# Petition for Writ of Certiorari — Lynch v. Iowa

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 409 U.S. 1116

## Text

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

o>
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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1610%3A1. Public record. Not legal advice.