State v. Rees

139 N.W.2d 406, 258 Iowa 813, 1966 Iowa Sup. LEXIS 716

• Court: Supreme Court of Iowa
• Decided: January 11, 1966
• Docket: 51826
• Status: Published

Opinions

Snell, J.

This cause comes before us on certiorari to review an order'of the trial court'sustaining a motion to' suppress evidence claimed to have been secured by an unreasonable search and seizure. ' s '

The ease arose from criminal cause No. 20814 entitled State of Iowa v. Joseph W. Grant, Jr., in Linn District Court.

On August 15, 1964, a fíré was reported at 324 Seventh Street, S.E„ in Cedar- Rapids.- The-fire-department responded and extinguished the flames at 5:50 a.m. The building involved was being used as a printing plant operated by Citizen’s Publications,. Inc., lessee. One- Joseph W. Grant, Jr., the- defendant in the criminal action, had an interest in the business and occupied an apartment on the premises,

. Immediately after, the. fire had b.een .extinguished the- fire chief and his-employees, a city electrical inspector, a foreman of the lig'ht and power company, a deputy state fire marshal, an agent of the National Board of Fire Underwriters, and others entered the premises for. purpose-of investigating, the cause and origin of the fire. The investigation was prolonged and- the building reentered several times as a part of a continuing investigation. The defendant said no search warrant was ever requested or secured. However, there is no claim of harassment, abuse, subterfuge, force or even objection.

Based in part at least upon the evidence obtained by this extended investigation, the Linn County grand jury returned an indictment charging accused,with the crime of arson. He was arraigned and entered a not guilty plea. Prior to trial he filed the subject motion to suppress testimony of grand jury1 witnesses, Jesse G. Hunter (Chief of Cedar Rapids Fire Department), Kenneth A. Anderson (a fire department captain), James R. Kuta (city electrical inspector), Harry Billings (an employee of Iowa Light and Power Company); and M. D. Huffman (ah agent'in the Arson Department of the'National Board of Fire Underwriters).1 By his motion accused requested the court to suppress all evidence gained by these persons aá á result of their investigation in connection with the-fire. • ' .....

Pursuant to court order there was a hearing on the motion, at which time accused appeared and testified, the' State offering no evidence. The indictment, with minutes-attached,' is" made a part of the record for review. The trial court promptly entered order ‘sustaining the motion,-the material portion of which; provided -as follows: * *■ All evidence obtained,■ and all testimony of-witnesses- having to do with any search.of the premises conducted subsequent to 5.-.50 a.m. of August 15, 1964,. would be, therefore, found to be inadmissible, and such is the Order, Judgment and Ruling of the court upon the motion to suppress.”

The foregoing constitutes substantially the whole record before us.

I. Accused contends certiorari will not stand to test an order of court suppressing evidence in a criminal case. We do not agree. In Hohl v. Board of Education, 250 Iowa 502, 94 N.W.2d 787, we recognized a tendency to broaden the scope of certiorari where no appeal is permitted, and substantial justice would not be done unless review by certiorari be allowed.

In State ex rel. Fletcher v. District Court, 213 Iowa 822, 238 N.W. 290, 80 A. L. R. 339, we recognized the eommon-law right of the State to review by certiorari in criminal eases under certain circumstances.

A review of the law issue here presented is fully warranted. If this review were to be refused the State, if correct in the position taken, would be faced with a prosecution of the accused unjustly and irreparably deprived of material evidence. See State ex rel. Rankin v. Peisen, 233 Iowa 865, 868, 10 N.W.2d 645; State v. District Court, 248 Iowa 250, 253, 80 N.W.2d 555.

II. In urging illegal action by the trial court justifying this review, the State contends accused had no standing to challenge the search and seizure.

In Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L. Ed.2d 697, 78 A. L. R.2d 233, officers searched an apartment, seized some narcotics, and arrested Jones, there present, who was merely a friend and permissive guest of the absent occupant. Upon being criminally charged Jones moved to suppress the evidence claiming it was illegally obtained. The court held he was a person within the class entitled to privilege against unreasonable search and seizure, and had standing to challenge any evidence found or seized.

The record now before us discloses accused not only had an interest in the business operated upon the subject property, but also had and occupied an apartment somewhere on the premises. He was clearly a person aggrieved by the search. Furthermore, his indictment subsequent to the search, based in part at least upon the evidence so obtained, gave meaning to his status as a person aggrieved.

