IN THE SUPREME COURT OF IOWA No. 06 / 06-1443
Filed May 2, 2008
STATE OF IOWA,
Appellee,
vs.
GUY EDWARD FREMONT,
Appellant.
Appeal from the Iowa District Court for Worth County, Jon S.
Scoles, Paul W. Riffel, and Bryan H. McKinley, Judges.
Defendant appeals conviction based upon the admission of
evidence seized pursuant to a warrant issued by a magistrate who was
not neutral and detached. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, and Jeffrey H. Greve, County Attorney, for
appellee. 2
APPEL, Justice.
In this case, we consider whether the search and seizure
provisions of the United States and Iowa Constitutions require the
suppression of evidence obtained where a search warrant was approved
by a magistrate who, at the time of the execution of the warrant,
simultaneously represented a party in a family law proceeding adverse to
one of the warrant’s named parties. We hold under the facts of this case that the magistrate was not “neutral and detached” as required by the
Fourth Amendment and that the doctrine of harmless error does not
apply. As a result, the motion to suppress should have been granted.
The conviction of the defendant, therefore, is vacated and the case
remanded to the district court.
I. Background Facts and Proceedings.
In August 2005, Mike and Amy Wilson contacted Worth County
Deputy Sheriff Dan Fank regarding their granddaughter. The Wilsons
told Fank that when they visited their granddaughter, the baby’s clothing
smelled of marijuana. Additionally, Amy told Fank that when the baby’s
mother, Destiny Fremont, visited the Casey’s store where Amy worked,
she exhibited bloodshot eyes and acted “goofy.” When confronted about being stoned, Amy reported that Destiny merely looked away and giggled.
Fank told the Wilsons that they should contact the Department of
Human Services and report any further incidents to law enforcement.
The following month, Amy contacted another Worth County deputy
sheriff, Jan Langenbau. Amy advised that after she and her husband
picked up the child, they opened the baby’s blanket and found a leafy
substance they believed to be marijuana. Langenbau collected the
substance. Tests later confirmed that it was indeed marijuana. 3
In January 2006, T.C. Simon contacted Fank. Simon was at the
time dating Lacy Nelson, Destiny’s sister, and had recently lived with
Nelson, Destiny and their parents. Simon admitted that he had smoked
marijuana at the residence. Simon additionally told Fank that the
Fremonts periodically purchased marijuana, that everyone in the home
smoked it, and that they possibly also used methamphetamines. Simon
expressed concern about the small children who resided at the home. Two weeks after receiving the report from Simon, Fank and
Northwood Police Officer Jesse Luther removed a bag of garbage from the
sidewalk in front of the Fremont residence. In the garbage, the officers
discovered an envelope addressed to the defendant Guy Fremont,
Destiny’s father, numerous stems and seeds, and a used package of Zig-
Zag rolling papers. The stems later tested positive as marijuana.
On January 19, 2006, Fank presented an application for a search
warrant to Douglas Krull, a part-time magistrate. The application
included an affidavit by Fank, a report by Langenbau, and photos of the
items recovered from the garbage bag. Among other persons, Destiny
Fremont was listed on the search warrant as residing in the home.
Krull immediately recognized Destiny’s name. Destiny and Bryce Schnulle were the unmarried parents of the Wilsons’ granddaughter.
Krull, in his capacity as a private attorney, had previously filed a
paternity, custody, and child support action on behalf of Schnulle
against Destiny. Two months prior to the warrant application, Schnulle
through Krull, sought temporary child support. The court denied the
motion, and ordered Schnulle to pay temporary support. The matter was
still pending at the time the warrant was issued.
Krull decided to sign the warrant even though he was aware of his
representation adverse to Destiny. Krull reasoned that the evidence was 4
overwhelming, physical in nature, and did not require him to evaluate
the credibility of witnesses. The search warrant was executed on the
same day Krull signed the warrant.
The search produced substantial evidence against the adults living
in the home. Upon entering, Fank immediately recognized the
overwhelming smell of burnt marijuana. Searches conducted on the
adults present produced additional marijuana and rolling papers. When Fank pulled Guy aside and asked if there was additional contraband in
the house, Guy directed officers to two trays of marijuana in an upper
cabinet in the kitchen. In addition, marijuana was seized from an
upstairs bedroom and methamphetamine and marijuana paraphernalia
were discovered, including pipes with residue in the room next to where
small children were playing. Guy also admitted he sold marijuana, but
only to make a life for his family.
