*1 suffi- tice the Holmeses was served on jurisdiction
cient to establish so that fail-
Holmeses were default appear.
ure to
Id. at 35.
So, case, although specific in this used,
words of the rule not and the
specific requirements of the rule were not out, Dvorsky
followed or carried not
misled. The notice notified him that (defend),
did appear show cause judgment
default would taken and
would be rendered for the relief demanded. out specifically notice set conse-
quences appear. of his failure to that the
We hold notice was suffi jurisdiction
cient to confer of the court
upon Dvorsky, judgments
orders entered court were valid and
enforceable.
Having that the suffi- ruled notice was subject Dvorsky
cient to jurisdiction court,
of the is unnecessary it for us to filing,
consider Dvorsky’s the effect of case, protective a motion for order. holding
We make no as to whether act jurisdiction
submits to the so court
as previously to validate the orders entered
in the case.
We ruling, affirm the trial court’s over-
ruling appearance Dvorsky. special
AFFIRMED. Iowa, Plaintiff-Appellee,
STATE of LATHUM, Lee
Darrell
Defendant-Appellant.
No. 84-1124. Appeals
Court of of Iowa.
Nov. 1985.
Smith, the men had at the station been acting suspiciously. midnight,
Sometime after offi- Lathum cers observed defendant Darrell Nuehring walking and one David out of a general and restaurant back toward Testimony area of the tire store. indicates description. men fit that the two Smith’s officers, They stopped by who requested they present identification empty pockets; their and the identification response ques- was not returned. In to a tion Lathum indicated that he and Nuehr- ing together evening. had been all At point suspects some were told of the break-in and asked to the inves- Harrington, Appellate De- Charles Chief tigating officers to the scene of the crime. fender, Ap- Laughlin, and Michael J. Asst. Defender, defendant-appellant. for pellate store, Upon arrival at tire one officer compared Miller, Iowa, footprints found at the scene Atty. Thomas J. Gen. of McCown, Gen., with Lathum’s footwear and found them to Voyd Atty. Valencia Asst. Dillard, be similar. The officer told Lathum that County Atty., D. Linn and Denver him evidence linked to the crime and that plaintiff-appellee. for looking key he was for a that had been in SNELL, P.J., SCHLEGEL, Heard and register. the store cash Lathum admitted JJ., HAYDEN, and considered en banc. but key that he had thrown the in a snowbank across from a relative’s home. At that HAYDEN, Judge. time, arrested; formally both however, they of were not advised appeals Defendant from his conviction rights. and Nuehr- constitutional degree for in the second in viola- ing subsequently gas taken to the tion of Iowa Code section 713.3. He as- station where the attendant identified them serts certain evidence was obtained suspiciously persons as the who had acted rights. violation of his amendment evening. finger- earlier Lathum’s remand. We reverse and to match prints were later determined charged by Darrell Lee Lathum was trial those at of the crime. found scene second-degree burglary; information with Apparently, confessions oral and written tried the court. case was following were obtained from Lathum the presented Evidence established that the day. prose- some There is indication Rapids Tire Five Seasons Center Cedar cutor that defendant was advised of his January burglarized evening on the of rights constitutional at this time. How- 31, 1984. The owner of the store deter- ever, from the we are unable to determine key premises an mined that a to the presented actually if this oc- evidence unspecified tak- number coins had been curred, much less when. en; knowledge may had no have trial, sup- Upon sought Prior to broken into the store. arrival at scene, investigating Chapman press all evidence obtained after he was prose- Ray footprints initially stopped by the discovered inside and out- suppression premises. spoke side the cution did not resist of state- One Smith, store; tire nor did Timothy employee nearby ments made at the at a station, gas suppression resist the of the oral writ- who described two men he had evening. in the ten confessions. According seen earlier hearing, court overruled Lat- scene After a of the crime and later — and determined that the fol- hum’s motion Hayes Florida, station. See lowing was admissible: Lathum’s state- -, -, 84 L.Ed. Nuehring had been ment that he and to- 705, At that in the inves gether evening; concerning the all evidence tigation, police procedures were so intru *3 bootprints fingerprints; and the identi- sive panoply that the full of fourth amend Smith, gas Timothy fication made the rights triggered. essence, ment was In station attendant. legally transport order to Lathum to the scene, court and Lat- burglary
