*1 146 com- imposed, consideration. The trial court without careful
not mitted no error. Arizona, 384 86 S. Miranda v. U. S.
Defendant cites
applicable
Miranda case is
1602,
All Thornton, J., Justices concur Iowa, appellee, Rye, appellant. State of v. Joanne
No. 632) (Reported in N.W.2d *2 February 7, 1967. appellant. Iiuscher, Moines,
Gill & Des for Attorney Ray General, Fenton, Lawrence F. Coun- Scalise, ty Attorney, Craig Sawyer, counsel, Moines, all Dos appellee. rehearing granted J. Because former
Snell, opinion reported in herein, 145 N.W.2d is withdrawn and following substituted therefor. *3 larceny property having
Defendant was convicted of a years $20 value in excess of imprison- was sentenced to five ment in the reformatory. appeals jury women’s She verdict judgment grounds. on several plainclothes police
Two detectives the Des Moines force duty were in an police Friday on unmarked morning, car Au- gust 6, They report police received a from the radio dis- patcher that a black had suit been taken from Herman Kucharo’s Men’s suspects reported Store. The women, were as two one a wearing reported wig, gotten blonde who were to have into a by person. car driven an unidentified third The num- license They was type ber officers. they knew the of car look for, were to the owner of the car and his address all from previous experience with the owner. officers found
The the car about They 15 minutes later. it followed to the owner’s pulled home where it curb, com- ing complete stop. being almost to a The car was a driven passengers. man and had two women As the unmarked pulled up sped away high car the car at speed. a rate The stopped being officers followed. The car then pull after told to being speeding over. As the car was away, followed after passengers passing garments two women observed were between way. The in what as an abnormal them the officers described bags garments shopping were in or other containers. stopped approached The the officers it. ear was
When driver, why trying get Evans, was was Richard asked he did away. he not know. shrugged lie his shoulders said sitting in the into the Defendant The officers could see ear. was lap purse a passenger’s rear on the side. black her She had bulged, part garment sticking purse. that out of the of a was lady handbag sticking other a out garments The also had with wig lap. it. A The also blonde was defendant’s officers saw a suede coat a mink on it was between with collar which They and in also white two women defendant’s hand. saw a pillowcase on of the defendant’s feet. the floor seat between back pillowcase. A mink stole was in the No man’s suit was seen nor this time such suit ever found. occupants they get out,
The told car were going shoplifting. Other station for articles this were found the car coincidental to arrest. predicates
I. Defendant several errors on the assertion first illegal. the arrest This should be examined. contention position made Defendant’s the arrest here was and was actually complete when car was ordered the officers stop stop actually compliance did order. point this proposition
State does concede but states makes no difference as officers sufficient information they stop, a legal arrest both when ordered the car to and when people ordered out car. stop prepared every We are not to hold that order to policeman moving vehicle, when is, to the driver of *4 occupants This obeyed, an of all of the of that vehicle. arrest problem in has examined in detail United States been several holdings A the and the Court cases. close look at facts depends upon moment made indicates the when arrest is the facts each case. recognize an cases that officers do not have absolute stop investigation on mere whim or automobiles suspicion. ease, reviewed, Each under the circumstances
mere probable stop that the had cause to the vehicle and found officers 150 suspicious the arrest occurred after other circumstances probable subsequent
added additional reason for for the cause arrest.
Under the circumstances shown here hold that the stopping actions of officers in car in the which defendant riding taken probable cause, subsequent was on and the arrest after met seeing clothing formal the automobile statutory requirement 755.4(3) ; i.e., Code, 1966, section ground that the officershad an reasonable believe that indict public person able was offense committed that the to be ar had rested committed it.
