State v. Short, 12–1150.

• Citation: 851 N.W.2d 474
• Decision Date: 18 July 2014
• Docket Number: No. 12–1150.,12–1150.
• Parties: STATE of Iowa, Appellee, v. Justin Dean SHORT, Appellant.
• Court: United States State Supreme Court of Iowa

851 N.W.2d 474

STATE of Iowa, Appellee,

v.Justin Dean SHORT, Appellant.

No. 12–1150.

Supreme Court of Iowa.

July 18, 2014.

Mark C. Smith, Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, Darin J. Raymond, County Attorney, for appellee.

APPEL, Justice.

In this case, we consider the validity of a warrantless search of a probationer's home by police officers. The defendant was charged with burglary and theft. The defendant filed a motion to suppress, challenging the admissibility of evidence obtained from the search. The defendant contended the search warrant was invalid because it inaccurately described the house to be searched and because an alteration of the warrant based upon a telephonic conversation with the issuing judge was invalid. The district court overruled the motion to suppress. For the reasons expressed below, we reverse the district court and remand the case for further proceedings.

I. Factual Background and Proceedings.

On May 18, 2011, a Plymouth County deputy sheriff responded to a report of a burglary of a home. The deputy met with the resident who reported a number of missing items, including two televisions, two jewelry boxes with assorted jewelry, a gift card to Minerva's Restaurant, and a camera. The deputy's investigation revealed that a doorjamb had been broken when the door was apparently forced open. There was a partial shoe print on the outside of the door and partial fingerprints on the door. Tire impressions were found going from the concrete driveway into the grass along the side of the house.

Law enforcement contacted Minerva's Restaurant and advised that a $100 gift card had been stolen. Based on their inquiries, sheriff deputies obtained a receipt from the restaurant that was generated from the gift card's use. Justin Short's signature appeared on the receipt. Deputies also interviewed the waitress and the manager, who identified a photo of Short as the person who used the card.

Deputies received an informant's tip that the car of Short's girlfriend, Leya Lorenzen, was parked at 2721 Jones Street in Sioux City. Law enforcement obtained a search warrant for that address from a district associate judge in Le Mars. The application identified the place to be searched as a “single story wood frame home white and yellow in color” with a “single stall garage.” Local police assisting in the search, however, later reported that Lorenzen did not reside at the location identified on the warrant. After law enforcement inquired at the address identified on the warrant, the resident who answered explained that he did not know Lorenzen or Short but stated that there was an apartment next door and “people are coming and going from there all the time.” The new location was a two-story house that had been converted into four apartments. Deputies then contacted the owner of the apartment building and learned that Lorenzen had rented an apartment at 2723 1/2 Jones Street, which was the upstairs apartment.

At this point, law enforcement called the judge who issued the original search warrant and asked if they should return to Le Mars to get another search warrant. According to the testimony of the law enforcement officer at the hearing on the motion to suppress, the district associate judge gave law enforcement verbal authorization to change the address on the warrant and “to note that this was done telephonically through the authority of” the issuing judge. Law enforcement scratched out the address on the original warrant and wrote in the new address. Law enforcement also scratched through the word “yellow” describing the house, however they left the description of the place to be searched as “a single story wood frame home.” No statement was added to the original warrant indicating that it had been altered pursuant to verbal authorization of the court.

Law enforcement then conducted a search of the apartment at 2723 1/2 Jones Street. Upon executing the search, police found two flat screen televisions, two jewelry boxes taken in the burglary, the stolen Minerva's Restaurant gift card, and a receipt in Short's wallet. After receiving Miranda warnings, Short admitted that he kicked in the door of the residence, took the missing items, and pawned some of the items at a local pawn shop. Short was subsequently charged with burglary and theft.

During the investigation, law enforcement learned that Short was on probation related to other crimes. Although probation officials were contacted in connection with the burglary investigation, they did not participate in the search. It is undisputed that the search was not a probationary search, but was instead an investigatory search by law enforcement related to new crimes.

