Kirk Howsare and Austin Howsare v. Iowa District Court for Polk County

• Court: Supreme Court of Iowa
• Decided: February 17, 2023
• Docket: 21-1946
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 21–1946

Submitted January 18, 2023—Filed February 17, 2023

KIRK HOWSARE and AUSTIN HOWSARE,

Petitioners,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,

Respondent.

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.

Petitioners seek dismissal of misdemeanor assault charges based on

allegedly unlawful arrest and detention. WRIT ANNULLED.

McDonald, J., delivered the opinion of the court, in which all justices

joined.

Dean Stowers (argued) of Stowers & Nelsen PLC, West Des Moines, for

petitioners.

Brenna Bird, Attorney General, and Kyle Hanson (argued), Assistant

Attorney General, for respondent. 2

McDONALD, Justice.

A magistrate issued arrest warrants for Kirk and Austin Howsare on

charges of simple misdemeanor assault, in violation of Iowa Code

section 708.2(6) (2021). The warrants related to an incident occurring on

August 13, 2021, where the defendants allegedly assaulted a woman during a

business meeting by “intentionally following [her] into an elevator[,] shouting

profanity and telling her she could not leave, [and] forcing [her] to redirect her

exit because [she] had not provided the defendant[s] with paperwork said to be

part of the business meeting.” The arrest warrants provided, “No bond until

initial appearance as No Contact Order is requested.”

The Howsares were arrested on the afternoon of November 2 and detained

in the Polk County Jail overnight. The following morning, the Howsares made

their initial appearances before a district associate judge, were served with

no-contact orders, posted $100 cash bond, and were released. The total time of

their respective detentions did not exceed twenty-four hours.

Unhappy with what they believed to be unnecessary and unwarranted

temporary detentions, the Howsares moved to dismiss their cases on the ground

that the no-bond arrest warrants, arrests, and subsequent detentions were

unlawful. The district court denied the motions, and we granted the Howsares’

joint petition for writ of certiorari.

I.

“Certiorari is appropriate when a lower court or tribunal has exceeded its

authority or otherwise acted illegally.” State v. Iowa Dist. Ct., 828 N.W.2d 607, 3

611 (Iowa 2013); see also Iowa R. Civ. P. 1.1401. “Illegality exists . . . when the

court has not properly applied the law.” Christensen v. Iowa Dist. Ct., 578 N.W.2d

675, 678 (Iowa 1998). “Absent a constitutional argument, ‘we review a district

court’s decisions related to bail for an abuse of discretion.’ ” State v. Letscher,

888 N.W.2d 880, 883 (Iowa 2016) (quoting State v. Briggs, 666 N.W.2d 573, 575

(Iowa 2003)). Constitutional challenges related to bail are reviewed de novo. Id.

II.

The Howsares make several challenges to their arrests and detentions.

They first contend their arrests and detentions violated their constitutional rights

to be free from unreasonable seizures as protected by the Federal and State

Constitutions. They contend the no-bond arrest warrants and detentions until

their initial appearances violated their state constitutional right to bail. They

argue even if their arrests and detentions were constitutional, the magistrate did

not have the authority to issue no-bond arrest warrants. Finally, they argue their

detentions were unlawful because there was unnecessary delay in bringing them

before a judge for initial appearances.

A.

The defendants first contend their arrests and detentions until their initial

appearances violated the federal and state constitutional prohibitions against

unreasonable seizures. As relevant here, the Fourth Amendment to the United

States Constitution provides, “The right of the people to be secure in their

persons . . . against unreasonable . . . seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or 4

affirmation, and particularly describing the . . . persons or things to be seized.”

The Fourth Amendment is applicable to the states under the Due Process Clause

of the Fourteenth Amendment. See Wolf v. Colorado, 338 U.S. 25, 27–28 (1949),

overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 653 (1961). The text

of “[t]he Fourth Amendment to the United States Constitution is materially

indistinguishable from article I, section 8 of the Iowa Constitution.” State v.

Wright, 961 N.W.2d 396, 404 n.3 (Iowa 2021).