The fact stopping initial cause for defendant was report of theft of a man’s suit and that a suit was such found, less connected defendant, never much does not vitiate In proceedings. Freeland, N.W. stopping plate 2d was initial because the license painted vicinity; over and there were recent breakins Henry States, v. United 361 U. S. L. Ed.2d whiskey looking the fact that officers were for stolen but found stolen radios was not determinative. employees
II. The State two called A¥olf’s store testify garments as to offered evidence. To summarize: they buyer's, sportswear were both Euth Gesland in and Beatrice in suits, furs; procedure Best coats and detailed the store’s inventory pricing, control, as to use of garments, tickets on sales by credit, register cash cash use of when sales were made customary practices. and other details of the store’s Euth Ges A, B, land testified that exhibits and D all three-part C had perforated on part customarily tickets them. One of the ticket is garment torn off when the is sold. These are tickets checked daily part inventory part control. The third in all items tact on four when recovered and in court. had She personally hung on Exhibit D the rack at A¥olf’s 9:30 the morning the arrest. She also testified that she checked register. gray three-piece As to the cash suit wool she was personal knowledge then allowed to state of her own dress had not been sold. *5 responsibility to main- it was her testified that
Beatrice Best question fnr in seen the mink inventory. That she had tain procedures connection arrest and detailed the morning of the a testified that such fur. She then recording the sale of with knowledge that this fur had not been sold. of own she knew her prices and testified as to retail wholesale The two witnesses price All Total retail prices $20. various items. exceeded of all items came to some $542.43. testimony objects all of this stat- strenuously
Defendant to testimony marking inventory, that the as sales and ing tickets bookkeeping opin- for the procedure, inventory control calls foundation, proper ion and conclusion of witness without that the testi- themselves, that the best the records evidence hearsay it as mony assumed facts not in evidence and that was opinion defendant. As to the evidence rela- conclusion objections clearly company practices, tion to without regu- as two witnesses merit. foundation established these employees very practices Wolf’s, lar their duties included the testimony procedures outlined the witnesses their established the fact were familiar both mer- handling chandise and that mer- the method of the store’s chandise. objection
The most to witness goes serious defendant following Gesland’s answer to the question.
“Q. your personal buyer knowledge Of own of this de- partment you and as a result searching records, do know particular garment whether not this Exhibit. ‘D’ was sold mi August 19651”
Objection made defense counsel. I “A. do the unit register, control books—I check the cash dress had not been sold.” A properly qualified may testify orally witness search books or records and to the fact search such fails reflect certain In Colton, transaction. re Estate of 129 Iowa 542, 546, negative N.W. “We think sought to be proven may fact; established is, by like other one possessing necessary information.” Under the circumstances necessary produce here it would not be records Wolf’s. *6 See Cohen also v. Boston Edison 322 Mass. 76 N.E.2d Co., page McCormick, Evidence, section 411. knowledge
Here the witness’ merchandise and pertinent qualified testify negative that records her to fact fur equally the item not been sold. This true of the was buyer’s testimony sys though different even under a similar but having control, testify tem of she did cheeked the cash register. probative testimony The value of this was for jury. predicates
III. in Defendant also error on the court’s jury property No. 9 possession struction which told the that recently may stolen from inference evidence which an person persons drawn that the possession it is found whose guilty larceny argues are this in thereof. Defendant given struction should not been there was no evi have because property dence that the stolen was in defendant’s exclusive possession. testimony Suffice to from note there was which jury could find from that Exhibits A and D were taken purse pillowcase defendant’s mink stole was between possession defendant’s feet. The evidence of was sufficient justify the instruction. requested
Defendant no amplifying instruction instructions No. 9. The given adequately subject instruction as covers the specific the absence of request additional See elaboration. Baker, State v. N.W.2d
IV. complaint fourth Defendant’s area of concerns the testimony of the officers toas certain statements and admissions made immediately station after the arrest. companion At the scene of the arrest informed defendant’s did say anything she not have to and told defend- say ant anything. parties not to At the station all three they say told did if anything have were asked they attorney. had an point Spencer one At Detective said question to a answer as to what he he said when advised parties of their rights, they “A. That didn’t have us to tell anything they without already counsel which knew.” latter portion properly stricken a conclusion. Suppress, trial on Motion to dire before voir Detective
On Thompson “My rights as to their stated: advice was substan- tially they say anything and didn’t have to asked them if they attorney. had an This the advice defendants at the Detective Room at the table.” testimony Thompson’s “They trial
Detective was: were told they anything they didn’t have to tell us were also asked if they attorney. They They said, had an ‘No’. were asked if things. They proceeded wanted to tell us these about say they get things paying did these without for them.”