In light of the evidence, the State charged Guy with possession of
marijuana with intent to deliver, failure to affix a drug tax stamp, and
child endangerment.
Guy filed a motion to suppress the evidence seized in the search,
asserting that Krull was not a neutral and detached magistrate as required by Article I, section 8 of the Iowa Constitution and the Fourth
Amendment of the United States Constitution. The district court held
that because probable cause was so clearly established, no constitutional
infirmity was present. Guy was later convicted of all charges. The
defendant appealed.
II. Standard of Review.
Constitutional claims are reviewed de novo. State v. Freeman, 705
N.W.2d 293, 297 (Iowa 2005). In an action involving a structural
challenge to the validity of a warrant, the burden of proof rests with the 5
defendant. Franks v. Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674,
2676, 57 L. Ed. 2d 667, 672 (1978).
III. Discussion on Merits.
A. Background of Requirement of a “Neutral and Detached”
Magistrate in Search and Seizure Context. The Fourth Amendment to
the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const., amend IV.
The Iowa Constitution has a search and seizure provision with
nearly identical language. Iowa Const. art. I, § 8. These two
constitutional provisions are generally “deemed to be identical in scope,
import, and purpose.” State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).
No party has suggested that the Iowa constitutional provision should be
interpreted differently than its federal counterpart on the contested
issues in this appeal and, as a result, we interpret the Iowa Constitution
similarly to its federal counterpart. In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000) (refusing to deviate from federal analysis in
considering state constitutional claim because appellant “ha[d] suggested
no deficiency in the federal principles . . . nor ha[d] he offered an
alternative test or guideline”).
The second clause of the Fourth Amendment, known as the
Warrants Clause, is silent on the question of who may issue a valid
warrant. As a result, while the language suggests an intent to limit the
power of police to engage in searches and seizures that are unreasonable
or not based on probable cause and to limit the scope of warrants 6
authorizing intrusions into private lives, there can be no resort to a
textual analysis of the Fourth Amendment to provide guidance on the
question of who may issue a valid warrant. Lloyd L. Weinreb,
Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 47 (1974).
The drafting history of the Fourth Amendment is also of little help.
While James Madison’s original draft of the Warrants Clause was
directed solely at the substantive requirements for a valid warrant, the draft was changed by Congress to include the Reasonableness Clause.
Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. &
Mary L. Rev. 197, 208–09 (1993). There is simply nothing of relevance
on the question of magistrate qualifications that can be teased from this
drafting history.
In light of the language and limited legislative history, it is not
surprising that authorities have resorted to vague generalities in
characterizing the commands of the Fourth Amendment. Leading Fourth
Amendment scholars declare that the Fourth Amendment embodies “a
spiritual concept” in the value of privacy and a “value judgment” about
privacy and security in a free and open society. See Jacob W. Landynski,
Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation 47 (1966); Anthony Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn. L. Rev. 349, 403 (1974). These declarations,
however, provide little specific guidance on how Fourth Amendment
values should be implemented in the real world.
B. United States Supreme Court Approach to Neutrality and
Detachment of Magistrates Under the Fourth Amendment.
1. “Neutral and detached” magistrate. Left with the broad
language of the Fourth Amendment and the unilluminating historical
context, the burden of translating the generalized constitutional 7
commands of the Fourth Amendment into a workable body of law has
fallen on the United States Supreme Court. The first clear
pronouncement by the United States Supreme Court that a warrant
under the Fourth Amendment must be issued by a “neutral and
detached” magistrate surfaced in Johnson v. United States, 333 U.S. 10,
68 S. Ct. 367, 92 L. Ed. 436 (1948). In Johnson, Justice Robert Jackson
emphasized that the inferences drawn from evidence to determine whether probable cause existed to engage in a search must be made by
“a neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime.” Id. at
14, 68 S. Ct. at 369, 92 L. Ed. at 440. As originally formulated by
Justice Jackson, the requirement of a “neutral and detached” magistrate
was tied to the concept of separation of powers—the magistrate
approving the warrant must not be an eager (or sullen) police
apparatchik or agent. Id.
