State v. Donnell

Monday . . . But those say Monday the whole of is to words do not “excluded,” as defendant would read day of the last is normal-

them. The whole included, holiday, it since

ly unless is a parts ordinarily

law does take notice days. Haynes, Thrasher v. Iowa (quoting general rule). 264 N.W. Monday timely is for a trial

Thus service on

beginning Friday. on So service anytime is trial Wednesday timely begin- for a

ning anytime Monday. probably placed “the legislature 4.1(22)

whole of” in for the situation in day,

which an act to be done on that last is appearance an an action. entry

such as desired to clear legislature make Monday is day

that all to be included —the enter Monday ap- has all of

pearance. Pope, Bruce v. 179 Iowa See ‍​​​‌​​‌​​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌​​​​‌‌​‌‍797. 162 N.W. not be excluded from the

Monday should

four-day 780.10. computation under §

would affirm on basis. J.,

REYNOLDSON, joins special con-

currence. Iowa, Appellee,

STATE

Jerry DONNELL, Appellant. Dee

No. 58328.

Supreme Court of Iowa.

March Swanson, Winston,

Robert S. Sehroe- Reuber, der & Mason City, appellant. for Turner, Gen., Richard C. Atty. William D. Seherle, Gen., Atty. Asst. Clayton and L. Worrison, County Atty., appellee. REYNOLDSON, Justice. (cid:127) Defendant, appealing from his conviction violating 712.1, (receiving § Code property) stolen relating raises issues to an investigatory stop of a van in which he was passenger, trial, 795.2, speedy Code.

Evidence was at pre-trial introduced suppression hearing trial of this which support case would fac- tual statement. early morning

On the of November pas- 1974 defendant Donnell was the sole senger by in a red van driven his roommatе Uglem. cruising This vehicle had been seen very slowly through three resi- Clear Lake apart dential areas several blocks before its city patrolman at driver was halted 2:00 A. M.

The evidence disclosed Clear Lake is a city many vacant homes in the winter prior year months. Over the residential totaled in the hun- be when he break-ins had “almost saw and seized the roach Large quantities triggered furniture dreds.” which all subsequent events. See ap- items had been stolen bulky State v. Cooley, 229 N.W.2d (Iowa away 1975) van or truck. parently carried and citations. Nuehring made decision In Cooley, supra, we adopted the the

halt the He was motivated van. principle Terry Ohio, articulated v. 392 described, not by circumstances above 1, 22, 1868, 88 1880, U.S. S.Ct. 20 L.Ed.2d violation, mechanical defect or rou- traffic 889, (1968), 906-907 where the court noted 321.492, to invoke purpose The tine Code police “a inmay officer appropriate circum check oth- (permitting stops for license and and appropriate stances in an ap manner reasons). Nuehring a specified made er proach a purposes for investigat request back-up radio for assistance from ing possibly criminal behavior though even Garlock. officer prоbable there no is cause to make an ar rest.” approached the driver’s side Nuehring Circumstances an investigatory up stop to the window exist police the van. Garlock walked “where a officer observes recognized the unusual conduct passenger on the side and which leads him reasonably Garlock’s to conclude in light light experiences defendant. flash- of his ** a criminal light appeared activity may disclosed what to be be afoot Id., (marijuana butt) 30, 1884, the 392 cigarette “roach” U.S. at 88 S.Ct. at 20 at floor of the van at defendant’s feet. This L.Ed.2d 911. obviously