In slightest suggestion the case before us there is not the any force, prolonged questioning, pressure, deceit, subterfuge, coercion, promises persuasion. threats, or even There was no any right. denial of *7 undisputed
It is in the repeat record that defendant was edly say advised that anything.” she “didn’t have to Defend and companion ant her if “were asked wanted to tell us things.” about these The officers testified as to what was then said. The statements reported voluntary of defendant as and were admissible at the time this case was tried. State v. Fox, 257 174, 684; Iowa 131 Tharp, N.W.2d 258 v. Iowa 224, 138 78; N.W.2d Mabbitt, State v. 257 1063, Iowa 135 N.W. 525; 2d Leiss, State v. 258 140 172; N.W.2d State v. Myers, 258 Iowa 140 891; Miller, N.W.2d State v. 259 Iowa N.W.2d 394.
This case was tried in November 1965 and defendant was sentenced November 1965.
On June 1966, Mr. Chief speaking Justice Warren, for Court of the United States, opinion delivered the the Court in Miranda Arizona, 436, 478, U. S.
1602, 1631, 16 L. Ed.2d opinion spelled out con- specificity siderable procedure required custody to make and statements confessions constitutionally admissible. Division III opinion of the concludes as follows:
“In dealing with statements through obtained interroga- tion, purport we do not find to all confessions inadmissible. Con- proper fessions remain a element in Any law enforcement. given freely statement and voluntarily any without compelling The fundamen- in evidence. is, course, admissible influences custody is an individual is import privilege while tal police the bene- talk without he is to to the not whether allowed interrogated. can he be warnings counsel, fit of and but whether person enters a police stop a who requirement There is no crime, ato he to confess and states that wishes station any other a confession or person calls to offer or a who any statements make. Volunteered statement he desires to their admis- Fifth Amendment and kind are not barred today. sibility holding affected our is not an is taken summarize, individual hold when “To by the au- custody deprived his freedom into otherwise ** * privilege subjected questioning, to thorities safeguards against jeopardized. Procedural self-incrimination is and unless other employed protect privilege, must be to adopted notify of his fully person effective means are to right will right of assure the exercise of the silence scrupulously following required. He honored, measures are any questioning right prior must that he has be warned against him silent, anything says to remain he can be used law, presence in a has an court of that he attorney and that if an one will be attorney, he cannot afford prior appointed questioning him if he so desires. him Opportunity rights these must be afforded to exercise throughout interrogation. warnings such have been After opportunity may given, him, such the individual afforded agree rights and knowingly intelligently waive these *8 But and questions answer or make a statement. unless until prosecution warnings such are the waiver demonstrated trial, interrogation can no evidence a result obtained against used him.” be Malloy S. Hogan, 1, called attention to v. 378 U.
The court 84 1489, 653, S. 12 holding Ct. L. Ed.2d the substantive apply underlying privilege standards with full force to state proceedings. court
In the case at bar the State concedes the record does not effectively apprised, show that defendant was under the or promulgated Miranda, right in of her to counsel standards 155 interrogation. during right present to have counsel included request counsel did not however, It that defendant appears, attorney deny any during nor did the officers interrogation, also interrogation. The during- record access defendant clearly that the statement made defendant demonstrates objections defense counsel admitted over sufficient later not a voluntary nature; is, in such statement was The record demonstrates defendant coerced confession. also has counsel, in the sense waiver did waive her rights. regard defined with traditional constitutional been factually to, controlled comparable ease before us Illi- v. principles Escobedo or violative announced prob- 1758, 12 L. nois, 478, Ct. Ed.2d 977. Our 378 S. 84 S. U. by Miranda. lem is whether the case is controlled Miranda, 20, 1966, one after decision On June week Court, Warren, again speaking Mr. Chief Justice Miranda should Court, cases, in two considered whether for the Jersey, In v. application. Johnson New accorded retroactive be 882, L. 719, 721, Ct. Ed.2d 384 U. S. 86 S. paragraph first said: court
“In upon this case are called to determine whether Illinois, (1964), Miranda v. Escobedo U. S. Arizona, retroactively. applied hold that Escobedo should We only began those the trial affects cases which after June 1964, the of that further that Miranda date decision. We hold only applies began in which the trial after the date cases ago. our one The convictions assailed here were decision week completed long at trials before Escobedo and Miranda obtained in- rendered, rulings in those are cases therefore applicable present proceeding.”
