State v. Doran
563 N.W.2d 620
Iowa
1997
Check Treatment

*1 it not gov- argument appeal, this has does weapon and its owner and some notice of the weakening by focusing on accordingly. opportuni- justify the statute No such ern oneself considering ty self-preservation state of mind when for cautious behavior or defendant’s encountering proof public a bearer exists of of concealment. Defendant’s for one See, e.g., Ogata, v. weapon. policy would toward concealed be better directed (1977); P.2d Haw. the intent element the crime as a whole of 58. 8,§ Weapons & at 12 Am.Jur.2d Firearms focusing rather than on the element of protec- that the intended We believe cealment.3 by apply- tion of furthered the statute best arguments present- We have considered all ing objective determining test convic- ed and conclude that the of crime. concealment element of the Other tion should be affirmed. objective applied courts that have stan- AFFIRMED. if weapon dard concealed have found ordinary by it is not observa- “discernible State, 262, 220 Shipley

tion.” v. 243 Md. (1966); Purlee,

A.2d (Mo.1992).

S.W.2d As court recognized,

Purlee simply weapon] not concealed because

[a single vantage is not discernible from clearly from point if it is discernible other Iowa, Appellee, STATE concealed, however, positions. It only par- from where it is discernible one vantage point. ticular DORAN, Appellant. Allen Duane Purlee, at 590. With reference 839 S.W.2d No. 96-437. vehicles, weapons contained in better is considered from rule is that concealment Supreme of Iowa. Court approaching vantage point one 590-91 n. 4. From this vehicle. Id. at May 1997. not if a

spective, it should matter defendant weapon, for not to conceal a some-

did intend make thoughts

one’s innocent do hid- any more weapon

den visible. us, we suffi the facts before find

On defen

cient evidence concealment. floor of van

dant’s machete was on the would have to enter

between two seats. One front seat see peer

the van and over the trier of fact could

the machete. A rational by machete not discernible

find that the

ordinary thus and was concealed. observation argues approach we

Defendant sug- He

adopt will lead to absurd results. that, every weapon nearly car-

gests because ordinary is not visible

ried a vehicle

observation, in the criminali- this will result Although totally innocent conduct.

zation of Alexander, 71, 72- argument occupant, State v. 322 N.W.2d appears would have 3. that such an 1982); reject prior (Iowa plea specific that we now our a intent is not an include crime, danger- going with armed conclusions State v. David element of concealment contemplates keep- weapon 1974). vehicle son, ous ing in a weapon place at a accessible vehicle *2 CARTER, Justice.

Defendant, Doran, appeals from Duane his conviction, trial, jury posses- following a for marijuana in of Iowa sion of violation Code 124.401(3) (1995). contends He overruling his the district court erred mo- suppress tion to evidence obtained from a reviewing person. search of After his considering arguments and record parties, we affirm the of the dis- trict court. operating motorcycle

Defendant was his stopped by police he was officer when for having taillights. After headlights no or motorcycle approached stopped, the officer illegal defendant and confiscated sheathed in plain knife that affixed to his belt was began view. The then officer write motorcycle’s lack of proper citation for the response lighting. doing so While was motorcycle’s received radio check of the registration. response That revealed that by the vehicle defendant. was not owned information, Upon receiving that the officer person. searched the bike and defendant’s pocket chaps In a located on leather worn defendant, cellophane cigarette package containing marijuana discovered. was posses- for