The case was tried to the the officers needed either ultimately ap- hum was convicted. He has probable cause to arrest or Lathum’s con pealed from this determination. sent. appeal claim on is that Defendant’s sole determined, theAs trial court there is the aforementioned evidence should have little, if any, probable evidence that cause suppressed been on fourth amendment fact, existed. In the officers admitted that grounds. Specifically, argued it is that they probable did not have cause to arrest stop from the time of the initial Lathum they stop. while were at the location of the Nuehring subjected to a level Thus, if the conduct of the officers is indistinguishable from a tradition- restraint to considered constitutionally permissi- be al arrest. Because the “arrest” occurred ble, voluntary it must be based the cause, probable maintains
without consent of the defendant. subsequent that all evidence was obtained illegally. carefully We have reviewed the analysis of record convinces us Our the simply record and cannot conclude that passes stop by that the initial con- burglary Lathum went to the scene of the stitutional muster. Rather, apparent it is that he submitting authority. was to a show of
An a reasonable has stopped by Lathum was uniformed officers suspicion and articulable of criminal activi him, empty who frisked asked him to his detain, ty may stop, briefly and frisk an license, pockets, took his driver’s and did investigation. purposes individual for — U.S. -, -, not return it. He was told of the Hensley, v. 105 State 675, 681, 604, (1985); go S.Ct. 83 L.Ed.2d 612 to to the scene of the crime and asked Ohio, 1, 29-30, 88 Terry v. 392 U.S. S.Ct. where he was detained. Lathum was nev 1868, 1884-85, 899, (1968). indeed, 911 go; er he was free to informed Chapman specifically testified that Officer case, present In the at the time the Fur were not free to leave. stopped, defendant was officers were inves thermore, Ray put that Officer testified tigating specific a offense. Lathum and feel free to position the same he would not Nuehring description fit and were Smith’s leave. are with We inclined burglary. to the close location a level subjected that he was These factors would indicate that the inves “indistinguishable of restraint that was tigating officers had the “reasonable and Dunaway arrest.” from a traditional See necessary justify suspicion” articulable York, 442 New U.S. v. questioning. Any brief detention and 824, 2248, 2259, 60 L.Ed.2d 839 in elicited at the scene of the statements vestigatory stop properly admitted at Lathum was co- Evidence indicates that trial, including statement that he Lathum’s officers, this cannot operative but with together Nuehring had been all eve When equated voluntary consent. ning. by show of suspect’s liberty is restrained a lose his authority, he does not somehow however, officers, ex by complying with the rights stop constitutional investigatory ceeded the bounds of an request of the transported suspects to the once 746 2256]; amend- 99 L.Ed.2d 2248
We hold S.Ct. [at proba- rights Royer, Absent ment violated. Florida ble cause or consent of the suspects, it L.Ed.2d [1325] (1983) trans- opinion). for the (plurality was unconstitutional And our view contin- the crime. All port them scene of line is crossed when ues to be obtained should police, evidence after cause or probable without a suppressed warrant, have been at trial. forcibly person from remove place his home other lightly. today decision is not reached Our transport him to entitled to be and recognize that the record contains more We station, detained, he is where al- con- support sufficient evidence to than briefly, investigative pur- though for However, ignore viction. we cannot poses. We adhere to the view that such evidence, much of indeed fact that seizures, judicial at least where no under evidence, damaging illegally ob- most *4 supervision, sufficiently are like arrests practical the in- purposes, For all tained. to invoke the traditional rule that arrests vestigating officers acted with in this case may constitutionally only made on disregard for the probable cause. rights. au- They amendment used their added). transport (emphasis majority The felt thority to the the Id. the police crime, question go along did not with the scene of the detain and hand, them, I, incriminating physical evi- on the other and obtain probable without with the trial court and believe defendant dence—all consent voluntarily being transport- The federal constitution does not did consent to cause. allow, condone, by are willing nor we ed constitutionally protected of violation First, the “Lathum majority states: was
rights.
go.”
he
I
never informed
free to
am
was
majority
authority,
aware of no
and the
Accordingly, we
the conviction
reverse
any authority,
places
cite
does not
which
remand the cause for a new trial.
and
duty upon police
to inform sus-
officers
AND
REVERSED
REMANDED.
pects during investigatory questioning that
token,
same
they
By
are free to leave.