III. The statutory authority for investigation into the origin and cause of fires is found in chapter 100, Code of Iowa, 1962.

Section 100.1, subparagraph 2, requires an investigation by the state fire marshal.

Section 100.2 provides: “The chief of the fire department of every city or town in which a fire department is established * * * shall investigate into the cause, origin and circumstances of every fire occurring in such city * * * and determine whether such fire was the result of natural causes, negligence or design. The state fire marshal may assist * * * superintend and direct * # * »

Section 100.3 requires a report to the state fire marshal.

Section 100.9 provides that when the fire marshal is of the opinion that there is evidence sufficient to charge any person with arson or related offenses he shall cause arrest and prosecution and shall furnish to the county attorney all evidence.

Section 100.10 authorizes the fire marshal and his subordinates to enter any building and examine the same and the contents.

Section 100.12 authorizes entry and examination by the chief of the fire department.

Under these statutes the entry and examination by the officers was legal and mandatory.

What was done here is exactly what is required by the statutes, i.e., investigation, determination of opinion as to cause of the fire, prosecution and furnishing of evidence.

The trial court held that any evidence obtained after the date and time of the extinguishment of the fire would be inadmissible as having been the fruits of an unlawful search and seizure.

Here there was no unlawful search and seizure. What was done was pursuant to statute. We use the word unlawful as meaning without statutory support or in violation of statute. The question is, was it unreasonable and violative of constitutional limitations!

Statutes and ordinances authorizing civil inspections have long been acknowledged and sanctioned as incident to the police power of a state or municipality but they must be within constitutional limits; Hubbell v. Higgins, 148 Iowa 36, 46, 126 N.W. 914, Ann. Cas. 1912B 822; State v. Strayer, 230 Iowa 1027, 299 N.W. 912; Town of Grundy Center v. Marion, 231 Iowa 425, 435, 1 N.W.2d 677, and Davis, Brody, Wisniewski v. Barrett, 253 Iowa 1178, 1180, 115 N.W.2d 839.

In Frank v. Maryland, 359 U. S. 360, 365, 79 S. Ct. 804-808, 3 L. Ed.2d 877, 881, it was held that a health officer under the authority of a city ordinance could go on property at reasonable times without the aid of a search warrant for the limited purpose of an inspection to ascertain whether conditions are present which do not meet minimum standards and might be inimical to the health, welfare and safety of the public.

The -case recognizes two basic constitutional protections.

“(1) the right to be secure from intrusion into personal privacy, the right to shut the door on officials of the state unless their entry is under proper authority of law, and (2), and inti-' mately related protection is self-protection: the right to- resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual, information which may be used to effect a further deprivation of life or liberty or property. Thus, evidence of criminal action may not, save in very limited and closely confined situations, be seized without a judicially issued search warrant.” . . .. p ■

Mr. Justice Frankfurter traced the history of and necessity for certain inspections and held there was no violation of due process.

A well reasoned opinion clearly in point appears in Dederick v. Smith, 88 N. H. 63, 66, 184 A. 595, 597, 598, a New Hampshire case decided in 1936. Although prior to Mapp v. Ohio, discussed infra, the reasoning is not in conflict therewith.

Plaintiff sought an injunction restraining the state veterinarian “his aiders, abettors, agents and employees” from trespassing upon the property of plaintiff or from entering or breaking into her premises to test plaintiff’s cattle for bovine tuberculosis. The defendant had requested plaintiff’s permission to make the tests. Plaintiff had refused. Defendant with assistants forced entrance. Because of plaintiff’s objections extra trips for injection of testing materials were necessary. Defendant’s testing and actions were pursuant to statute.

Plaintiff claimed (1) defendant was -without authority to break, and- enter plaintiff’s barn over her protest or commit any trespass without judicial authorization. (2) Plaintiff- was untitled to a prior hearing. (3) ■ Defendant’s entry was .without due process of law, and (4) the statute authorizing defendant’s procedure was unconstitutional. The court said:

“The contention of .the plaintiff that the statute does not authorize an entry -without the-supplementary aid ■ of judicial process in the nature of a search warrant is without merit. On the contrary, the act was apparently designed to dispense with the necessity of judicial process in its enforcement. The statute, in effect, gives to the named officers a blanket search warrant which permits them to investigate all premises where cattle are kept. To the validity of this warrant the consent of the owner is not necessary and authority to use such force as may be necessary to effect an entrance to buildings which have been locked for the purpose of preventing an investigation is necessarily implied.