Defendant was then arrested substance, taken to sion of controlled citation, station, and issued ultimate- appear. Shortly ly promise released on a thereafter, realized that he had the officer completed for waiting the citation headlight taillight violations. That cita- and completed was and delivered defen- following day. dant trial, In filed advance of defendant mo- suppress, asserting tion to illegal search of because it was exigent circum- lacked cause or Defender, Gallo, Appellate Del Linda addition, In the defendant main- stances. Christopher and Annette L. Hitchcock if, suppress in his as tained motion Cooklin, Appellate Defend- Assistant State contended, the search autho- ers, appellant. for in lieu of arrest rized as incident to a citation provisions Miller, General, under the of Iowa Code section Attorney Ann Thomas J. (1) 805.1(4), General, was not suffi- Brenden, Attorney E. Assistant ciently contemporaneous with the issuance of County DeTaeye, Attorney, James authority of that Scheetz, the citation to invoke the County Attorney, Assistant James statute, application of the statute appellee. and Fourteenth would violate his Fourth rights under the Federal Consti- Amendment authority to conduct an other- corresponding guarantees under tution and search). Constitution. wise lawful 8 of the Iowa Becker, N.W.2d at 607. guilty jury to be as found defendant conviction, charged. Following he was fined conclude that Becker and subse We appeals, contending that now He $350. *3 court, quent particularly of this decisions upon lack of invalid based the search was (Iowa 1996), Meyer, 543 N.W.2d State v. 876 circumstances; exigent probable cause or (Iowa Hofmann, 767 537 N.W.2d State provided by any for a search authorization — denied, U.S.-, 1995), 116 cert. S.Ct. 805.1(4) apply not because the did (1996), 2528, that L.Ed.2d 1052 establish contemporaneously search not made was doctrine incident to an arrest” the “search citation; and if the of the issuance with jurisprudence applied in Fourth Amendment 805.1(4) case, is uncon- applied in this legal provide that dependent' on facts is violating Fourth defendant’s stitutional as making a custodial arrest rather basis for rights the Amendment under and Fourteenth in act of arrest itself. As we stated than the corresponding Federal Constitution Meyer: article-I, section 8 of the protections under A incident to lawful arrest search Iowa Constitution. arresting if officer had an legal even argument concedes that The State’s for the arrest or had no ulterior motive person must challenged of defendant’s search probable to conduct the independent cause all, inci- upheld, if at under the “search be adopted objective or have search. We as extended to dent to an arrest” doctrine arresting offi- “could” assessment of the of arrest under section citations in lieu long making in the arrest “so cer’s conduct 805.1(4). this statute was asserts legally permitted the officer is and ob- as pres- trial court in the validly applied so, jectively an arrest authorized to do justification legal for the provide ent case to constitutional.” analysis, the challenged this search. Under Meyer, (quoting at Hof only probable cause urges, the 770) (citations mann, at omit 537 N.W.2d is whether there was that need be considered ted). equipment probable cause to believe vehicle point sharply in the The same made provide to a basis for a violation existed so as concurring opinion of in Si Justice Harlan charge. conten- on that This custodial arrest 40, 1889, York, v. New 392 U.S. 88 S.Ct. bron expressed by support in the views tion finds (1968), L.Ed.2d he observed: which Becker, 458 N.W.2d 604 court in State v. course, the fruits of a search Of (Iowa 1990). observed: In that case we justify ah to it is be used to arrest [Pennsylvania v. pronouncements The incident, probable but this means 330, Mimms, 106, 110, 98 S.Ct. 434 U.S. precede to- arrest must the search. cause (1977),] 331,- 336-37 prosecution If shows cause to safety cerning enhancement prior person, a man’s arrest to search of of action which were within the context met its total burden. There is no has known to might against driver be taken may validly say, in which a defendant case the traffic laws. have violated the officer to “Although right the officer had a to arrest is, many position A in that at the moment when he seized me and me Iowa, subject states, technically including my person, the search is invalid searched Iowa Code full arrest. See to he did not in fact arrest me until because 805.1(6)(1989). the officer § To the extent afterwards.” intru- temporarily pursue a to lesser elects Sibron, 392 U.S. 88 S.Ct. sion, condition that right to he has at 943. aspects of detention and on certain election language in Although some to which are conducive (1989) Cook, 1995), sug § safety. Iowa Code re (issuance the “search incident” doctrine gests or in in lieu of arrest of citation an actual arrest or cita- quires that there be custody does not affect lieu of continued right interest that sustains the contemporaneous grounds with societal arrest, agencies any partic- law enforcement make not now believe we do delay weigh heavily in searches incident to was revealed as period ular should California, analysis. If follows Chimel v. the officer is constitutional (1969): objectively 89 S.Ct. 23 L.Ed.2d 685 legally permitted and authorized arrest, is, for he that reason made, make an arrest it is When reasonable alone, make authorized to the search. also arresting for the officer to search the Here, clearly provided objective the facts any weap- to remove son arrested order grounds equipment on the violation for arrest might ons that latter seek use in 805.1(6). pursuant to section escape. order resist arrest or effect safety might Otherwise the officer’s well court has determined that a com One arrest itself endangered, and the frus- *4 plete charge the of arrest on absence trated. provided the initial grounds stop for does not Chimel, 762-63, 2040, 395 89 S.Ct. at U.S. at Rossi, People In the search. v. invalidate pro- 23 L.Ed.2d at 694. Consistent with this 1069, 291, Ill.App.3d 102 58 Ill.Dec. 430 Becker, nouncement, recognized in we 458 (1981), stopped a defendant N.E.2d 233 607, an N.W.2d at that because officer has taillight for a violation. A of search his grounds for a full custodial arrest viola- disclosed controlled automobile the provi- tion of the traffic laws based on discussing In the constitutionali substances. 