For intoxicating liquors, including alcohol, brandy,

whiskey, rum, gin, beer, ale, porter, wine, spirituous, vinous,

and malt liquors, manufactured, sold, kept for sale, owned

or possessed in violation of any law of this state, including

Al9

all instrumentalities, containers, equipment, articles or

things used or employed or intended to be used or employed

in effecting said unlawful acts or any of them.

9. For any other property which is legally subject to a

search warrant by any law of this state.

Information for Search Warrant

Section 751.4 Information. Any credible resident of this

state may make application for the issuance of a search

warrant by filing before any magistrate except a judge of

the supreme court, a written information, supported by his

oath or affirmation, and alleging therein the existence of

any ground or grounds specified in this chapter as ground

for the issuance of a search warrant and that he believes

and has substantial reason to believe that said ground or

grounds exist in fact. Said information shall describe with

reasonable certainty the person or premises, or both, to be

searched, the property to be seized, and the person, if

known, in possession of said premises and property.

Exurr “B"’.

Ix rae Derecr Cover or lows

In and for Linn County, lowa

Srate or Lowa, al )

vs.

Kevrx Lyece and a blue man’s Search Warrant

suitcase,

1968.

je/ Waasam BR. Eaves,

12:10 P.M.

Judge of the District Court

of Towa.

Return of Service

Strate or Iowa

Laxx Courrr } os.

I, Charles H. Smith, being a peace officer in and for

Linn , State of Iowa, hereby certify that the within

search warrant came into my hands on the 20th day of

December, A. D. 1968, and on the 22nd day of December,

A. D,, 1968. I executed said warrant by making a search

of the premises therein described and found on the premises

therein designated the following property, to-wit: (State

kind and quantity): one small plastic bag containing 14 red

capsules with lettering Lilly 140 and three orange capsules

wrapped in foil. One white paper bag with the label Arm-

strongs containing eight balls of a brown pasty substance.

One brown bottle labeled MDX formula 42 liver and iron

tablets containing 93 green capsules. One brown bottle

labeled Gem vitamins C ascorbic acid containing 4 white

tablets. (cont. on attached sheet.)

which said property I seized by virtue of the within war-

rant and which I now hold subject to further orders of the

court.

I have further executed the within warrant by giving a

copy thereof, together with a receipt for the property taken

te Billie Dean Carson and Kevin Joseph Lynch.

No person having been found on the within premises, I

have left « copy of the within warrant and a receipt for

the property taken in the place where the property taken

was found.

I, the officer by whom the annexed warrants was executed,

do certify that the above inventory contains a true and

detailed account of the property taken by me on the war-

rant, and was made publicly and in the presence of the