“The specific claim of the plaintiff that before such entry she ‘was entitled to a hearing as to whether or not the keeping by her of cattle that had not been tested for tuberculosis came. within the provisions of P. L., ch. 187, sec. 46, as amended, and was within the police power of the state,’ finds no support in the provisions of the statute or the established procedure, in regard to the issuance of search warrants. * *

The statute was approved as á valid exerdise of police power and its constitutionality approved. The statute was held reasonable and unobjectionable. ' ’ ‘ !

In discussing the 14th Amendment the court cited numerous authorities and said: . .

“ ‘Neither the amendment, broad and comprehensive as it is, nor any other amendment was designed to interfere with the power of the State, sometimes termed its “police power”, to prescribe regulations to promote1 the health, peace, mofáis,' edu cation and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity.’ Barbier v. Connolly, supra [113 U. S. 27, 31, 5 S. Ct. 357, 359, 28 L. Ed. 923].

“ Tt cannot be supposed that the States intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community.’ [Citations]

“The contention of the plaintiff that she had a constitutional right to notice and an opportunity to be heard before a judicial tribunal before her cattle could lawfully be tested without her consent is, therefore, without foundation. * * * [Loc. cit. page 71 of 88 N. H., page 600 of 184 A.]

“The statute explicitly gave to the defendant, as the lawful agent of the commissioner of agriculture, specific authority to enter the plaintiff’s ‘premises’ for the purpose of investigating the existence of infectious disease amongst her cattle. As above stated, we think that this necessarily included authority to break into any barn from which the plaintiff undertook to exclude him or his agent. This is in accordance with the general rule in such cases which has been stated, as follows: ‘One who is privileged to enter land’ pursuant to legislative duty or authority ‘is further privileged to break and enter a fence or other enclosure or a dwelling or other building if to do so is reasonably necessary or is reasonably believed by the actor to be necessary to accomplish the purpose of the privilege.’ ” (Loc. cit. pages 71 and 72 of 88 N. H., page 601 of 184 A.)

Plaintiff’s case was dismissed.

In State v. Mehlhaff, 72 S. D. 17, 29 N.W.2d 78, the Supreme Court of South Dakota considered the admissibility» of evidence unrelated to a search warrant. The defendant was convicted of larceny. On appeal one of his assignments of error related to search and seizure. The court took notice of both the Federal and State Constitutions and held that to constitute an unreasonable search and seizure two facts are essential, namely: (1) Entry by the witnesses upon defendant’s property, and their presence there must have been unlawful, and (2) discovery of the facts to which the witnesses testified must have been unlawful.

Defendant’s conviction was affirmed.

The reasoning of the court was sound and appropriate to the ease before us.

In the case at bar except for the fact that the.evidence was obtained pursuant to a statutory mandate instead of a search warrant there is not a word in the record to support the order of suppression.

IY. It is argued that when the investigation uncovered evidence of crime its investigatory status ended; that the statutory authority came to an end; that it became an accusatory search and could be supported only by a search warrant. We do not agree. The statutes clearly contemplate the discovery of evidence of crime, the arrest and prosecution of the person to be charged, and the delivery of all evidence, names of witnesses and all information to the county attorney. The statutory authority of the investigating officials did not terminate when evidence of arson was found.

We recently considered the changing concept during a search. See State v. Hagen, 258 Iowa 196, 205, 137 N.W.2d 895. In that ease the original entry was a trespass and was illegal. We said: “A search is good or bad when it starts and does not change character from its success. * * * An unlawful search taints all evidence obtained at the search or through leads uncovered by the search.” We held the initial entiy unreasohable and the search that followed unlawful.

In the ease at bar the contrary appears. The original entry was lawful and mandatory under the statute. No one contends that the original entry was unreasonable. As we said in Hagen, supra, it did “not change character from its success.” The entry did not become unlawful or the search become unreasonable just because evidence of arson was found. There is nothing in the record before us, except the finding of evidence of arson, to support a holding that there was a change from a lawful to an unlawful procedure.

The fact that an investigation becomes accusatory does not make it unconstitutional. It does go beyond proper limits when it extends1 into fields unrelated to the authorized investigation or is unduly prolonged over the objection of the accused. Not even a search warrant is good indefinitely. See section 751.12, Code of Iowa. The question is not before us but it may be that the defendant could have, after a reasonable time for completion, terminated the investigation by telling the investigators to! stay out. In that event further search and- seizure would have required a search warrant. However, the record is silent as to any search beyond the limits of the statutory mandate or over any objection, timely or otherwise, by the defendant.