The Howsares’ respective arrests and detentions do not violate the federal

or state constitutional prohibition against unreasonable seizures. “[A] claim

challenging pretrial detention [falls] within the scope of the Fourth Amendment.”

Manuel v. City of Joliet, 580 U.S. 357, 364–65 (2017). “[P]retrial detention can

violate the Fourth Amendment not only when it precedes, but also when it

follows, the start of legal process in a criminal case.” Id. at 366–67. “[A] pretrial

restraint on liberty is unlawful unless a judge (or grand jury) first makes a

reliable finding of probable cause.” Id. at 365.

Here, there was such a finding. The Polk County Attorney’s Office filed

complaints against the Howsares. The complaints alleged the Howsares

committed an assault in violation of Iowa Code section 708.2(6). The complaints

were supported by the sworn statement of a peace officer setting forth the facts

and circumstances of the alleged offense. The complaints were presented to a

magistrate, who found probable cause that an offense had been committed and

that the defendants had committed it. The magistrate then issued the arrest

warrants. The Howsares do not challenge the preliminary complaints, sworn 5

statements, or probable cause determinations. Because the Howsares were

arrested after an unchallenged finding of probable cause, their federal and state

unconstitutional seizure claims fail as a matter of law. See id. at 367 (“The Fourth

Amendment prohibits government officials from detaining a person in the

absence of probable cause.”).

B.

The Howsares argue the endorsement on the warrants delaying bond until

their initial appearances violated their right to bail under article 1, section 12 of

the Iowa Constitution. Article 1, section 12 provides that “[a]ll persons shall,

before conviction, be bailable, by sufficient sureties, except for capital offences

where the proof is evident, or the presumption great.” Iowa Const. art. I, § 12.

The history leading up to our founding shows “[o]ur framers chose to provide a

limited right to bail in the Iowa Constitution.” Briggs, 666 N.W.2d at 582. For

example, this court has previously concluded the right to be bailable “by

sufficient sureties” did not preclude the requirement of cash bond. Id. at

582–83. We explained “unfettered access” to bail “would be contrary to the

language of our constitution and, indeed, the long history of the bail system’s

development and operation.” Id.

Similarly, in this case, the constitutional right to “be bailable” does not

require immediate, unfettered access to bail. Article 1, section 12 provides only

that all persons shall be bailable “before conviction.” Iowa Const. art. I, § 12.

Beyond that, the text of the constitution does not set forth a particular time by

which an arrestee shall be bailable. And, contrary to the Howsares’ contention, 6

the text of the constitution certainly does not provide for or even suggest a

constitutional right to be bailable before initial appearance. Indeed, as will be

discussed below, the Howsares concede that the Iowa Code actually requires that

persons arrested for certain offenses be held without bail prior to initial

appearance. Thus, while it is certainly true that an arrestee has “a liberty interest

in a prompt appearance before the [c]ourt for a first appearance and bail

determination,” James v. Valdez, No. Civ. 13–424 JCH/GBW, 2015 WL

13665445, at *11 (D.N.M. Mar. 16, 2015), there is no general constitutional

“right to release prior to first appearance,” Thourtman v. Junior, 338 So.3d 207,

211 n.7 (Fla. 2022) (per curiam). See also Westerman v. Cary, 892 P.2d 1067,

1075 (Wash. 1994) (en banc) (holding “detention without bail pending a speedy

judicial determination” at preliminary appearance does not violate state

constitutional right to bail). The district court did not err in denying the

Howsares challenge under article 1, section 12.

C.

The Howsares statutory argument fares no better. The relevant statutes

grant the magistrate issuing the warrant discretionary authority to impose

conditions of release, including a condition that an arrestee must make an initial

appearance and be served with a no-contact order. Iowa Code chapter 804

governs the issuance of warrants. Section 804.1 provides that, upon a finding of

probable cause, “the magistrate shall, except as otherwise provided, issue a

warrant for the arrest” of an alleged offender. Iowa Code § 804.1. If the offense is

bailable, the magistrate must make an endorsement on the warrant setting forth 7

the amount of bail or “other conditions of release.” Id. § 804.3. As relevant here,

the magistrate may impose other conditions of release when “the magistrate

determines in the exercise of the magistrate’s discretion” that unconditional

release “will jeopardize the personal safety of another person or persons.” Id.