The requirement of a “neutral and detached” magistrate
announced in Johnson has been subsequently repeated, usually as
background dicta, in dozens of United States Supreme Court cases. In
light of the Supreme Court’s stated preference for searches based on warrants issued by magistrates upon a showing of probable cause, Katz
v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967),
the inherently vague concept of probable cause, the ex parte nature of
the proceeding, and limited appellate review of probable cause
determinations only for abuse of discretion, academic commentators
have stated that the securing of a warrant from a “neutral and detached”
magistrate has evolved into the “centerpiece,” “cornerstone,” and “critical
protection” of the Fourth Amendment. Silas J. Wasserstrom & Louis
Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 8
Geo. L.J. 19, 34 (1988) (centerpiece); Robert B. Mosteller, Testing the
Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall
Lead Them,” 82 Ind. L.J. 917, 973 n.208 (2007) (cornerstone) [hereinafter
Mosteller]; George R. Nock, The Point of the Fourth Amendment and the
Myth of Magisterial Discretion, 23 Conn. L. Rev. 1, 21 (1990)
(cornerstone).
2. Separation of powers. The Johnson case involved a question of the separation of power between the police seeking a warrant and the
magistrate reviewing it for legal sufficiency. Johnson, 333 U.S. at 14, 68
S. Ct. at 369, 92 L. Ed. at 440. In addition to Johnson, three other
United States Supreme Court cases have developed the neutral-and-
detached-magistrate requirement in the separation of powers context. In
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d
564 (1971), the state attorney general issued a search warrant even
though he was actively in charge of the investigation and was later to be
the chief prosecutor at trial. 403 U.S. at 450, 91 S. Ct. at 2028, 29
L. Ed. 2d at 573. The Supreme Court held that “there could hardly be a
more appropriate setting than this for a per se rule of disqualification
rather than a case-by-case evaluation of all the circumstances.” Id. The notion of separation of powers was further explored in
Shadwick v. City of Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed. 2d
783 (1972). In this case, the Supreme Court held that a court clerk who
was an employee of the judicial branch was sufficiently disassociated
from the role of law enforcement to issue arrest warrants for violators of
municipal ordinances. 407 U.S. at 350–51, 92 S. Ct. at 2123, 32
L. Ed. 2d at 789. The court noted that “[w]hatever else neutrality and
detachment might entail, it is clear that they require severance and 9
disengagement from activities of law enforcement.” Id. at 350, 92 S. Ct.
at 2123, 32 L. Ed. 2d at 789.
Similarly, in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct.
2319, 60 L. Ed. 2d 920 (1979), a town justice signed a warrant to search
an adult book store, and then accompanied police in order to make a
case-by-case determination of obscenity. 442 U.S. at 321, 99 S. Ct. at
2322, 60 L. Ed. 2d at 925. The Supreme Court held that by becoming part of the prosecution team, the magistrate could not be considered
neutral and detached for Fourth Amendment purposes. Id. at 327, 99
S. Ct. at 2325–26, 60 L. Ed. 2d at 929.
Johnson, Coolidge, Lo-Ji Sales, and Shadwick suggest that the
warrant requirement reflects “a preference for one sort of government
officer—a judge—over the far more competitively charged police officer”
when it comes to making the discretionary decisions that authorize
searches. Mosteller, 82 Ind. L.J. at 973 n.208. The issue posed by this
case, however, is whether a constitutional attack may be mounted on the
neutrality or detachment of a magistrate based on other grounds of bias
not rooted in separation of powers concepts.
3. Direct, personal, substantial, pecuniary interest. In one case, the United States Supreme Court demonstrated a willingness to consider
a constitutional challenge to the neutrality and detachment of a
magistrate on grounds other than traditional separation of powers. In
Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444
(1977), the police sought and obtained a warrant to search a home for
controlled substances from a justice of the peace. 429 U.S. at 246, 97
S. Ct. at 546, 50 L. Ed. 2d at 446. Under Georgia law, justices of the
peace were not salaried, but were compensated five dollars for every
warrant issued but nothing in cases where the warrant was denied. Id. 10
at 246, 97 S. Ct. at 546–47, 50 L. Ed. 2d at 446. In a per curiam
opinion, the Supreme Court invalidated the warrant on the ground that
the magistrate was not neutral and detached as required by the Fourth
Amendment. Id. at 249–50, 97 S. Ct. at 549, 50 L. Ed. 2d at 448.