V. We find nothing in the Constitution of the United States, the pronouncements of the United States Supreme Court, 'the Constitution of the State of Iowa or our pronouncements requiring the suppression of the evidence obtained during the search involved.

Amendment 4 to the Constitution of the United States 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.”

Amendment 5 protects, among other things, against coerced self-incrimination.

Amendment 6 to the Constitution of the United States provides for procedural guarantees and, among other things, the right to cqunsel.

Amendment 14 provides for due process.

ThePe are the basic constitutional provisions relating to criminal prosecutions.

Amendment 6 is not involved in the case before us.

Section 8, Article I, of the Constitution of the State of Iowa is- identical in its provisions and almost identical in its -wording to Amendment 4 to the Constitution of the United States. Other provisions in our State Constitution provide protection in a manner comparable-to.pur Federal Constitution.

■The question before us is the reasonableness of the search and seizure- of evidence.

The trial court apparently proceeded from the premise that a reasonable search and seizure can only proceed from the foundation of a search-warrant issued on an affidavit showing probable cause. We do not think that is what the Constitution says nor what the cases hold.

Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed.2d 1081, 84 A. L. R.2d 933, holds that evidence obtained by unconstitutional search is inadmissible. . The rights guaranteed by Amendment 4 are enforceable against the states by the Due Process Clause of Amendment 14. With, these basic rights of the people no one has any legitimate quarrel. However, neither the Constitution nor the cases decidéd thereunder say that there can never be a legal or reasonable search without a warrant. Neither do they say that evidence obtained during a legal investigation is inadmissible. The constitutional guarantees do protect against indiscriminate and unreasonable searches and against warrants issúed without probable cause.

It is the indiscriminate search and seizure without benefit of a warrant issued on affidavit of .probable cause that is proscribed. Nowhere do we find any.proscription against the use of evidence obtained during* a reasonable and legally authorized investigation. It is unreasonable aaxd illogical to say that when officers are carrying oix & legal or as in this case a mandatory ixxvestigation they must stop and get a search warrant before they can seize and later use the evidexxce for which they were makiixg their original ixxvestigation. '

The present ease is a far cry factually from Mapp.

In Mapp a reenforced group ¡of seven or more officers, in search of a person wanted for questioning on an unrelated matter aixd for possible evidence of an unrelated offense, forcibly entered a house over the objection of defeixdant, preteixded to have a warrant, manhandled the defendant aixd refused -to -permit defendant’s lawyer to enter or see defexxdant. Proceeding “in this high-handed manixer” the o-fficei’s searched ‘ thoroughly and ixxeidexxt thereto found some obscene materials for possession of which defendant was ultimately convicted. -

If there was anything to justify the “high-handed” procedure of the police it does not appear from, the opinion. The Supreme Court held the evidence so obtained inadmissible. With that we agree but it does not follow that there is anything sacrosanct about the words “search warrant”, the need therefor or the use thereof. The constitutional test is the reasonableness of the search and the propriety of the authority under which the search is made. The tests are strictly construed. If made under authority of a'search warrant the warrant must be based on an affidavit of probable cause. In other words, there must be some legal reason why the officers are there.

In the case at bar there was a legal reason why the officers were there. There had been a fire. An investigation was required by the statute. It was made. There is no claim that there was any violation of the statute.

VI. Amendment 4 to the Constitution of the United States protects against unreasonable search and seizure. It protects the right of privacy against unwarranted invasion. It prohibits the issuance of warrants except upon oath or affirmation showing probable cause. It creates no magic in the use of the words “search warrant”. A search warrant without the constitutional prerequisites is invalid but there is nothing in the Constitution that says there can be no valid search under authority other than a search warrant.

In State v. Shephard, 255 Iowa 1218, 1226, 124 N.W.2d 712, we said:

“ ‘The restrictions upon searches and seizures were obviously designed for protection against official invasion of privacy and the security of property. They are not exclusionary provisions against the admission of kinds of evidence deemed inherently unreliable or prejudicial.’ * * *

“The 4th and 14th Amendments are not designed to help a guilty party escape the consequences of his act. Their purpose is to protect a person and his property from arbitrary and unreasonable searches and seizures. It is the ‘right of privacy’ that is protected.”

What is proscribed by the amendment is not the seizure of incriminating evidence but the unreasonable invasion of the right of privacy. If the search is unreasonable and without authority then in that event seizure of the evidence is without authority and the evidence is inadmissible.

