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Holding people to prevent them
from alerting subjects of search warrant
Collins-Draine v. Knief, 617 N.W.2d 679 (Iowa Ct. App. 2000) (filed July 26, 2000, published
by Order of October 13, 2000.) Search and
seizure – holding people to prevent them from alerting subjects of search
warrant. "(T)here has been no
judicially-created exception to the Fourth Amendment that permits law
enforcement officials to seize people so as to prevent them from warning
suspects of police monitoring. . ." While the initial detention of the
driver of a car was supported by a reasonable articulable suspicion, no
justification existed for transporting her to the police station nor for her
continued detention at the station. In addition, there was no justification at
all for the detention of the family members who came to the station on behalf of
the driver. "(T)he trial court erred in applying established Fourth
Amendment principles and in making factual conclusions not supported by
substantial evidence. We therefore reverse and remand. . ."
Insufficient
evidence of solicitation of delivery of drugs
State v. Anderson,
618 N.W.2d 369 (Iowa 10/11/2000)
Solicitation of delivery of a controlled substance – insufficient
evidence. Evidence that criminal client offered to pay his legal fees in
illegal drugs, and that lawyer/defendant accepted drugs pursuant to that
arrangement, did not establish "solicitation" by the lawyer.
OWI suspect not entitled to independent uring test
after refusing requested blood test
State v. Bloomer,
618 N.W.2d 550 (Iowa 10/11/2000)
[1] OWI – prerequisite to independent
test. Defendant was not entitled to obtain an independent alcohol test
when he refused the requested test – a blood test – because he preferred a
urine test. [2] Discretionary
evidentiary issues. Trial
court’s refusal to permit the defense to replay a videotape of his arrest used
by the State did not prejudice the defendant. The court’s refusal to allow
defendant to cross-examine with a previously-used videotape transcript was
"somewhat inexplicabl(e)" but defendant failed to preserve the error
by offering the transcript into evidence upon a favorable reconsideration of the
court’s refusal.
Endorsement
of fictitious check - forgery
State v. Calhoun,
618 N.W.2d 337 (Iowa 10/11/2000).
Forgery – endorsement of fictitious check.
Defendant’s endorsement of
a check, in the name of and made out to a fictitious character he created,
drawing on the account of a fictitious business which he also created,
constituted forgery. Defendant’s argument that he could not be guilty of
behavior purporting to be the act of another who did not authorize that act gave
the Court pause as to whether drawing the checks constituted forgery; but
endorsing them did constitute forgery.
No
perjury without oath
State v. Carter,
618 N.W.2d 374 Iowa 10/11/2000)
No perjury without oath. Applicant for pharmacy technician license, who
falsely stated on the application that she had never been charged with or
convicted of a crime and certified that the information was correct, did not
commit perjury. The application was not notarized and no oath was ever
administered. Perjury requires an oath or affirmation "to ensure that a
person who is exposed to punishment for perjury recognized the obligation to be
truthful when making a false statement."
OWI
-- fairness of differences in determining how many offenses
"count"
State v. Maher,
618 N.W.2d 303 (Iowa 10/11/2000)
OWI
-- fairness of differences in determining how many OWI offenses "count",
criminal vs. license revocation.
The difference in how far back the State can go in determining which prior OWI
convictions "count" (for criminal charges, twelve years; for license
revocation purposes, only OWI convictions since June 30, 1991) "is not
against reason. It is merely a distinction the legislature has chosen to make
where revocation, not sentencing, is concerned."
Concealed
weapons -- sword cane
State v. McCoy,
618 N.W.2d 324 (Iowa 10/11/2000)
Concealed
weapons – sword cane. A "sword cane" (hollow cane with three
joints which, when unscrewed, become handles for two blades – one 5 ¼"
long and one 18 ¼" long -- contained within the cane) is a concealed
weapon. The cane is not a "closed and fastened container" so as to
serve as a defense the charge: "the cane was not designed or intended to
‘contain’ or hold the knife, but rather to disguise the knife."