§ 811.2(1)(a). This discretionary authority allows the magistrate to “[i]mpose any

other condition deemed reasonably necessary to assure . . . the safety of another

person or persons including a condition requiring . . . that the defendant have

no contact with the victim or other persons specified by the court.” Id.

§ 811.2(1)(a)(5).

Despite the plain language of the statute, the Howsares deny the

magistrate had any such discretion. They contend chapter 664A implicitly

disallows a magistrate from delaying bond until initial appearance.

Chapter 664A governs the issuance and enforcement of no-contact orders in

criminal cases with an alleged victim. Section 664A.3(1) requires a no-contact

order be issued at the time of initial appearance when a person is arrested for

certain public offenses. Iowa Code § 664A.3(1). And Iowa Code section 664A.3(2)

provides that “a person taken into custody pursuant to section 236.11 or

236A.12 or arrested pursuant to section 236.12 . . . may be released on bail or

otherwise only after initial appearance before a magistrate.” The Howsares argue

the public offenses set forth in section 664A.3 are the exclusive offenses for

which an arrestee can be detained without bond until initial appearance.

Because the simple misdemeanor assault at issue in this case is not one of those 8

specified public offenses, they argue, the magistrate lacked discretionary

authority to impose the condition at issue.

We disagree with the Howsares’ reading of the statute, and we conclude

there was no showing the issuing magistrate abused its discretion in delaying

bond until initial appearance. Chapter 664A’s directive that certain persons

must be held until initial appearance does not mean the magistrate issuing the

warrant has no authority to require other persons to also be held until initial

appearance. To the contrary, Iowa Code sections 804.3 and 811.2 provide the

magistrate with discretion to endorse on the warrant other conditions of pretrial

release, which specifically includes the discretion to set conditions of pretrial

release calculated to assure the safety of others.

Here, the magistrate required as a condition of release that the Howsares

make initial appearances so the magistrate could determine whether no-contact

orders should issue for the protection of the alleged victim. This was clearly

allowed by statute and was within the discretion of the magistrate issuing the

arrest warrants. Although the alleged offense occurred several months prior to

the execution of the arrest warrants, the need to protect the alleged victim

remained. Indeed, the issuance and execution of the arrest warrants may have

served as a potential impetus for escalation of the situation or retaliatory

violence. There is no showing in this case that the magistrate issuing the arrest

warrants failed to exercise its discretion or abused its discretion—such as using

a fixed policy in determining conditions of release. The Howsares are thus not

entitled to any relief on this claim. 9

D.

Finally, the Howsares argue their respective overnight detentions prior to

their initial appearances constituted “unnecessary delay.” We disagree. Iowa

Rule of Criminal Procedure 2.1(2)(d) defines “unnecessary delay” as “any

unexcused delay longer than 24 hours [or] a shorter period whenever a

magistrate is accessible and available.” The Howsares detention prior to initial

appearance was less than twenty-four hours, and the Howsares failed to present

any evidence that another magistrate was “accessible and available” prior to the

time of their initial appearance. See, e.g., Valadez v. City of Des Moines,

324 N.W.2d 475, 478 (Iowa 1982) (holding “plaintiff was required to present

substantial evidence that a magistrate was accessible and available” to

demonstrate unnecessary delay and collecting cases on similar rules in other

jurisdictions). In the absence of any such evidence, “there is no unnecessary

delay in waiting for the magistrate to preside over initial appearances until his

regular courtroom hours, subject to the twenty-four hour maximum.” Id. at 479.

III.

The Howsares are not entitled to dismissal of the charges for an additional

reason: dismissal of a criminal charge is not the appropriate remedy for an

unlawful detention. The remedy for any violation of law must be “tailored to fit

the wrong.” State v. Dowell, 297 N.W.2d 93, 97 (Iowa 1980) (en banc). “Different

remedies apply for violations at the different stages of the proceeding. A violation

in the arrest and probable cause stage affects the legality of detention of the

accused to answer the charge but has no necessary effect on its merits.” Id. Thus, 10

with respect to allegedly unlawful pretrial detention, “[i]n the absence of any

other sanction in statute or rule, the remedy for a violation . . . is release from

detention rather than dismissal of the charge.” Id.; see e.g., Brown v. State,

297 N.W.2d 101, 102 (Iowa 1980) (en banc) (holding dismissal with prejudice

was not warranted even when there was “unnecessary delay in bringing [the

defendant] before a magistrate for an initial appearance”).