Although the compensation scheme in Connally could have been
characterized as making the magistrate a paid agent of law enforcement
and therefore violating separation-of-powers principles, the Supreme Court did not rely on a separation-of-powers analysis. Instead, the
Supreme Court noted that the magistrate had “ ‘a direct, personal,
substantial, pecuniary interest’ ” in his decision to issue the warrant. Id.
at 250, 97 S. Ct. at 598, 50 L. Ed. 2d at 448 (quoting Bennett v.
Cottingham, 290 F. Supp. 759, 762–63 (N.D. Ala. 1968)). This “direct,
personal, substantial, pecuniary interest” had the potential of distorting
the magistrate’s judgment in a fashion that offended Fourth Amendment
values. Arguably, Connally opened the door to an analysis of the
neutral-and-detached-magistrate requirement that extends beyond
ensuring that the magistrate is not an agent of the state or otherwise
engaged in the prosecutorial process.
4. Incorporation of due process principles. Another important feature of Connally is its incorporation of due process principles into the
analysis of the Fourth Amendment. Specifically, Connally relied
primarily on the due process analysis provided in Tumey v. Ohio, 273
U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) and Ward v. Village of
Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972) in
resolving the Fourth Amendment question of whether a magistrate was
“neutral and detached.”
In Tumey, the court formulated a test of judicial impartiality for
due process purposes. In language often quoted, the Supreme Court 11
noted that the appropriate due process inquiry was whether the facts
revealed a situation
which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.
Tumey, 273 U.S. at 532, 47 S. Ct. at 444, 71 L. Ed. at 758.
The Tumey test was further applied by the Supreme Court in the
case of Ward, 409 U.S. at 57, 93 S. Ct. at 80, 34 L. Ed. 2d at 267. In
Ward, the Supreme Court held that an Ohio statute that authorized
mayors to sit as judges with respect to ordinance violations and traffic
offenses violated due process because a major portion of the village’s
income came from the fines, fees, and costs imposed in the mayor’s
court. 409 U.S. at 60, 93 S. Ct. at 83, 34 L. Ed. 2d at 271. The Supreme
Court concluded that this structure put the mayor in a position that
“ ‘might lead him not to hold the balance nice, clear, and true between
the state and the accused. . . .’ ” Id. (quoting Tumey, 273 U.S. at 534, 47
S. Ct. at 444, 71 L. Ed. at 759). But see Dugan v. Ohio, 277 U.S. 61, 48
S. Ct. 439, 72 L. Ed. 784 (1928) (holding where mayor had only limited
functions, the mayor’s relationship to the finances and financial policy of
the city was too remote to give rise to due process concerns when the
mayor acted as a judge and imposed fines on offenders).
Significantly, the Supreme Court in Connally did not simply
discuss Tumey and Ward, but expressly embraced the application of the
due process reasoning in Fourth Amendment cases involving challenges
to the neutrality and detachment of magistrates. The Connally court
noted that the facts of its case were not precisely the same as in Tumey
and Ward, but concluded that “the principle of those cases” is applicable 12
to the Georgia system for issuance of search warrants. Connally, 429
U.S. at 250, 97 S. Ct. at 548, 50 L. Ed. 2d at 448. In light of this
unambiguous language, the Supreme Court has incorporated the Tumey-
Ward due process principles into Fourth Amendment analysis. Thus,
although the defendant has not expressly raised a due process challenge,
his challenge to the magistrate’s impartiality based on due process
concepts is fully preserved by his Fourth Amendment attack. At least one due process case decided by the United States
Supreme Court subsequent to Connally suggests that certain grounds for
due process attack (and by implication any attack on the neutrality and
detachment of a magistrate under the Fourth Amendment), which do not
involve direct pecuniary interest of judges, may be narrow. In Aetna Life
Insurance Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823
(1986), the Supreme Court considered a case where Justice Embry of the
Alabama Supreme Court joined in a five-four opinion related to the
availability of a bad faith cause of action in Alabama when he
simultaneously was a plaintiff in an action against an insurance
company seeking to recover based upon a bad faith claim. 475 U.S. at
816–17, 106 S. Ct. at 1583, 89 L. Ed. 2d at 829. In Aetna, the Supreme Court rejected the notion that the general hostility of Justice Embry
against insurance companies that were dilatory in paying claims was
sufficient to raise a due process violation. Id. at 820, 106 S. Ct. at 1585,
89 L. Ed. 2d at 832. Noting that not all claims of judicial qualifications
involving “ ‘kinship, personal bias, state policy, [ ] [or] remoteness of
interest’ ” are constitutional in dimension, the court emphasized that
such bias or prejudice would rise to offend due process only in the most
extreme of cases. Id. at 820, 106 S. Ct. at 1584, 89 L. Ed. 2d at 831
(quoting Tumey, 273 U.S. at 523, 47 S. Ct. at 441, 71 L. Ed. 2d at 754). 13
The Supreme Court did, however, find a due process violation because
Justice Embry had a “direct, personal, substantial, pecuniary interest” in
the outcome of the case before the Alabama Supreme Court. That case
would set binding precedent in the bad faith case wherein Embry was a
named plaintiff. Id. at 822, 106 S. Ct. at 1586, 89 L. Ed. 2d at 833.
