Bousman v. Dist. Ct. for Clinton County

• Decision Date: 05 July 2001
• Docket Number: No. 99-1548.,99-1548.
• Citation: 630 N.W.2d 789
• Parties: Keith BOUSMAN, Plaintiff, v. IOWA DISTRICT COURT FOR CLINTON COUNTY, Defendant.
• Court: Iowa Supreme Court

630 N.W.2d 789

Keith BOUSMAN, Plaintiff, v. IOWA DISTRICT COURT FOR CLINTON COUNTY, Defendant.

No. 99-1548.

Supreme Court of Iowa.

July 5, 2001.

John J. Wolfe of Wolfe Law Office, Clinton, for plaintiff.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Michael E. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for defendant.

TERNUS, Justice.

Keith Bousman filed an appeal, which we treat as a petition for writ of certiorari, from a district court decision denying his motion to quash a prior court order directing him to submit to a nontestimonial identification procedure. Bousman claims that the court's order for nontestimonial identification violated his constitutional protection against unreasonable searches and seizures and was issued in contravention of the authorizing statute, Iowa Code chapter 810 (1999). The State contends preliminarily Bousman has no right to appeal this order under Iowa Code section 814.6(1) and discretionary review under section 814.6(2) is inappropriate. The State also asserts that the order for nontestimonial identification did not violate constitutional provisions or chapter 810.

Upon our consideration of the record and the arguments of the parties, we conclude that the present appeal should be treated as a petition for writ of certiorari. Considering the appeal as an original certiorari action, we grant the writ and proceed to the merits. On the merits of Bousman's claim, we hold that the court's order for nontestimonial identification was not supported by "reasonable grounds to suspect" that Bousman committed a felony, as required by Iowa Code section 810.6(2) and the Fourth Amendment. Therefore, we sustain the writ of certiorari and remand for entry of an order quashing the district court's order requiring Bousman to submit to a nontestimonial identification procedure.

I. Background Facts and Proceedings.

On March 31, 1999, Emily Shaver notified Clinton police that her car had been burglarized. Someone had broken the passenger side window and removed several items from the car. The investigation revealed that two blank checks, moved from their normal position, were stained with blood.

On August 27, 1999, the county attorney's office applied for a nontestimonial identification order directed to Keith Bousman. See Iowa Code ch. 810 (Iowa's nontestimonial identification statute). In the application, the county attorney requested that the court order Bousman to submit to a swabbing of his mouth for a saliva sample to be used for purposes of DNA analysis to aid in the investigation. The county attorney supported this application with an affidavit, signed by an investigating officer.

The district court granted the county attorney's application and issued an order directing Bousman to appear at the Clinton police department to have "oral swabs taken from the mouth." Bousman filed a motion to quash, alleging that the reasons stated for requiring him to submit to the procedure were "inadequate" and violated his right against unreasonable searches and seizures. The district court denied Bousman's motion, finding that the application established reasonable grounds to suspect Bousman "committed or aided and abetted the commission of a felony." Bousman appealed.

II. Does Bousman Have a Right of Appeal From the District Court's Order Denying His Motion to Quash?

The initial issue before this court is whether Bousman had a right to appeal the district court's ruling on his motion to quash the order for nontestimonial identification. The State contends that the nontestimonial identification order is quasi-criminal in nature and, therefore, the law governing criminal appeals applies. It asserts that Bousman's attempted appeal from the court's ruling on the motion to quash is not a permitted criminal appeal as of right authorized by Iowa Code section 814.6(1). The State argues, in addition, that discretionary review should not be granted. See Iowa Code § 814.6(2)(e) (allowing discretionary review of "[a]n order raising a question of law important to the judiciary and the profession").

Iowa Code section 814.6 grants "the defendant" a right of appeal from certain specified judgments and the opportunity for discretionary review of other designated orders. Chapter 814 is part of the criminal procedure code. See Iowa Code § 801.1 ("Chapters 801 to 819 shall be known and may be cited as the `Iowa Code of Criminal Procedure.'"). Therefore, the term "defendant," as used in the context of chapter 814, refers to the "accused" in a criminal case. Black's Law Dictionary 429 (7th ed.1999). Although it is possible for a "defendant" to be the subject of a nontestimonial identification order,¹ Bousman does not fall within that class of persons. Bousman has not been accused of or charged with any crime. See Webster's Third New International Dictionary 14 (unabr. ed.1993) (defining "accused" as "one charged with an offense; esp: the defendant in a criminal case"). He is not and may never be a "defendant." He is merely a suspect. See id. at 2303 (defining "suspect" as "one suspected of a crime"). Therefore, section 814.6 does not govern Bousman's right or opportunity to appeal.

