State v. Walker

352 N.W.2d 239, 1984 Iowa Sup. LEXIS 1173

• Court: Supreme Court of Iowa
• Decided: June 13, 1984
• Docket: 83-541
• Status: Published

Opinions

WOLLE, Justice.

Defendant Michael Lee Walker was a juvenile seventeen years of age when he was arrested on suspicion of burglarizing a drug store. Less than three hours after he was arrested, and before either of his parents had visited with him, he gave the police officers an uncounseled signed incul-patory statement. Before trial in the district court on a charge of second degree burglary, defendant moved to suppress the statement and certain physical evidence which the police had seized from his residence pursuant to a search warrant. The motion to suppress was overruled, the signed statement and physical evidence were introduced at trial, and defendant was convicted and sentenced to a term of incarceration not to exceed ten years for burglary in the second degree. See Iowa Code §§ 713.1, 713.5, 902.9(3) (1981). In this direct appeal defendant contends that the inculpatory statement and physical evidence should have been suppressed because the police officers failed to meet the statutory requirements for obtaining a valid waiver of defendant’s right to counsel. Defendant also contends that the court erred in refusing to submit criminal trespass as a lesser included offense in its instructions to the jury.

We conclude that defendant’s uncoun-seled statement should have been suppressed, and we therefore reverse and remand.

On the morning of January 31, 1981, the manager of a drug store in Spencer, Iowa discovered that someone had fallen through the false ceiling of the store. Footprints led to the pharmacy section of the store, but the manager found nothing missing. He did, however, find a pair of eyeglasses with one lens missing.

Police officers traced the eyeglasses to defendant, using a prescription showing him to be the likely owner, and defendant was arrested. Our disposition of this appeal is controlled by what occurred at the police station between 3:41 p.m. on January 26, 1983 when defendant was arrested and 6:00 p.m. that evening when he gave the officers his uncounseled written statement.

The arresting officer was aware that the defendant was only seventeen years old. The defendant was taken to the police station and placed in a conference room where he waited while the police attempted to contact the defendant’s mother. The officer made approximately ten phone calls in an attempt to contact the mother, who had sole custody of defendant by reason of a dissolution decree. The officer learned that the mother was in Sioux City and called defendant’s grandparents and the department of social services in an effort to locate her. At 4:30 p.m., less than an hour after he was arrested, the police officers obtained from defendant a written waiver of his right tp counsel which included the following language:

You cannot give up your right to have a lawyer with you to advise you during questioning by yourself. Your parents must also agree. They must do that in writing. Do you understand? Any questions?

Between 5:00 p.m. and 5:15 p.m., Officer O’Hara contacted the defendant’s father at the restaurant where he worked and asked him if he knew where the defendant’s mother was. The officer informed the father that his son had been arrested but did not tell him what the charge was or that the father had a right to speak and confer with his son. The father and the police officer disagreed as to one matter; the father testified that he told the officer he would come to the station shortly after 7:00 p.m., while the officer testified that the father merely told him he would be there after work without specifying a time.

Within an hour of that conversation with the defendant’s father, and before either the mother or father had made any contact with defendant, the police officers obtained from defendant a written signed confession.

I. Defendant’s Uncounseled Inculpa-tory Statement.

Defendant challenges the validity of his waiver of the right to counsel on statutory rather than constitutional grounds. Iowa’s Juvenile Code implements and goes beyond the constitutional right to counsel provided for juveniles by explaining the stages of proceedings when a child may be represented, the effect of denial of the right to counsel on statements offered in evidence, and the specific methods by which police officers may obtain a waiver of the child’s right to counsel. Iowa Code section 232.11(l)(a) provides in part:

A child shall have the right to be represented by counsel... [fjrom the time the child is taken into custody for any alleged delinquent act that constitutes a serious or aggravated misdemeanor or felony under the Iowa criminal code, and during any questioning thereafter by a peace officer or probation officer.

Iowa Code section 232.45(9) provides that statements made by the child while in custody are admissible in evidence in subsequent criminal proceedings “provided that the statements were made with the advice of the child’s counsel or after waiver of the child’s right to counsel.” The statute thereby adopts a per se exclusionary rule when a child has not effectively waived its right to counsel. In the Interest of J.A.N., 346 N.W.2d 495, 498 (Iowa 1984); State v. Aldape, 307 N.W.2d 32, 35 (Iowa 1981) (dictum).