In an important concurring opinion, however, Justice Brennan
suggested in Aetna that the Court did not state that nonpecuniary interests could not arise to a due process violation. Id. at 829, 106 S. Ct.
at 1589, 89 L. Ed. 2d at 838 (Brennan, J., concurring). Justice Brennan
noted that in In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942
(1955), the Supreme Court held that due process disqualified a judge
who presided over a proceeding alleging contempt of a grand jury in
which the same judge was the grand jury’s only member. Aetna, 475
U.S. at 830, 106 S. Ct. at 1580–90, 89 L. Ed. 2d at 838. As noted by
Justice Brennan, the judge in Murchison, had no direct or indirect
pecuniary interest, but due process was nonetheless violated because of
the conflicting roles assumed by the judge. Id. Justice Brennan noted
that nothing in the Aetna opinion was inconsistent with Murchison’s
assertion that the interests which trigger a due process problem “cannot be defined with precision.” Id.
C. Lower Court Application of Fourth Amendment
Requirement of Neutral and Detached Magistrate Involving
Nonpecuniary Interests.
1. Overview. While the cases are relatively rare, several courts
have implemented the Connally framework in nonpecuniary settings. For
example, in State v. Burnam, 672 P.2d 1366, 1380 (Or. Ct. App. 1983), a
state court found that a personal interest prevented a magistrate from
being neutral and detached when the warrant related to the rape of his 14
clerk. In another case, State v. Edman, 915 A.2d 857, 867 (Conn. 2007),
another state court found that where a former court employee had
recently threatened to sue a judge over an employment dispute, that
judge could not function as a “neutral and detached magistrate”
regarding a search of the employee’s residence. A result similar to
Edman was reached in People v. Lowenstein, 325 N.W.2d 462, 467 (Mich.
Ct. App. 1982), where a magistrate previously prosecuted the defendant and was sued by the defendant was held not be neutral and detached.
These decisions by implication recognize the holding of Connally
that due process concepts apply to Fourth Amendment challenges to the
neutrality and detachment of magistrates. These cases also appear
consistent with the United States Supreme Court’s due process holding
in Murchison that constitutional challenges to the impartiality of a judge
may include nonpecuniary interests that must be evaluated in the
specific factual context of a given case.
The courts have been careful, however, to set clear limits to claims
that nonpecuniary interests defeat magistrate neutrality and detachment
under the Fourth Amendment. For example, mere past association or
knowledge of a defendant is generally not deemed to give rise to a constitutional infirmity. As was colorfully stated in United States v.
Heffington, 952 F.2d 275 (9th Cir. 1991),
Assuming that an appearance of partiality may lurk in the fact that judges and police officers in rural counties often know more about local criminal recidivists than their more urban colleagues, we are not prepared to disqualify small town judges on demand.
952 F.2d at 279. Similarly, past legal representation either on behalf of
or adverse to a defendant is not ordinarily grounds for attacking the
neutrality or detachment of a magistrate. United States v. Guthrie, 184 15
Fed. App’x 804, 807 (10th Cir. 2006) (holding that there was no Fourth
Amendment violation where magistrate represented, several years earlier,
son of owner of private residence to be searched); United States v. Outler,
659 F.2d 1306, 1312 (5th Cir. 1981) (holding no nexus between
magistrate’s prior prosecution of the defendant and subsequent
proceedings); State v. Mandravelis, 325 A.2d 794, 795 (N.H. 1974) (noting
that before becoming a judge the magistrate represented the accused on several charges, some of which resulted in conviction, and had
knowledge of defendant’s problems with drugs when younger). Remote
claims of bias also have little prospect of success in the Fourth
Amendment context. United States v. Czuprynski, 46 F.3d 560, 564 (6th
Cir. 1995) (holding that evidence of employment dispute thirteen years
earlier too remote). The above cases generally stand for the proposition
that there is no Fourth Amendment requirement for the perfect or best
“neutral and detached magistrate.” Heffington, 952 F.2d at 279–80.