roach was hand-rolled distinc- The Fourth does Amendment paper, one twist- cigarette tive red with end require policeman a precise who lacks the end ed in a fashion and the other typical level of a necessary proba information step burned. Garlock asked to defendant simply ble cause arrest to shrug his shoul roach, picked up the car. He out of ders allow and a crime to occur. Adams v. marijuana had a characteristic confirmed it Williams, 143, 145, 1921, 407 92 U.S. S.Ct. odor, retrieved another and then from 1923, 612, (1972). 32 L.Ed.2d 616 Nor does open ashtray. ordinarily prohibit, that amendment as an was and Defendаnt searched found to “search”, illegal plain a .view observation carrying amphetamine 51 “white cross” tab- police position made officer from a being lets. He handcuffed resisted where the officer is entitled to be. United roaches which were in Garlock’s hand were Johnson, 674, (8 v. States 506 F.2d 675 Cir. destroyed resulting scuffle. At 1974), denied, 917, cert. 421 95 U.S. S.Ct. booking police station search credit cаrds 1579, (1975). 43 L.Ed.2d 784 burglarized farm home stolen from were investigatory A vehicle stop comply found in defendant’s wallet. led to This ing the Terry standards may include apartment warrant of his where search observing anything to be seen from outside household ‍​​​‌​​‌​​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌​​​​‌‌​‌‍items also stolen from the farm Hernandez, the vehicle. United States v. personalty house were seized. This formed 614, (7 1973), denied, 486 F.2d 616 Cir. cert. ultimate the basis for defendant’s convic- 959, 1488, 415 94 U.S. S.Ct. 39 L.Ed.2d 574 tion. (1974). “plain appli is view” doctrine suppress I. Defendant filed a motion though cable even the contents of the vehi van, his any evidence removed from may cle not have been visible without apartment, or person, his wallet assert- flashlight use of a or artificial illumi probable no cause to an ing there was make Johnson, supra, nation. United v. States van in he investigatory stop of the which at 506 F.2d riding. was Defendant identifies .thus issue, stop determining fighting justified for if this was whether the court right suppress place overruling then was in a had a erred in the motion to Garlock 578 (H)The type ad of vehicle may peculiarly consider not evidence

we suppress adapted in the motion to but transport concealed duced Up United States v. testimony. bulky later trial household furniture thegrоve, 682, 684, (6 equipment type 504 F.2d n. 4 Cir. being stolen. States, DiBella v. United 1974); 369 see carefully have compared We the circum- 654, 659, 121, 129, 82 S.Ct. 7 L.Ed.2d U.S. stances disclosed above with those in United States, v. United Carroll 614, (1962); v. Harflinger, supra, States Carpenter 45 S.Ct. 69 L.Ed. Sigler, v. (8 1969) F.2d 169 (stops Cir. (1925). valid) held and with those in United States Nicholas, (8 1971), 448 F.2d 622 Cir. our examination of reason Nor does Cooley, supra (stops unjustified). held Al- investigatory stop for an able cause еnd though close, question is we find the subjective the officer’s reasons. The judice facts sub analogous to those in most policeman’s subjective is not the theo test Carpenter Sigler, supra. v. We hold this ry, but whether record discloses articu- investigatory stop was based reasona- objective facts were available lable to the grounds. ble United v. justify States stop. officer to right Trial court was in overruling Vital-Padilla, 641, (9 500 644 F.2d Cir. motion to suppress. States, White v. United 1974); 250, 448 F.2d 1971), denied, 926, (8 252 Cir. cert. 405 U.S. II. Defendant next asserts we must re- 974, United (1972); 92 30 L.Ed.2d 798 S.Ct. verse because he provided was not a trial Harflinger, v. 928, (8 States 436 F.2d 933 provided 795.2, within the time an issue § denied, 973, 1970), cert. 402 Cir. U.S. 91 raised below motion to dismiss. 1660, (1971); see Terry, 29 L.Ed.2d 137 S.Ct. county attorney’s The information charg- 21-22, 1880, at supra, 392 U.S. 88 S.Ct. at 20 ing defendánt with this crime was filed 906; Cooley, supra, L.Ed.2d at 229 N.W.2d 5, February 18, 1975. February 1975, a (“[W]e objectively at 759 must determine assignment trial made, was tentatively set- * * * whether of said vehicle ting trial for any of the 24, weeks of March circumstances”). was reasonable under the April April 1 or 7. February de- fendant filed the suppress motion to re- Applying principles, the above ferred to in Hearing division I. on this following information was available to offi 6, motion was had March 1975. An exten- investigatory stop: cers invоlved in this eight-page sive ruling April 1, was filed (A) This van was seen in a Iowa small 1975, Tuesday. city. The parties agree the day first court fol- (B) city policeman recognize did not lowing expiration 60-day 795.2 § van, operator, passen- or the period Monday, April 7. The following ger prior stop. to the day, April 8 defendant filed his motion to subjected (C) Clear Lake had been to a dismiss. This motion was heard and ovеr- burglaries. wave home crime April ruled on 11. Defendant’s trial was (D) Many Lake homes were vacant Clear for, commenced, April scheduled during the winter months. these dismissal hearings at the (E) being The van was driven slow- trial court level the burden is on the State ly- good to show In State v. delay. cause for (F) sepa- officers observed it in three Shockey, 146, (Iowa 214 1974) N.W.2d 150 rate residential areas. we said faсtors to be considered were those M., Wingo, delineated in Barker v. (G) This at 2:00 A. a time 514, occurred 2182, persons when most in a residential 92 (1972): length S.Ct. 33 L.Ed.2d 101 asleep. delay, be delay, area would ‍​​​‌​​‌​​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌​​​​‌‌​‌‍reason for the defendant’s