In for com- that ease had far more the defendants basis penalty does the in our and the plaint than defendant ease extreme but the court refused interfere. Carolina, 737, 739,
In Davis v. North 384 U. S. 1763, 16 L. Ed.2d court said: “Had the trial in this case us come after before our decision summarily. v. Arizona we would reverse Davis was in Miranda *9 custody interrogated police into re- taken Charlotte period days. no in the peatedly over a indication of 16 There rights him of of his until after record advised orally clearly day. he 16th This would be confessed on the improper Similarly, Miranda. could rights under no waiver of only be inferred from this since it shows that Davis was record repeatedly interrogated alleged he offense denied prior filially to the time he confessed. today, Jersey, also
“We have held Johnson New Miranda, delineating procedures safeguard our decision in Fifth privilege against during Amendment self-incrimination in-custody interrogation only. applied prospectively is to be present majr solely Thus the ground ease not be on the reversed warnings were not waiver shown.” In that an impoverished Negro ease with a or fourth third grade intelligence and a education low level of held an jail days inside measuring cell 10 feet con- before he fessed. Neither friend relative him. nor saw He was fed two “dry” day. sandwiches “thin” and twice fare was “This occasionally supplemented peanuts and other ‘stuff’ such cigarettes brought to him officer.” He lost 15 pounds during period this days For 16 he detention. subjected police interrogation, and varying tricks tactics break finally down his alibi and incriminate himself. He con- fessed. Court facts on said: “The established through period
record demonstrate that Davis went a prolonged in which substantial coercive brought influences were bear upon him to extort the confessions that marked culmination * * police, involuntary efforts. Davis’ confessions were the product constitutionally end of coercive influences and are thus ** inadmissible evidence.
It should be noted that the ease was reversed for constitu- infringement not appearing tional case before us specifically the court grounds refused on the reverse involved here. *10 having prior to the decision been tried case before us
Tlie law as it at the under the must be determined in Miranda trial. time of retroactively as apply Miranda
That state courts need McQueen, People 18 N.Y.2d interrogation see v. custodial to Y. N.E.2d 337, 274 N. S.2d is—Affirmed.
The case JJ., J.,G. and Moore and concur. Garfield, Larson, Stuart, J., Thornton, dissents. JJ., Mason dissent.
Becker, Rawlings, Becker, J. I dissent. People Judge dissent to Chief Desmond’s
I am indebted 898, 221 N.E.2d 274 N. Y. McQueen, 18 N. Y.2d S.2d “Unvarying following: for (cited by majority) 550, 558 (1 Peggy Schooner case fealty rule of the our lias been 110, 2 S.] 103, [1801]) U. L. Ed. 49 where Chief Cranch [5 general ‘It is true Marshall wrote: Justice inquire judg only to whether a province appellate of an court if, subsequent not. But rendered was erroneous or ment when court, appellate of the judgment, before the decision changes governs, rule which positively intervenes a law * * * obeyed, In such a obligation must be or its denied. the law laws, if according existing it be must decide case the court rendered, but necessary judgment, rightful aside when set law, judgment cannot be affirmed but violation of which must be set aside’.” Judge follow the above rule. As Chief Desmond
We should
requires
out,
plain justice
matter
that current
of the
points
appellate problems. This does not
applied to current
law be
already
disposed
to cases
application
the rule
necessitate
point urged by the
appeal.