The closest case to the facts presented here is State v. Slaughter,
315 S.E.2d 865 (Ga. 1984). In that case, a magistrate who issued a
search warrant in a drug case was also the attorney of record in a civil
case against the defendant. Slaughter, 315 S.E.2d at 866. After a productive search, the defendant was charged with drug offenses. Id.
The defendant claimed that his arrest on criminal charges provided
grounds for his impeachment in the civil case and hampered his ability
to vigorously participate in his defense. Id.
In Slaughter, the Georgia Supreme Court rejected the challenge to
the search warrant. Id. at 869–70. The court noted that the fact of
representation adverse to the defendant alone might be sufficient to show
that a magistrate is not neutral and detached in some cases it does not
necessarily require disqualification in all cases. Id. The court 16
emphasized, however, that it was quite possible that the magistrate did
not even recognize the name of the defendant when the search warrant
was issued. Id. at 870.
2. Role of canons of judicial ethics. The defendant claims that Iowa
Code of Judicial Ethics 3(D)(1) establishes the standard for determining
whether a magistrate is “neutral and detached” under the Fourth
Amendment. This canon provides that a judge should disqualify himself or herself in a proceeding if “the judge’s impartiality might be reasonably
questioned.” See State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). The
State challenges this approach, arguing that the demands of the Fourth
Amendment are fundamentally different than the canon requirements.
Some cases have held that the canons of ethics define the Fourth
Amendment standard for a neutral and detached magistrate.
Commonwealth v. Brandenburg, 114 S.W.3d 830, 832 (Ky. 2003) (holding
“appearance of impropriety” test is incorporated into Fourth
Amendment). Other cases, however, have suggested that the judicial
canons are not incorporated wholesale into Fourth Amendment analysis.
United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir. 1985).
We reject the wholesale incorporation of Canon 3(D)(1) for a number of reasons. The canons of judicial ethics are designed not to
protect individual defendants, but to protect the judiciary from charges
of partiality. Id. The canons of judicial ethics thus often extend further
than what is constitutionally required. Aetna, 475 U.S. at 821, 106
S. Ct. at 1585, 89 L. Ed. 2d at 832 (noting most matters relating to
judicial qualification do not rise to a constitutional level); Fed. Trade
Comm’n v. Cement Inst., 333 U.S. 683, 702, 68 S. Ct. 793, 804, 92 L. Ed.
1010, 1035 (1948) (same). A number of the canons of judicial ethics,
particularly those involving “appearances of impropriety,” are not bright- 17
line tests which are easy to apply in individual factual settings. The last
thing that Fourth Amendment law needs is another amorphous test
lacking in predictability.
Finally, the contours of what is constitutionally required are not
subject to the vagaries of rulemaking in the various jurisdictions. The
scope of constitutional protections does not depend upon whether a
jurisdiction has adopted certain model codes of judicial ethics. We thus conclude that while ethical guidelines may be instructive, they are not
determinative on the constitutional question of whether a particular
magistrate is neutral and detached under the Fourth Amendment.
D. Application of Fourth Amendment Principles. In light of the
above, we must now consider whether the facts of this case establish a
Fourth Amendment violation. The magistrate in this case was
simultaneously representing the putative father against one of the
targets of the search in a child custody proceeding. A successful search
of the home, which sought to find evidence of drug offenses, could make
the position of the mother more difficult in the child custody matter and
advance the position of the father.
The case is thus similar to Ward, where the mayor did not receive a direct benefit when he engaged in judicial acts adverse to defendants,
but the city that the mayor served was benefited by the mayor’s actions.
Ward, 409 U.S. at 57, 93 S. Ct. at 80, 34 L. Ed. 2d at 267. Moreover,
this case contrasts with situations where the magistrate was involved in
past representations of parties affected by the warrant decision, and thus
the decision could have no impact on the outcome of the prior
proceedings or where a challenge is based upon the mere acquaintance
of judge with the accused. Guthrie, 184 Fed. App’x. at 804; Outler, 659
F.2d at 1312; Mandravelis, 325 A.2d at 794. 18
We also believe this case is distinguishable from Slaughter, 315
S.E.2d at 865. Here, there is a clear nexus between the current
representation and the issuance of a search warrant. The issuance of
the warrant could lead to a drug charge against Destiny Fremont. A
drug charge in a child custody dispute is a serious matter and goes to
the core of the fundamental question in child custody matters—the best
interests of the child. Further, unlike in Slaughter, the magistrate in this case was aware of his representation adverse to one of the accused.
