Bousman v. Iowa District Court for Clinton County

630 N.W.2d 789, 2001 Iowa Sup. LEXIS 122, 2001 WL 748196
CourtSupreme Court of Iowa
DecidedJuly 5, 2001
Docket99-1548
StatusPublished
Cited by33 cases

This text of 630 N.W.2d 789 (Bousman v. Iowa District Court for Clinton County) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bousman v. Iowa District Court for Clinton County, 630 N.W.2d 789, 2001 Iowa Sup. LEXIS 122, 2001 WL 748196 (iowa 2001).

Opinions

TERNUS, Justice.

Keith Bousman filed an appeal, which we treat as a petition for writ of certiorari, from a district court decision denying his motion to quash a prior court order directing him to submit to a nontestimonial identification procedure. Bousman claims that the court’s order for nontestimonial identification violated his constitutional protection against unreasonable searches and seizures and was issued in contravention of the authorizing statute, Iowa Code chapter 810 (1999). The State contends preliminarily Bousman has no right to appeal' this order under Iowa Code section 814.6(1) and discretionary review under section 814.6(2) is inappropriate. The State also asserts that the order for nontestimonial identification did not violate constitutional provisions or chapter 810.

Upon our consideration of the record and the arguments of the parties, we conclude that the present appeal should be treated as a petition for writ of certiorari. Considering the appeal as an original cer-tiorari action, we grant the writ and proceed to the merits. On the merits of Bousman’s claim, we hold that the court’s order for nontestimonial identification was not supported by “reasonable grounds to suspect” that Bousman committed a felony, as required by Iowa Code section 810.6(2) and the Fourth Amendment. Therefore, we sustain the writ of certiorari and remand for entry of an order quashing the district court’s order requiring Bous-man to submit to a nontestimonial identification procedure.

I. Background Facts and Proceedings.

On March 31, 1999, Emily Shaver notified Clinton police that her car had been burglarized. Someone had broken the passenger side window and removed several items from the car. The investigation revealed that two blank checks, moved from their normal position, were stained with blood.

On August 27, 1999, the county attorney’s office applied for a nontestimonial identification order directed to Keith Bous-man. See Iowa Code ch. 810 (Iowa’s nontestimonial identification statute). In the application, the county attorney requested that the court order Bousman to submit to a swabbing of his mouth for a saliva sample to be used for purposes of DNA analysis to aid in the investigation. The county attorney supported this application with an affidavit, signed by an investigating officer.

The district court granted the county attorney’s application and issued an order directing Bousman to appear at the Clinton police department to have “oral swabs taken from the mouth.” Bousman filed a motion to quash, alleging that the reasons stated for requiring him to submit to the procedure were “inadequate” and violated his right against unreasonable searches and seizures. The district court denied Bousman’s motion, finding that the application established reasonable grounds to suspect Bousman “committed or aided and abetted the commission of a felony.” Bousman appealed.

II. Does Bousman Have a Right of Appeal From the District Court’s Order Denying His Motion to Quash?

The initial issue before this court is whether Bousman had a right to appeal [793]*793the district court’s ruling on his motion to quash the order for nontestimonial identification. The State contends that the non-testimonial identification order is quasi-criminal in nature and, therefore, the law governing criminal appeals applies. It asserts that Bousman’s attempted appeal from the court’s ruling on the motion to quash is not a permitted criminal appeal as of right authorized by Iowa Code section 814.6(1). The State argues, in addition, that discretionary review should not be granted. See Iowa Code § 814.6(2)(e) (allowing discretionary review of “[a]n order raising a question of law important to the judiciary and the profession”).

Iowa Code section 814.6 grants “the defendant” a right of appeal from certain specified judgments and the opportunity for discretionary review of other designated orders. Chapter 814 is part of the criminal procedure code. See Iowa Code § 801.1 (“Chapters 801 to 819 shall be known and may be cited as the ‘Iowa Code of Criminal Procedure.’ ”). Therefore, the term “defendant,” as used in the context of chapter 814, refers to the “accused” in a criminal case. Black’s Law Dictionary 429 (7th ed.1999). Although it is possible for a “defendant” to be the subject of a nontestimonial identification order,1 Bous-man does not fall within that class of persons. Bousman has not been accused of or charged with any crime. See Webster’s Third Neiv International Dictionary 14 (unabr. ed.1993) (defining “accused” as “one charged with an offense; esp: the defendant in a criminal case”). He is not and may never be a “defendant.” He is merely a suspect. See id. at 2303 (defining “suspect” as “one suspected of a crime”). Therefore, section 814.6 does not govern Bousman’s right or opportunity to appeal.

On the other hand, a proceeding for issuance of a nontestimonial identification order is clearly not civil so as to trigger the rules allowing appeal of final judgments or decisions in civil cases. See generally Iowa R.App. P. 1 (providing for appeals in civil cases). Proceedings under chapter 810 can be initiated only by a person who has been arrested for or charged with a criminal offense, see Iowa Code § 810.2, or, as in this case, by a prosecuting attorney during the investigation of a criminal offense, see id. § 810.3. We agree with the State that such proceedings are quasi-criminal, if not criminal, in nature. See generally id. § 801.1 (stating that chapter 810 is part of code of criminal procedure); 1981 Iowa Acts ch. 206, §§ 2-15 (described as a bill “concerning certain criminal procedures” (emphasis added)) (codified at Iowa Code §§ 810.3-.16 (1983)). Therefore, the rules governing appeals in civil cases do not apply.

The fact that this case does not fall within the rules for civil cases or the statute giving criminal defendants the opportunity for appellate review does not mean that Bousman is without a remedy. In City of Janesville v. McCartney, 326 N.W.2d 785 (Iowa 1982), we allowed review of a district court ruling by certiorari where neither rule nor statute provided for any other manner of review. McCartney, 326 N.W.2d at 786. If the present appeal should have been filed as an original cer-tiorari proceeding, we may consider the appeal “as though the proper form of review had been sought.” Iowa R.App. P. 304. Therefore, we will consider Bous-man’s notice of appeal as a petition for [794]*794writ of certiorari and proceed to determine whether he is entitled to appellate review on this basis.

The supreme court has “constitutional powers to issue writs to, and exercise supervisory and administrative control over, other judicial tribunals.” State v. Davis, 493 N.W.2d 820, 822 (Iowa 1992).

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Bluebook (online)
630 N.W.2d 789, 2001 Iowa Sup. LEXIS 122, 2001 WL 748196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bousman-v-iowa-district-court-for-clinton-county-iowa-2001.