805.1(6) of the “[t]o sions section extent the search, ty appellate of the court stated: the temporarily pursue a officer elects to lesser conclude that the search of the defen [W]e intrusion, right to condition he has validly pursuant dant ... was made to the aspects election on of detention and certain probable cause ar existence of for an to the search which are conducive they rest. ... The testified that safety.” reject We defendant’s contention attorney and the assistant state’s chose not recognized authority to search charge to the defendant with those lesser 805.1(4) beyond that extends which is light discovery of the of the offenses permitted the Fourth under Amendment. possession serious offense of of more prompt The same us to considerations [Tjhe fact that PCP.... the arrest of reject reject that contention cause us to place defendant did not take before challenge accompanying constitutional under original for the of search and was not section 8 of the Iowa Constitution. of does not vitiate existence fenses presented have considered all issues We for the search incident to cause of the dis- and conclude that arrest. trict court should be affirmed. Rossi, 1073, Ill.App.3d at Ill.Dec. at 102 58 AFFIRMED. 294, find 430 N.E.2d at 236. We no merit delay that the in issu- defendant’s contention NEUMAN, J., justices except All concur equipment ance citation for the viola- of the LAVORATO, SNELL, TERNUS, search tion of his rendered JJ. son invalid. NEUMAN, (dissenting). Justice reject defendant’s conten alsoWe Although respectfully the ma- I dissent. authority grant of to search tion that authority jority for the persuasive cites 805.1(4) beyond extends contained in section traveling public’s steady erosion under the Fourth permitted that which is I protections, remain un- Fourth Amendment makes constitution Amendment. One who 805.1(4) permits willing to believe section heavy bears bur challenge al statute to issuance of routine traf- search incident stat person must establish the den. That of rea- fic citation some consideration without invalidity beyond a reasonable doubt. ute’s sonableness. State, 315, 320 Saadiq v. Henderson, 404, beyond 1986); argument that inci- 269 It is search (Iowa 1978). constitutes an ex- dent however, Sibron, ception recognized that to the Fourth Amendment’s warrant the consti very tutional reasonableness of the statute could requirement; circumstances sur- Id. not be decided the abstract. rounding arrest make it a “reasonable” (Harlan, J., at 939 S.Ct. at search that amendment. under United Indeed, concurring). majonty in Sibron Robinson, 218, 235, States validity “The a war stated: constitutional 467, 477, 427, 440-41 S.Ct. 38 L.Ed.2d preeminently rantless search the sort courts What less clear whether are free question can be decided in the case-by-case to abandon the venerable deter- concrete factual context of individual mination of reasonableness when circum- case.” Id. at S.Ct. stance other than a custodial arrest. involves at 932. id. n. at 488 n. at 236 S.Ct. view, my In (declining n. 6 the reasonableness of a search L.Ed.2d at 441 address law gathered incident to citation can no more be where, governing citation search incident to from the text than could full-custody officer arrest of traffic vio- made Terry-type the reasonableness of a lator). breach, majority jumps into the from the statute discussed Sec- Sibron. any invalidating Fourth Amendment chal- 805.1(4) grants authority officers the lenge to a citation a search incident to on the (Em- conduct “an otherwise search.” subjected lawful ground the officer could have added.) phasis Because the search-incident- so, doing detainee full custodial In arrest. *5 exception articulated in to-arrest Chimel expedience I believe court mistakes reasonableness, grounded I on believe the principle. permitted by “lawful” search Robinson, opinion permitting the seminal must likewise be defined that standard. only a search of an arrestee when traffic stops perhaps Certain traffic even the one — violated, grounded offense has been its hold- may reasonably justify pro- at issue here — ing in to disarm the officer’s “need the sus- patdown subjecting search. But ev- tective custody pect to take him into and to order ery full traffic violator to a search on the preserve on his for later use evidence subject ground the officer could individu- at trial.” Id. at 94 S.Ct. view, not, my al to full arrest is reasonable 440; Farrell, see under Robinson or Chimel. (Iowa 1976) (paraphras- 329-30 is, indeed, expedient in an era of crime rationale). ing hardly could One Robinson power consciousness to enhance the quarrel reasoning in the context of with this want officers. We them on lookout for arrest. But I believe ratio- drug gun-toting dealers and terror- would-be grounding nale its when officer does loses sweep today’s opinion ists. But the will no more traffic ticket. In that than personal privacy also sacrifice of “soccer the traffic context the officer’s contact with driving moms” little too fast the ball Rarely will violator be minimal. there field, motoring along citizens without a senior preserve. Admittedly, be evidence to taillight, “good kids” fail and otherwise who stop may generate safety officer’s initial high swiftly enough. All to dim their beams justifying Terry-type investigative cerns subject will to search at the be whim is quite frisk. A full search another matter. officer, they into not because will taken they custody, but because could have been. justifies majority its blanket search- reasonable, view, my That rule by pointing a con- incident-to-citation letter, spirit, as violates the well as the York curring in Sibron v. New opinion Fourth Amendment section 8 of supporting facts reasoned that the the Iowa Constitution. itself —fur- cause to arrest —not the finding in every nish the reasonableness LAYORATO, TERNUS, JJ., SNELL case. Sibron was constitu- At issue join dissent. tionality purporting statute to au- of a state types of and seizures thorize searches certain York, Sibron v. New

without warrants. 1889, 1901, 40, 60, 88 S.Ct. Even the concurrence