Ongoing
criminal conduct -- single individual
State v. Olsen,
618 N.W.2d 346 (Iowa 10/11/2000).
Ongoing
criminal conduct – single individual. Iowa’s "ongoing criminal
conduct" charge (Iowa Code Chapter 706A ) permits the prosecution of a
single individual when that individual has committed any indictable offense
"committed for financial gain on a continuing basis." Unlike the Model
Act on which it is patterned, Iowa’s law is not limited to the prosecution of
networks and criminal enterprises. Defendant’s acts, starting with indictable
theft by deception (in connection with an initial home repair bill of $6000) and
continuing against his elderly victim until he had deprived her of $200,000, fit
the definition of ongoing criminal conduct.
Search
of person in home during execution of search warrant -- no expectation
of privacy
State v. Ortiz,
618 N.W.2d 346 (Iowa 10/11/2000).
[1] Search of person in home during execution of search warrant – no
expectation of privacy. Defendant did not have a reasonable expectation of
privacy in the home of another at which he was selling drugs. Defendant was at
that home only because his own home was under surveillance for drug activity. He
had permission to use the home for drug use and drug sales, but did not have
permission to move into the home. Further, the recovery of a measuring scale and
a large amount of money belonging to defendant supported the finding that
"at least a substantial part of the deliveries were made as commercial—not
social—transactions." [2] Drug sales – public park proximity
enhancement. The enhancement statute, section 124.406(1) provides "(I)f
the substance was distributed in or on, or within one thousand feet of, the real
property comprising a public or private elementary or secondary school, or in or
on the real properly comprising a public park. . ." The language
"within one thousand feet" modifies only the "schools;"
activity involving public parks are subject to enhancement only if the activity
occurs "in or on" a public park.
Ongoing
criminal conduct "specified unlawful activity" not vague as
applied
State v. Reed,
618 N.W.2d 327 (Iowa 10/11/2000). [1]
Ongoing criminal conduct – definition of "specified unlawful
activity" – vagueness. Iowa’s ongoing criminal conduct statute was
not vague as applied to drug dealer. The statute defines "specified
unlawful activity" as "any act, including any preparatory or completed
offense", section 706A.2(4) and section 706.1(5). Rejecting defendant’s
argument that statute could be read to prohibit noncriminal preparatory
activity, the court held that "preparatory" refers to
"offense" rather than "act," and is not vague as applied to
the defendant. The Court also rejected defendant’s vagueness claim that the
words "preparatory" and "continuing basis" from section
706A.1(5) ("preparatory … offense, committed for financial gain on a
continuing basis. . ."), construing the statute to require 1) proof of a
course of criminal activity where the offenses are related to one another with
the same or similar purpose and 2) proof of an ongoing threat of continuing
criminal activity. Three completed drug deliveries over two months satisfied the
first requirement, and the facts of the case (a stash for future sales, payment
of a person to hold the stash, etc.) established that the drug dealing was an
ongoing business. [2] Double
jeopardy and ongoing criminal conduct. The Double Jeopardy clause does not
prohibit punishing defendant for both ongoing criminal conduct and the related
drug delivery offense, as the legislature clearly expressed its intent to
authorize dual punishment.
Preservation
of error after guilty plea -- vagueness challenges
State v. Robinson,
618 N.W.2d 306 (Iowa
10/11/2000)
[1]
Preservation of error after guilty plea – vagueness
challenges. Pleading guilty waives both facial and "as applied"
statutory vagueness challenges. Previously, waiver was thought to apply to the
former but not the latter, as indicated in State v. Hunter 550 N.W.2d 460
(Iowa 1996), but from now on both types of challenges will be deemed waived by a
guilty plea. [2] Crimes – possession of child pornography.
The
"education exception" of section 728.7 ("nothing in this chapter
prohibits the use of appropriate material for educational purposes in any
accredited school, or any public library, or in any educational program in which
the minor is participating") does not apply to child pornography. Child
pornography is always contraband and can never be the type of "appropriate
material" envisioned by the exception.
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