579 prej- speedy right, period trial vides delay resulting assertion from resulting delay. from the proceedings concerning udice to defendant the defend ant, including hearings pre-trial motiоns, ruling level review of the At this our should in computing excluded time for is To secure a on this issue not de novo. trial. While such a rule probably should show trial court reversal defendant must inflexibly not be applied, it has merit in this State v. Gra abused its limited discretion. situation. The days nineteen consumed by 869, (Iowa 1975); 872 State dy, 231 N.W.2d defendant in preparing filing his mo 94, Albertsen, (Iowa 1975). v. 228 N.W.2d 98 ignored tion cannot be when examining the above сriteria in Turning the four lesser time which elapsed interval action, we simi- weighing court’s note trial expiration of 60-day period. As bearing short, reject- although lar have been delays, point, Truax, on this see' State v. 232 furnishing “good where unac- ed as cause” (Iowa 1975); N.W.2d 861 v. State Grady, excuse. companied reasonable See State (Iowa 231 1975); N.W.2d 869 State v. Al Sassman, (Iowa v. 226 N.W.2d 809 bertsen, supra; v. Lyles, supra; Stаte cf. 1975); Hines, v. 225 N.W.2d State v. Wright, State (Iowa 1975). 234 N.W.2d 99 Nelson, (Iowa 1975); State N.W.2d Turning factor, to the third defendant, 1974). Still, (Iowa fact although represented by counsel, failed to period delay beyond 795.2 incurred speedy factor, demand a trial. On this the lengthy gives here is it in weight less are tipped scales in the State’s favor. See the determination to be ultimate made. v. Lyles, State supra, N.W.2d at 126. Delay attributable to defendant Finally, argues defendant prejudice was may statutory good pre constitute cause established because his incarceration. venting carrying the State from out its the unclear, While record is theré is an obligation bring to him to trial. v. State indication his incarceration was not due (Iowa 1975). Lyles, 225 N.W.2d solely to charge. this Defendant was ini- this case the defendant waited nineteen placed tially county jail. in the girl- His the days charge after was filed to make a posted January friend bail. In he was suppress. appellate motion to His brief may reincarcerated. This have on been a evidentiary the points hearing out on charge violating probation granted his hours, only motion two consumed drug prior charge conviction or because court days which trial toоk 26 to file bail money friend wanted the returned. ruling. point by But raised the motion pending The record also reflects two other close, I suppress very to as division one charges, which arose out of this inci- eight- may hereof indicate. Trial court’s involving dent and another a concealed page ruling reflects serious concentration arising weapon during offense his confine- facts, on the considerable research in court, Certainly ment. the trial examining law, and reflective consideration of the prejudice by the issue reason of incarcer- merits. during ation this charge the short delay While the time consumed trial court period, could have found defendant would been might been inexcusable had it have liberty not have been at event. issue, with this confronted a rоutine or had it, been are we matter before we Under record hold it was not an imply reluctant court cannot take to trial abuse discretion trial to court find necessary the time properly study good to established State cause going rule to the bringing on defense motion to delay defendant trial. heart of a criminal case. find no reversible We error. 2.3(a), Relating ABA Standard Standards Trial, 1968, pro- Draft Speedy Approved to AFFIRMED. J., LeGRAND, REES,