oil direct
Hence the
by this court
effectively
application
rehearing is
answered.
in its
using
However, this
does
necessitate
the Miranda
ease
pre-Miranda
All
have to do here is follow the
dictates
we
rules.
fairly applied
of the United States as
Court
case to conclude
federal constitutional
facts
this
necessary.
trial is
and. a new
have been violated
guarantees
has less to commend
on Us
this case
seem that
It would
fads
any of
heretofore cited as
than
the cases
way warning
it
can and should
point where this court
It is the
precedent.
on coercion and duress as
historic insistence
depart from its
voluntary
recognize that
statements and
only criteria for
this
requirements are
be enforced
federal constitutional
like them not.
court whether
re-
majority states, “The statements
defendant as
this case
voluntary and were admissible
the time
ported
*11
support
recent Iowa
in
that
cites six
cases
was tried.” and
except
v. Fox
and dis-
cases,
State
were noted
case. All of those
opinion reported in
This, api>ears, it now was mistake. For Fox is one of obliquely in first cases which this court announced that it would plain import Supreme not follow the United States Court’s holdings Illinois, 478, in Escobedo v. 378 U. S. 84 S. 1758, 977; Carnley 12 L. Cochran, Ct. Ed.2d v. 369 U. S. 70; Malloy 8 L. Ed.2d Hogan, 82 S. Ct. 378 U. S. required until by L. Ed.2d to do so more language. language stringent supplied The in Miranda. import This avoided the clear court of those federal cases by majority. in the six state cases cited along Those cases many jurisdictions others from other forced the in detail Miranda. in
But each our State (arguably) enough eases there was warning majority so that the upon some evidence which it “a rationale; peg upon could build which it hang could its Not hat.” so here. record support The does not the statement in undisputed Division IV that “It is in the record de- say ‘didn’t have repeatedly advised she fendant was ” is be said this record anything.’ The most that can told that two officers testified that defendants were only fair say conclusion anything.” “didn’t have to But by the all statement was made from the evidence was this having only although its once, officers officers testified both certainly and most prior holdings made. Even our been under fair Court reading pre-Miranda under U. S. warn- decisions, we conclude that there was no effective should prior given ing here. The between this case our distinction prior in warning cases is that some semblance of recognizing eases. Here we must content ourselves with say anything” as effective bland statement she “didn’t have to an warning. factually majority states that “The case before us is comparable to, principles an- controlled violative of * * in sweeping
nounced Escobedo This statement is not accurate. The case is if the constitutional controlled Escobedo comparable mandates of Escobedo have been It is violated. Escobedo questioned both cases defendant was informing “without him remain of his absolute silent the face this It accusation.” violative of principles (as dissent), of Escobedo which Escobedo noted * * * *12 very “At the least holds that once the accused a becomes and, suspect presumably, arrested, any is admission made to thereafter is inadmissible evidence unless the ac- clearly cused has waived his principle counsel.” That present in the recognized ease as Mr. That Justice White. principle is violated unless (1) we hold that short statement once “You do not have to a talk to us.” is consitutional warning on which (2) waiver can be bottomed failure affirmatively request lawyer a in and of itself a constitutes waiver. This is the basis for the conclusion that this ease must ready be reversed unless we presume are waiver con- rights stitutional By doing here, from silent record. plain Carnley
violate the supra. mandate v. Cochran, Finally, this case should be reversed the defendant’s because rights constitutional Independent have been violated. forcing Federal Government attitude, which is
effect of our orderly just rights, respect constitutional to make us federal within obtained that convictions be procedure demands as the Iowa as well Constitution the United States framework of trial. for new and remand I would reverse Constitution. Rawlings say that I am authorized Mason Justices in this dissent. concur Lyle Snook, appellant. Elliott Iowa, appellee, v.
No. 252) (Reported N.W. 2d in 146