Under the unusual circumstances of this case, we conclude that
the magistrate had a nonpecuniary personal interest in the matter that
objectively cast doubt on his ability to hold the balance, nice, clear, and
true, between the state and the accused. Tumey, 273 U.S. at 532, 47
S. Ct. at 444, 71 L. Ed. at 758. A probable cause determination must be
made by a person unfettered by other potentially conflicting professional
commitments. Cf. People v. Payne, 381 N.W.2d 391, 395 (Mich. 1985)
(holding that magistrate’s status as a deputy sheriff rendered him
incapable of satisfying the neutral-and-detached requirement). The
magistrate’s simultaneous and conflicting dual roles rendered him
unable to meet the requirements of a neutral and detached magistrate under the Fourth Amendment. Id. As the court in Tumey emphasized, a
situation where one person “occupies two practically and seriously
inconsistent positions, one partisan and the other judicial, necessarily
involves a lack of due process of law in the trial of defendants charged
with crimes before him.” Tumey, 273 U.S. at 534, 47 S. Ct. at 445, 71
L. Ed. at 759.
We agree with the State that the defendant has made no showing
of actual prejudice in this case. In Tumey, Connally, and Murchison,
however, the Supreme Court did not require such a showing. These 19
cases stand for the proposition that some conflicts are just so fraught
with danger that a showing of actual prejudice is not required. We hold
that the facts in this case present such an occasion.
Because of this Fourth Amendment violation, the evidence seized
as a result of the execution of the warrant is subject to suppression.
Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S. Ct. 407, 416, 9
L. Ed. 2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981).
E. Avoidance of Exclusionary Rule through Harmless Error.
The State urges that the district court was correct when it held that
because there was ample probable cause for the warrant, any
constitutional infirmities in its execution are irrelevant.
Even if we were to agree with the State that there were ample
grounds to support a finding of probable cause based on the affidavit
presented to the magistrate in this case, that is not the end of the
matter. As noted by Justice Jackson in Johnson,
[a]ny assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.
Johnson, 333 U.S. at 14, 68 S. Ct. at 369, 92 L. Ed. at 440. An invalid
warrant is the equivalent of no warrant at all. Coolidge, 403 U.S. at 450–
51, 91 S. Ct. at 2030, 29 L. Ed. 2d at 574. As a result, Justice Jackson’s
admonition is fully applicable to this case and harmless error analysis
does not apply. Cf. Chapman v. California, 386 U.S. 18, 23 n.8, 87 S. Ct.
824, 828 n.8, 17 L. Ed. 2d 705, 710 n.8 (1967) (holding that harmless
error rule does not apply to charge of a partial judge). The lack of a 20
neutral and detached magistrate is a structural defect that defeats any
application of the harmless error doctrine.
F. Summary. We hold that when a magistrate approves an
application for a search warrant at a time when the magistrate knows he
or she is engaged in legal representation against a target of the search
warrant in a child custody matter which could be impacted in favor of
the magistrate’s client if the search is successful, a violation of the Fourth Amendment requirement that a magistrate be neutral and
detached occurs. Further, the doctrine of harmless error has no
application where a warrant is issued by a magistrate lacking the
required neutrality and detachment. We reach these conclusions under
the Fourth Amendment of the United States Constitution and
independently under Article I, section 8 of the Iowa Constitution.
We recognize that some may not regard this case as presenting an
egregious violation of the Fourth Amendment. As observed by Justice
Bradley over one hundred years ago in the seminal Fourth Amendment
case of Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746
(1886), abrogated on other grounds by Bellis v. United States, 417 U.S.
85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974):
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as it is consisted more in sound than substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
Boyd, 116 U.S. at 635, 6 S. Ct. at 535, 29 L. Ed. at 752. 21
IV. Conclusion.
The ruling of the district court denying the motion to suppress is
reversed and the conviction in this case is vacated. The case is
remanded to the district court for further proceedings.
REVERSED AND REMANDED.
All justices concur except Streit, J., who takes no part.