MOORE, See also v. Cooley, C. State 229 N.W.2d JJ., HARRIS, (Iowa 1975). concur. 756 UHLENHOPP Unquestionably, Nuehring’s stop McCORMICK,JJ., dis- RAWLINGS of the instantly involved red van constitut- sent. ed a seizure of the within the con- MASON, J., part. takes no text of the Fourth Amendment. See State Cooley, 229 N.W.2d at 759. RAWLINGS, (dissenting). Justice Nuehring, acting submit Officer alone agree reasoning I am unable to with making the initial and stop determinative major- in Division I of the or result reached person, and seizure of the did so absent ity opinion, respectfully therefore dissent. reasonably articulated cause to believe Terry the court declared in Significantly, activity part criminal on the of the .van Ohio, 1, 21-22, v. State of 88 S.Ct. occupants was then afoot. More precisely, (1968): 20 L.Ed.2d 889 disclosed, infra, as the officer acted nothing totally more than particular inadequate suspi- justifying intrusion “[I]n conjecture. cion and point Cooley, must See State v. police officer be able which, 229 N.W.2d at 760-761. facts taken specific and articulable with rational inferences from together It is to me evident the court imper- below facts, reasonably warrant that in- those buttressed, missibly and now the majority trusion. The scheme of Fourth attempts likewise to bоlster Officer Nuehr- meaningful only Amendment becomes ing’s inadequate articulated cause for point at some when it is assured that the vehicle reference to facts charged enforcing conduct of those not shown to have been known to him when subjected to the more the laws can stopped “drag-net” the van. Such a detached, scrutiny judge of a who neutral rationale will оnly serve to create a sea of of a evaluate the reasonableness must courts, uncertainty in futuro for attorneys light seizure in of the particular search or peace officers. making circumstances. And in particular support of the foregoing I refer first imperative it is that the that assessment portions to these relevant of the record objective judged against facts be an stan- regarding before us Nuehring’s Officer tes- would the facts available to the dard: timony in course of hearing the on defend- moment of the or officer at the seizure pretrial ant’s suppression mqtion: the search ‘warrant a man of reasonable caution in the belief’ that the action tak- “The sole reason Officer Nuehring appropriate? Any- en stopped wаs the vehicle was because it was [Citations]. thing upon traveling slowly less would invite intrusions in the Mars Hill Drive constitutionally guaranteed rights based Residential Area. stopped After he the nothing vehicle, more substantial than inartic- he going try was to to find from hunches, ulate a why they result this Court has the driver cruising were the consistently refused to sanction. residential areas. He asked the driver of [Cita- simple “'good And bаsically just faith on the the vehicle what he was tions]. part arresting doing, of the officer cruising is not the residential areas that * * * enough.” subjective good night. If hour of the He asked the driver to test, protections produce faith alone were the the only. driver’s license That the there evapo- nothing wrong of Fourth Amendment would was with the driv- rate, people and the would be “secure in er’s liсense and he it. returned That he houses, effects”, persons, their discovered no papers and contraband in the vehicle only police.’ in the discretion the nor did he any ever observe contraband in [Ci- (emphasis supplied). the vehicle. tation].” the dead-end street in for the the Mars area Court directed the counsel Hill “The the he asked driver of Officers the van to why to find out thе Defendant license, produce his driver’s that that there and at grounds the vehicle on ‍​​​‌​​‌​​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌​​​​‌‌​‌‍stopped see any time did not the Court that contraband in showing been no to the had He had vehicle. not received dis- stop any the any probable was cause there patch any criminal activities the fact in The Court stated that vehicle. area; had not any warning he received driving slowly the vehicle was was that peace officers to be on look- could a crime and that the driver vehicle, out for such but there because district all around in the residential cruise many area, had been break-ins in he to. he wanted thought perhaps a burglary might in- response made inquiry “In volved. He found good the vehicle in Court, that Nuehring Officer testified operating order and he had known оf prior no from the had information he operating other violators in the resort vehicle had dispatcher that this radio van; however, area red in a on direct any criminal suspected of use in been examination, his purpose in activity. prior He had no information vehicle was to find out going what was was any source that this vehicle from stop on. He did not the vehicle to obtain From his activity. criminal used license, view of Defendant’s driver’s the vehicle that observation to be appeared incidental. He burglary element thought possibly stop did not the vehicle for a driver’s the vehicle involved the basis that was license check. The Court finds that none areas in a just cruising residential was provisions 321:492were applica- hour. late There was no ble. notice from other “ * * * Nuehring testified Officer authorities, and he suspicious was because than the vehicle which the further was driving the vehicle slow and there riding partic- was not defendant burglaries had been the area with a operated by red van known law ular some van, although this Defendant was not the at the lake. violators operator sup- of the van.” (emphasis examination, “On re-direct plied). Nuehring stopped testified that he showing submit made which area, in the Hill which vehicle Mars Drive must act falls far of a court short Queen goes by Dairy street that is a moment-of-action reasonable cause School, Elementary very and Sunset vehicle stopping a on one of our public street curvy parking, which allows so that intrusion, highways. wrongful This here if be difficult to it would travel fast sanctioned, surely will open the door any that street under circumstances. Of- capricious indiscriminate and Nuehring purpose testified his ficer every legiti- engaged automobile stopping the vehicle to find out was by peace acting mate affairs officers on, going they were what what do- whim, than or nothing fancy, caprice more purpose and incidental to that ing, suspicion. I Car- This cannot sаnction. See produce the driver to license by asked States, 153-154, 132, roll v. United 267 U.S. sup- of identification.” way (emphasis (1925). 69 S.Ct. L.Ed. 543 See plied). Ohio, 89, 97, also Beck v. State of Sullivan, (1946). in the same 85 S.Ct. Judge Further vein L.Ed.2d 142 motion, ruling specifical- on the aforesaid the foregoing, Mindful of hold would ly found: Nuehring and the latér arriving Officer case, Nuehr- particular “In place Garlock were not in a they where had first saw the vehiclе North Ninth ing right be after the van been had Street, again stopped. Consequently, then he saw the vehicle on nothing by seen by a vehicle or obtained search them in the occupants