Short sought to suppress all evidence obtained as a result of the search. In his brief to the trial court, Short claimed he had a constitutionally protected expectation of privacy in the apartment; his probation agreement did not give officers unfettered access to search; the altered search warrant violated Iowa Code section 808.3 (2011), which requires that search warrant applications be in writing; and the statements and evidence gathered during the search should be suppressed as fruit of an illegal search. The State raised a number of issues in its resistance, including claiming that the search warrant was valid even after altered, that exigent circumstances were present to support the search, and that the waiver in Short's probation agreement authorized law enforcement personnel to search the apartment without a warrant. In its brief, however, the State solely argued that the search was lawful based on reasonable suspicion that Short was involved in the crime.

The district court entered a detailed ruling. It found that the application for the original warrant was not tainted, but that the description of the place to be searched in the original warrant was inadequate. In so ruling, the district court noted that the warrant described a single story house with a garage stall and not a two story house divided into apartment units with a parking lot in back rather than garage stalls. The description in the altered warrant cured some of the problems, according to the district court, but it held that the telephonic authorization to alter the warrant was contrary to Iowa Code section 808.3. The district court further found that no exigent circumstances existed to support an exception to the warrant requirement. On the issue of whether a warrantless search of a probationer could be upheld in this case, however, the district court held in favor of the State. The district court reasoned that the officers had reasonable suspicion to believe that stolen property would be located at the residence, but that in order to be valid, the search must have been within the contemplation of the probation agreement. As a result of the ruling, the evidence obtained during the search was admitted into evidence and Short was convicted.

Short appealed. We transferred the matter to the court of appeals. The court of appeals held that the claim under article I, section 8 of the Iowa Constitution was adequately preserved in the district court. On the merits the court found that the search of a probationer based upon reasonable suspicion of criminal activity and based upon the limited scope of the search was valid under article I, section 8 of the Iowa Constitution.

We granted further review. We now vacate the decision of the court of appeals, reverse the decision of the district court on the motion to suppress, and remand the case to the district court.

II. Standard of Review.

Claims that the district court failed to suppress evidence obtained in violation of the Federal and Iowa Constitutions are reviewed de novo. State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). The same is true of claims of ineffective assistance of counsel. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

III. Discussion.A. Positions of the Parties.

1. Short. Short challenges the denial of the motion to suppress on appeal. Short first asserts that he had a constitutionally protected interest in the apartment, the district court correctly determined that the original search warrant lacked specificity, the district court correctly determined that the alteration to the warrant pursuant to telephonic authorization was invalid, and there were no exigent circumstances to support a warrantless search.

After addressing these issues, Short focuses on the fighting issue in this case, namely, whether the warrantless search of a probationer's home by law enforcement officers violates article I, section 8 of the Iowa Constitution. Short claims that in State v. Ochoa we emphasized the property rights underpinning the sanctity of the home and highlighted that our cases underscore the high importance of a warrant issued by a neutral and detached magistrate when a home search was involved. 792 N.W.2d 260, 284–85 (Iowa 2010). Short recognizes that the Ochoa court did not address “whether individualized suspicion amounting to less than probable cause may be sufficient in some contexts to support a focused search,” id. at 291, but argues that the reasoning in Ochoa suggests that a warrant requirement for a home invasion by law enforcement is required, see id. at 287–91.

Short further relies on State v. Cullison, 173 N.W.2d 533 (Iowa 1970). In that case, we invalidated a warrantless search of the home of a parolee. Id. at 540–41. According to Short, the holding in Cullison, namely, that the search and seizure rights of a parolee are not reduced due to his or her status, id. at 538–39, “remained untouched” by Ochoa and applies with equal force to probationers. Short also notes that the search in this case was not a probationary search, but was instead a search by general law enforcement officers, a fact that further undermines the...