Judges
except
concur
All
DONIELSON
never
either. More-
asked to leave
SACKETT, JJ.,
dissent.
and
over, I choose to
the trial court’s
follow
DONIELSON,
(dissenting).
Judge
findings
provided:
respectfully
I
dissent.
that the
The evidence establishes
officers
probable
Because
State conceded
forthright
the defendants.
were
with
cause did not exist
to arrest defendant
inves-
They
they
advised them
were
that
questioning, the issue
during the initial
the de-
tigating
burglary. They
asked
voluntarily
whether
the defendant was
fendants to
them
scene
transported
to the scene of
the defendants
of
did
—
Florida,
Hayes
U.S.
the crime. See
voluntarily
so
without hesitation. These
-, - 105
did not
that the defend-
officers
indicate
(1985).
States Su
The United
leave; they did
ants
not free to
were
Court has
preme
held:
required
state that
defendants
remain,
they
they
no
nor did
state that
There is
doubt that at some
investigative
proce-
any form of re-
process, police
were under arrest or
told
quantitative-
The defendants never
qualitatively
dures can
straint.
desirous of
respect
intrusive
to a sus-
officers that
ly be so
defendants sub-
privacy
leaving
until one of the
pect’s freedom movement and
possi-
he should
protection
sequently indicated that
trigger
interests as to
the full
lawyer. The defendants were
bly
the Fourth
Amend-
see a
and Fourteenth
officers.
cooperative
The
at
with the
Dunaway,
ments.
person.”
defendants were never handcuffed or
Id. at 720 (citing
LaFave,
3 W.
physically
any
restrained in
manner....
Search and Seizure: A Treatise on the
argue
Amendment,
pre-
The defendants
that the facts
Fourth
9.2§
viously set forth herein do constitute an
Supreme
The Iowa
Court State v. Gul-
objective indication that the officer exer-
(Iowa
ly,
1984),
Id. at 514-15. The court further authority. show of Under Iowa is determined that: enough to constitute a show of authori- ty. I enforcement officers do not violate conclude that the defendants volun-
[L]aw by merely ap- the Fourth Amendment tarily along went proaching an individual on the street or and did not authority. submit to a show of public place, by another asking him if Nothing was said so as to willing he is questions, to answer some objective amount to an indication that the by putting questions person to him if the exercising dominion over Lat- listen, willing by offering hum. I would affirm the trial court. evidence in prosecution a criminal his voluntary questions. answers to such SACKETT, J., joins this dissent. 491, 497, Royer, Florida v. 460 U.S. argued It is that defendant submitted to authority of a uniformed officer car, patrol
marked and the statement
that he was wanted at the station. De-
fendant thinks these circumstances were enough compel him to This submit. CO., LEVIEN LEASING argument suggests outright that an com- , Plaintiff-Appellant mand to submit was withheld merely to render the confronta- ambiguous tion thereby and to conceal COMPANY, DICKEY from our review that which was made Defendant-Appellee. obvious to the defendant: that he had to No. 84-1850. authority submit to officer to the station. Appeals Court of Iowa. *6 agree. Something We do not more is Nov. 1985. required for a seizure than occurred here. For a seizure there must be some-
thing uttered or done which would objective
amount to an indication that the
officer exercised some dominion over the
person seized.
The conduct in Gully equally, more, present coercive than the situa- Supreme
tion and the Iowa Court still held
such behavior did not constitute a show of
authority. According majority,
police officers “exceeded the bounds of an
investigatory stop they transported once to the scene of the crime and
later to the majority station.” The
apparently difficulty has little with the
frisk, emptying pockets, and driver’s request
license because those pre- events transportation
ceded and are also cov- stop.
ered a Terry majority seems equate request suspect by to a
on-duty, uniformed officer to accom-
pany him to the scene of the crime as a