In the case at bar the officers had a right to investigate. There is nothing unreasonable about searching for the cause of a fire. The evidence found was the work product of a reasonable and statutory investigation. When evidence is so found it is not necessary for officers to desist from further action and wait for a search warrant before they may pick up what they have found, or testify as to what they have seen, or complete their investigation.

The test is the reasonableness of the search under proper authority and not the source of the authority under which the search is made. A reasonable search mandatory under a legislative enactment is clothed with as much dignity and is entitled to as much consideration as a search under a warrant issued by a Justice of the Peace. It would be illogical to say that the evidence would have been admissible if seized under a search warrant but inadmissible if seized under' the statute. This assumes, of course, that the entry was reasonable and legal and no one contends otherwise. Within the constitutional limitations as to reasonableness the legislature may and has authorized such an investigation as was made here.

VII. A confession obtained by police interrogation when the accused is denied the right to counsel is inadmissible. Escobedo v. State of Illinois, 378 U. S. 478, 492, 84 S. Ct. 1758, 1766, 12 L. Ed.2d 977, 987. The case involved the right to counsel and the protection against self-incrimination under Amendment 5. The interrogation was accusatory and the accused’s rights under Amendment 5 were violated. The distinction between a routine investigation and an accusation under Amendment 5 is not applicable to the right to privacy under Amendment 4. Under Amendment 4 if the search is reasonable and lawful the fact that it becomes accusatory by the finding of incriminating evidence does not make it invalid.

Escobedo, supra, is not relevant to our problem, except to note the distinction between the rights involved and what was there said. “Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime/ [Citation] ' by gathering information from witnesses and by other ‘proper investigative efforts.’ [Citation]”

Vlll. The burden of demonstrating that evidence has been illegally procured normally devolves upon the accused in a motion to- suppress such evidence. State v. Shephard, supra, loc. cit. 1222 and cases cited. We are not now considering questions of consent involved in the Shephard case or voluntariness of confessions involved in State v. Holland, 258 Iowa 206, 138 N.W.2d 86. What we have here is a case where'evidence has been suppressed because obtained as a part of a statutory investigation rather than •'under a search warrant. The basic premise or foundation stone supporting a search under a warrant is an affidavit of probable cause. The Constitution so provides. The whim, caprice or curiosity of officers will not suffice. In other words, thé reason'must appear and the search must be reasonable.' That doe's not make procedure under a document called a search warrant- exclusive.

The foundation" for procedure after a'fire is the statute. The legislature has said that when there has been-a fire there shall'be an investigation. There is nothing in the Constitution that' says that the' legislature may' liot, within the' limits of reasonableness and by positive mandate,- direct a search upon the happening of an event of such public interest as a fire. The fire is the reason'and the -statute is the’ authority for-the procedure.

It is unrealistic and unsound to say that when' a constitutionally reasonable investigation or search has been directed by the'legislature-upon the happening cif'"a certain event, i'.e., a fix-e, there' 'must also be a search warrant that can only 'be' issued upon affidavit of probable cause.

It is xiot logical to saythat a nxandatory exxtry'and examination of the cause of a firé is unreasoxxable. The fact that the statutory investigation may uncover evidence' of a'crime'does xxot mean that further search becomes constitutionally unreasonable or that evidence obtaiixed thereby is inadmissible.'

' It is unlikely that before beginning the statutox-y investigation there would be information as to “probable cause” sufficient to support a search warrant. The Constitution does not say that there can be no investigation without “probable cause” as to a specific crime when “probable cause” can only be determined by investigation or that when probable cause develops the right to search ends. That would draw too fine a line between investigation and search.

IX. In the case at bar the officers were acting under explicit statutory authority. "We find nothing unreasonable or violative of constitutional rights in the statutory procedure. There is no claim of any unnecessary or arbitrary force, subterfuge, coercion or objection.

The accused did not meet the burden of demonstrating that the evidence had been illegally procured.

There is no showing that the search was violative of any constitutional rights or that the evidence is inadmissible on the grounds urged.

The writ of- certiorari is sustained, the order of the trial court suppressing the evidence is reversed and the case is remanded to the trial court for entry of an order in harmony herewith.

Writ, sustained and case remanded.

Garfield, C. J., and Moore, Stuart and Mason, JJ., concur. Rawlings, Larson, Thornton and Becker, JJ., dissent.