of same or of the constitutional applicable withstand

can

mandates.

By any subsequent token the same trig- fatally were tainted

searches stop. vehicle

gering “poisoned”

I would reverse.

McCORMICK, J., joins this Dissent. Marilyn In re Pettit, Bloomfield, the MARRIAGE OF L. Harris & appel- KUNZMAN and William O. lant.

Kunzman. Ball, Bloomfield, Vern M. appellee. Upon petition Marilyn L. KUNZ

MAN, Appellee, concerning William REYNOLDSON, J., Heard Acting C. KUNZMAN, Appellant.

O . RAWLINGS, LeGRAND, UHLEN- HOPP, McCORMICK, JJ.

No. 2-57997. Supreme Court of Iowa. UHLENHOPP, Justice. March 1976. This de appeal novo involves the proprie-

ty of terms of a decree dissolving the mar- riage Marilyn of William O. and L. Kunz- man. parties were married in 1955 when

William was 26 and Marilyn was 22. Three them, children were born to of whom two are now adults. At the beginning of the marriage, $18,- William ‍​​​‌​​‌​​‌‌​​‌‌​​‌‌‌‌‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌​​​​‌‌​‌‍had assets of about Marilyn’s financial assets were negli- time, gible at thаt but she received a small inheritance from her mother during the marriage. William had farming experience Marilyn year had worked a as a beauti- cian. William is the elderly child of parents nearby who own a farm of 240 prospects acres. William’s for inheritance appear good, thus Marilyn’s to be while prospects for further inheritance are nil. during marriage, William farmed Marilyn engaged while rearing, child

Case Details

Case Name: State v. Donnell

Court Name: Supreme Court of Iowa

Date Published: Mar 17, 1976

Citation: 239 N.W.2d 575

Docket Number: 58328

Court Abbreviation: Iowa