We have applied this rule in a variety of contexts—two of which we discuss

here. In State v. Dowell, the question was “whether a person arrested for an

alleged parole violation has a right to have the proceedings against him

dismissed with prejudice when the arresting officer does not take him ‘before a

magistrate without unnecessary delay for an initial appearance’ ” as required by

the Code. Dowell, 297 N.W.2d at 95 (quoting Iowa Code § 908.2 (1977)). Because

the violation occurred during the probable cause stage of the proceeding, we

concluded it was “analogous to a violation of statutory preliminary hearing

rights.” Id. at 97. We concluded dismissal was “not required by constitution nor

provided for by statute or rule.” Id. at 98. We further concluded that dismissal

“would bar a charge on a basis having no necessary relationship to its merits”

and that, “[m]oreover, it would penalize the public by creating a risk that

meritorious charges would be dismissed rather than penalize the officer

responsible for the violation of rights.” Id.

In State v. Rouse, the defendant sought to vacate his conviction for

second-degree burglary on the ground the district court did not hold a

preliminary hearing within ten days after his arrest as required by rule. 11

290 N.W.2d 911, 912 (Iowa 1980). We rejected the argument, stating that

“neither dismissal of a charge nor voidance of a subsequent conviction was

required.” Id. at 913. We explained the constitution did not require dismissal as

a remedy for an unlawful detention, and the legislature did not provide for

dismissal as a remedy. See id. (“We cannot ascribe to the legislature, however,

an intent to meet such failure by a remedy as severe as dismissal; nor, as

discussed above, is such result mandated upon constitutional grounds.”);

State v. Beyer, 258 N.W.2d 353, 356 (Iowa 1977) (“Nor would even illegal

detention in and of itself void a subsequent conviction.”); State v. Fowler,

248 N.W.2d 511, 515 (Iowa 1976) (“Nor do we retreat from the established rule

that illegal arrest or detention does not void a subsequent conviction.” (quoting

Gerstein v. Pugh, 420 U.S. 103, 119 (1975))).

Other courts agree that dismissal is an ill-fitting remedy for unnecessary

delay in an initial appearance, especially where, as here, the delay caused no

prejudice to the arrestee’s defense to the merits of the charge. See, e.g., United

States v. Chavez, 705 F.3d 381, 385–86 (8th Cir. 2013) (“In this case, there is no

showing of prejudice to Chavez from the delay between arrest and appearance.

Even if there were, the appropriate remedy would be suppression of the

statements made during that period, not dismissal of the indictment.”); United

States v. Carruthers, 458 F. App’x 811, 818 (11th Cir. 2012) (per curiam) (stating

the “only remedy” the court has recognized for delay “is the suppression of

evidence obtained as a result of the violation”); United States v. Colburn,

401 F. App’x 706, 708 (3d Cir. 2010) (stating dismissal of the indictment is not 12

a remedy for unnecessary delay); Allen v. State, 760 S.W.2d 69, 70 (Ark. 1988)

(stating the rule requires an appearance but a violation “does not require

dismissal of the charges”); Commonwealth v. Perito, 632 N.E.2d 1190, 1193

(Mass. 1994) (“We agree with the defendant that the practice followed by the

District Court judge violated the defendant’s . . . right to a prompt initial court

appearance, and that, consequently, the defendant was illegally detained.

However, . . . there is no basis for dismissing the indictments.”); State v.

Bolinske, 969 N.W.2d 450, 456 (N.D. 2022) (“[D]etention in violation of a

statutory right to bail ordinarily is not grounds for dismissing a complaint or

voiding a subsequent conviction.”).

IV.

For the foregoing reasons, we conclude the district court did not act

illegally in denying the Howsares’ respective motions to dismiss the assault

charges filed against them.

WRIT ANNULLED.