On the other hand, a proceeding for issuance of a nontestimonial identification order is clearly not civil so as to trigger the rules allowing appeal of final judgments or decisions in civil cases. See generally Iowa R.App. P. 1 (providing for appeals in civil cases). Proceedings under chapter 810 can be initiated only by a person who has been arrested for or charged with a criminal offense, see Iowa Code § 810.2, or, as in this case, by a prosecuting attorney during the investigation of a criminal offense, see id. § 810.3. We agree with the State that such proceedings are quasi-criminal, if not criminal, in nature. See generally id. § 801.1 (stating that chapter 810 is part of code of criminal procedure); 1981 Iowa Acts ch. 206, §§ 2-15 (described as a bill "concerning certain criminal procedures" (emphasis added)) (codified at Iowa Code §§ 810.3-.16 (1983)). Therefore, the rules governing appeals in civil cases do not apply.

The fact that this case does not fall within the rules for civil cases or the statute giving criminal defendants the opportunity for appellate review does not mean that Bousman is without a remedy. In City of Janesville v. McCartney, 326 N.W.2d 785 (Iowa 1982), we allowed review of a district court ruling by certiorari where neither rule nor statute provided for any other manner of review. McCartney, 326 N.W.2d at 786. If the present appeal should have been filed as an original certiorari proceeding, we may consider the appeal "as though the proper form of review had been sought." Iowa R.App. P. 304. Therefore, we will consider Bousman's notice of appeal as a petition for writ of certiorari and proceed to determine whether he is entitled to appellate review on this basis.

The supreme court has "constitutional powers to issue writs to, and exercise supervisory and administrative control over, other judicial tribunals." State v. Davis, 493 N.W.2d 820, 822 (Iowa 1992). Our rules of appellate procedure contemplate original certiorari proceedings at the appellate level by providing for the filing in our court of a "petition for writ of certiorari directed to the district court." Iowa R.App. P. 301; see also Iowa R.App. P. 22(a) (authorizing supreme court to issue writs in furtherance of its "supervisory and administrative control over all inferior judicial tribunals and officers"). Such a petition may be granted or denied. See Iowa R.App. P. 302 (stating that petition may be "ruled on in the manner prescribed in the Rules of Appellate Procedure relating to motions"); Iowa R.App. P. 22(f) (giving single justice authority to grant or deny relief sought by motion). See generally 14 Am.Jur.2d Certiorari § 10, at 634-35 (2000) (stating that review by certiorari is discretionary, unless otherwise provided by rule or statute).

"A petition for a writ of certiorari is proper when the district court is alleged to have exceeded its jurisdiction or to have acted illegally." State Public Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). We have interpreted this standard liberally, stating that illegality exists when the court's ruling lacks "substantial evidentiary support or when the court has not applied the proper rule of law." Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 508 (Iowa 1998); see also Sprous v. Iowa Dist. Ct., 595 N.W.2d 777, 778 (Iowa 1999)

(granting writ of certiorari to review trial court's discretionary ruling on sanctions because the ruling was "judicial in nature"); State v. Iowa Dist. Ct. for Winneshiek County, 464 N.W.2d 233, 234 (Iowa 1990) (stating that court would "consider defects and errors in the proceedings of the inferior tribunal which are not strictly jurisdictional in nature" (citation omitted)).

The State argues that we should not exercise our discretion to review the case at hand because the order at issue is interlocutory, not final. We note initially that certiorari "is available regardless of the finality of a judgment." McKeever v. Gerard, 368 N.W.2d 116, 118 (Iowa 1985). In fact, as we noted in McKeever, "certiorari review of court action is ordinarily used prior to final disposition." Id. at 119. Therefore, we do not decide whether the nontestimonial identification order at issue here is final or interlocutory. Even if it is interlocutory, a characterization subject to some doubt, that fact would not preclude certiorari review.

The function of certiorari is twofold: (1) "the avoidance of unnecessary litigation"; and (2) "the provision of a method of review when no other means are available." Id. Although the absence of an opportunity for review in another manner is "[o]ne of the primary criteria" for issuance of a writ of certiorari, Davis, 493 N.W.2d at 822, the existence of another method of review does not ...