In this case defendant stakes his challenge to the validity of his waiver of counsel on Iowa Code section 232.11(2), which provides in pertinent part:

The child’s right to be represented by counsel under subsection 1, paragraph “a" shall not be waived by a child less than sixteen years of age without the written consent of the child’s parent, guardian, or custodian. The waiver by a child who is at least sixteen years of age is valid only if a good faith effort has been made to notify the child’s parent, guardian, or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child.

It is important to note that the statute distinguishes between juveniles less than sixteen years of age and juveniles, like defendant, who are at least sixteen. For children less than sixteen, the statute provides that no waiver of counsel is valid unless accompanied by the written consent of the parent. See In the Interest of J.A.N., 346 N.W.2d at 499 (“The legislature has demanded that painstaking care must be taken to obtain parental consent before questioning a juvenile. The child can be expected to rely on tfte judgment of the consenting parent.”). For the child who is at least sixteen years of age, the statute replaces written parental consent with the requirement that good faith efforts be made to notify the parent, guardian, or custodian and to provide the notified person with four explicit facts about the juvenile’s circumstances: (1) “that the child has been taken into custody and” (2) “of the alleged delinquent act for which the child has been taken into custody,” (3) “the location of the child, and” (4) “the right of the parent, guardian or custodian to visit and confer with the child.” Iowa Code § 232.-11(2) (1983).

Defendant contends that the state failed to show that the officers made a good faith effort to inform defendant’s father of all four facts specified in the statute, and we agree. When the father was contacted by the police officer, he was told that defendant was in custody at the police station, but that message satisfied only the first and third informational requirements. The father was not told the nature of the alleged delinquent act — burglary—nor was he told of his right to visit and confer with the defendant. No circumstances were present here which excused the officers from providing the defendant’s father with all of the information required by the statute.

In denying defendant’s motion to suppress, the trial court found that the State had met its burden to prove by a preponderance of the evidence that the police officers had made a good faith effort to notify both of defendant’s parents. The trial court specifically excused the police officer’s failure to tell the father the nature of the alleged delinquent act, relying on circumstances confronting the father when he received the officer’s phone call. The father told the officer he was busy at work and would be unable to come right to the station. He may also have failed to tell the officer precisely when he would come to the station.

Even when these facts are viewed in the light most favorable to the State, we find the circumstances confronting the father inadequate to excuse the officer’s failure to provide to the father all of the information which the statute requires. The statute listed very specifically the 'four items of information which the officers must make a good faith effort to convey to the contacted parent. In enacting this statute, our legislature apparently believed that each part of the four-part message would tend to impress upon a parent the importance of going to the side of the child and giving the child parental advice. Far from excusing the officer’s inadequate message, the circumstances then confronting defendant's father made it even more imperative that the officer fully notify him concerning the child’s circumstances. We certainly cannot presume that the father would not have gone to his child’s side if he had fully understood both the seriousness of his son’s situation (being arrested and accused of burglary) and what he as a parent had a right to do (visit and confer with the child).

The State argues that since “good faith effort” is not defined in the Iowa Juvenile Code, we should define that phrase to mean a subjective honest intention to abstain from taking unfair advantage. We need not here decide the outer limits of what “good faith effort” means in the statute, for at a minimum the statute as a whole requires both a good faith effort to contact a parent, guardian or custodian and a good faith effort to furnish the contacted person with all four parts of the substantive message specified in the statute. The notification requirements of Iowa Code section 232.11(2) were enacted in 1978. 1978 Iowa Acts eh. 1088. Even before its enactment, we had emphasized “the importance of securing for the minor under interrogation the advice and consultation of a parent, guardian, custodian, adult friend, or lawyer,” stating that “[f]ai-lure to provide such support will throw a deep shadow of judicial distrust over the resulting confession.” In re Thompson, 241 N.W.2d 2, 5-6 (Iowa 1976).

Our legislature has now explicitly provided a four-part message of notification for contacted parents. The statute requires that peace officers make a good faith effort to deliver that message to the contacted parent. We will not dilute the contents of that statutory message in circumstances like those confronting defendant and his father in this case. There is not substantial evidence in this case that the officer made a good faith effort to provide defendant’s father with this information our statute requires. Consequently, the State did not meet its burden of proving by a preponderance of the evidence that the officers complied with the statute and obtained a valid waiver of counsel. See State v. Aldape, 307 N.W.2d at 36.

We also find that defendant did not validly waive his right to counsel because of the specific language contained in the waiver form which he read and signed. Apparently the form was designed only for juveniles under the age of sixteen years. It specifically and unequivocally stated that defendant could not give up his right to have a lawyer unless his parent also agreed in writing. The language of that form gave defendant the right which the statute provides only for juveniles under the age of sixteen years. A waiver for those juveniles is invalid “without the written consent of the child’s parent, guardian or custodian.” Iowa Code § 232.11(2) (1983). Defendant read the form before signing it, and it was also read to him. When asked if he understood his rights, the defendant replied that he did. We must infer that he thereby understood he had a right which could not be waived unless his parent also waived, and neither parent ever signed such a waiver.

Finally, the circumstances here suggest that the officers moved more rapidly than was reasonably necessary to obtain from defendant a signed waiver of counsel and the subsequent signed statement. The waiver was signed less than one hour after the arrest, the statement less than two hours later. Although the Juvenile Code only explicitly mentions a good faith effort to notify the parents, the statute implicitly requires that the officers wait a sufficient period of time after contact is made so the contacted 'parent may have a reasonable opportunity to come to the station and consult with the child before interrogation begins. See Stokes v. State, 371 So.2d 131, 132 (Fla.Dist.Ct.App.1979).

Defendant’s inculpatory statement should have been suppressed and excluded from evidence at the trial because the State did not establish that it had obtained a valid waiver of his statutory rights.

II. Validity of the Search Warrant.

After the police officers obtained defendant’s written statement, they obtained from a local magistrate a warrant to search the defendant’s residence where he lived with his mother. Included in the evidence presented to the magistrate was a reference to the confession. The officers took the defendant to his residence and there seized the missing lens from his eyeglasses and a pair of shoes which defendant said he was wearing on the night in question.

Defendant moved to suppress the use of the lens and shoes as a part of the State’s evidence, contending that, without reference to the invalid confession, the evidence in the application for a search warrant was insufficient to establish probable cause. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963); State v. Williams, 285 N.W.2d 248, 256 (Iowa 1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980); State v. Cook, 330 N.W.2d 306, 312 (Iowa 1983) (dictum). On examination of the sworn application for the search warrant, however, we find that the information presented to the magistrate was sufficient, even without the reference to a confession, to establish probable cause for issuance of the warrant. See State v. Kase, 344 N.W.2d 223, 226 (Iowa 1984). The affidavit showed that the eyeglasses found in the drug store matched an identical pair purchased by the defendant, and it disclosed that a reliable informant had told the police the defendant was seen after the night in question with bruises and bumps consistent with the type that a person would receive in a fall from the drug store’s false ceiling. We therefore affirm the trial court’s denial of defendant’s motion to suppress use at trial of the lens and shoes obtained from defendant’s residence pursuant to the search warrant.

III. Trespass as a Lesser Included Offense.

Defendant also assigns as error the trial court’s refusal to submit criminal trespass as a lesser included offense to the charge of burglary. Iowa Code section 713.1 (1983) provides that burglary can be committed in three alternate ways. See State v. Wales, 325 N.W.2d 87, 88 (Iowa 1982). Criminal trespass is a lesser included offense of the entering alternative but not of the breaking alternative which the State elected to rely on at trial. Iowa Code § 716.7(2) (1983); see State v. Chase, 335 N.W.2d 630, 634 (Iowa 1983); State v. Wales, 325 N.W.2d at 89. The State argues that the trial court correctly refused to instruct on criminal trespass as a lesser included offense because defendant was tried only on the breaking alternative.

Although one part of the trial court’s marshalling instruction explaining what the State was required to prove to establish burglary did inadvertently refer to “break or enter,” neither party objected to that instruction. We need not here decide whether the failure to instruct on criminal trespass when there was that one reference to “enter” constituted reversible error, because we expect that on retrial there will be no such reference to the entering alternative of the crime of burglary.

The conviction must be reversed and the case remanded because the trial court should not have admitted in evidence defendant’s uncounseled confession which had not been validly obtained.

REVERSED AND REMANDED.

All Justices concur except REYNOLD-SON, C.J., and SCHULTZ and LARSON, JJ., who dissent.