Latham v. Sullivan

• Decision Date: 30 May 1980
• Docket Number: No. 2-63201,2-63201
• Citation: 295 N.W.2d 472
• Parties: Richard T. LATHAM, Plaintiff-Appellant, v. B. C. SULLIVAN, as Judge of the Iowa District Court for Cerro Gordo County, Defendant-Appellee.
• Court: Iowa Court of Appeals

Page 472

295 N.W.2d 472

Richard T. LATHAM, Plaintiff-Appellant, v. B. C. SULLIVAN, as Judge of the Iowa District Court for Cerro Gordo County, Defendant-Appellee.

No. 2-63201.

Court of Appeals of Iowa.

May 30, 1980.

Joseph R. Lapointe, of Warren L. De Vries Law Office, Mason City, for plaintiff-appellant.

Thomas J. Miller, Atty. Gen. of Iowa and Rolf Aronsen, Asst. Cerro Gordo County Atty., for defendant-appellee.

Heard by OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.

SNELL, Judge.

Plaintiff-criminal defendant challenges by way of certiorari pursuant to Iowa R.Crim.P. 11(2) the trial court's overruling of his motion in limine and motion to suppress. Plaintiff contends the warrantless search of his apartment was in violation of the fourth amendment of the United States Constitution as applied to the states through the fourteenth amendment and section eight of article one of the Iowa Constitution, and the evidence seized in the warrantless search should have been suppressed. Plaintiff also contends the magistrate's failure to issue a warrant pursuant to section 808.4, supplement to the Code 1977, was an additional ground for suppression of the evidence. We sustain the writ in part in that we conclude that the motion to suppress should have been granted and the motion in limine should have been granted in part, and we remand for further proceedings.

During the evening hours of September 28, 1978, the Black & White Cafe in Mason City was broken into through the front window. Items including bottles of liquor with the Iowa State liquor tax stamp characteristic of liquor bottles sold to taverns, cigarettes, packages of "Slim Jim" sausages, and an empty "Premium" saltine cracker box were missing from the cafe. The minutes of testimony attached to the county attorney's information charging plaintiff with burglary in the second degree in violation of section 713.3, supplement to the Code 1977, reveal that the investigating officer "will testify that there were some subjects that lived above the cafe who he believed to be suspects." The officer proceeded to the rear of the building and climbed an outside stairway that led to the only entrance to the apartment in which the "suspects" resided, apparently in furtherance of his investigation. From the landing outside the apartment door, the officer looked through the apartment window and observed plaintiff along with several bottles of liquor with the special Iowa State liquor tax stamp attached to the bottles. He also observed a "Premium" saltine cracker box containing several packages of cigarettes.

After making these observations, the officer returned to the cafe to obtain further instructions. He was instructed to return to the apartment to request permission to search the apartment. The officer so proceeded, and informed plaintiff that he was a suspect in the breaking and entering of the cafe. After plaintiff refused to consent to a search, the officer observed that the lights were turned off in the apartment and that after the lights were turned backed on, the cracker box containing the cigarettes was no longer observable through the window. The minutes of testimony do not reveal that any liquor bottles had been removed from the location at which they were readily visible from the window.

The officer again returned to the cafe for further instructions. He informed a detective of his recent observations and the detective then contacted a magistrate for the purpose of obtaining a search warrant. The magistrate concluded that the situation fell under the "hot pursuit" exception to the warrant requirement, and instructed the officers to proceed with a search without a warrant. Plaintiff again refused entrance to the officers in the absence of a search warrant, and the officers informed plaintiff that a warrant was not required and forced their way into plaintiff's apartment. The officers found the "Premium" saltine cracker box containing cigarettes behind a locked closet door that they removed from its hinges. Several bottles of liquor were found, including some in the refrigerator. Packages of "Slim Jim" sausages were found inside stereo speakers. Plaintiff and a co-suspect were then taken into custody, booked, and incarcerated in the city jail.

Plaintiff moved to suppress all evidence taken as a consequence of the warrantless search of his apartment. Plaintiff also made a motion in limine to prevent any mention of that evidence at trial. The trial court overruled both motions on the grounds that the original observation of the officer through the window was permissible as a "plain view" observation and not a search, that the observation established probable cause to search, that the officers were in hot pursuit, and that there were exigent circumstances to justify the search. Plaintiff petitioned for a writ of certiorari ¹ alleging the trial court's rulings on his motion were erroneous and in violation of federal and state constitutional provisions and section 808.4, supplement to the Code 1977. Certiorari was granted on April 3, 1979.

Plaintiff contends the warrantless search of his apartment and seizure of evidence pursuant to that search constituted a violation of his constitutional rights. Consequently, our review is de novo, even though the case is here on certiorari. Bettuo v. Pelton, 260 N.W.2d 423, 425 (Iowa 1977).

Plaintiff's allegation of unconstitutionality is based on the fourth amendment to the United States Constitution. That amendment 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.

Article one, section eight, of the Iowa Constitution is substantially the same. The fourth amendment protections are enforceable against the states through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961).

Initially, we note that the fourth amendment, as a basic guardian provision of individuals' right to privacy, has endured a long history of controversy through conflicting interpretations and applications, and that a review of the cases applying that constitutional provision reveals what has at best been termed "a mess." Countryman Search and Seizure in a Shambles? Recasting Fourth Amendment Law in the Mold of Justice Douglas, 64 Iowa L.Rev. 435, 459 (1979); Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind.L.J. 329, 329 (1973); see State v. King, 191 N.W.2d 650, 654 (Iowa 1971). Nevertheless, the basic principle of the fourth amendment that has been consistently sustained is that a warrantless search and seizure is per se unreasonable unless it comes within any of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564, 588 (1971); State v. Schrier, 283 N.W.2d 338, 342 (Iowa 1979); State v. Folkens, 281 N.W.2d 1, 3 (Iowa 1979); Bettuo, 260 N.W.2d at 425; King, 191 N.W.2d at 654. The carefully delineated exceptions are: searches consented to; searches incident to arrest; and searches required by exigent circumstances, including those that qualify under the plain view doctrine. Shrier, 283 N.W.2d at 342. Those seeking to justify a search under one of the exceptions have the burden to show the need for it, Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235, 242 (1979) (quoting United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64 (1951); State v. Shea, 218 N.W.2d 610, 613 (Iowa 1974), and must satisfy that burden by a preponderance of the evidence. Bettuo, 260 N.W.2d at 425.

The State concedes that if the initial observation through the apartment window was a fourth amendment violation, then the whole procedure following that observation is also invalid since the initial observation provided the only probable cause on which any subsequent search and seizure could be based. We conclude that the officer's initial observation through plaintiff's apartment window did not amount to a search within the meaning of the fourth amendment. This conclusion hinges on whether the officer had a legitimate right to be where he was when he made the observation. See Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583; 1 W. LaFave, Search & Seizure § 2.3, at 304 (1978) (quoting State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975)).

The officer's purpose in carrying out the investigation of the recently committed crime was legitimate. Equally legitimate was his procedure in carrying out this purpose, by inspecting the immediately surrounding area, searching for witnesses, evidence, or any other clues he might fortuitously discover. Engaged in this process, he found himself on the landing of a stairway in back of the building in which the Black & White Cafe was located. That apparently provided the only outside entrance to the apartment. The officer's legitimate investigative purpose clearly provided him with a right to be where he was when he made the observation through plaintiff's apartment window. See Taylor v. United States, 286 U.S. 1, 5-6, 52 S.Ct. 466, 467, 76 L.Ed. 951, 953 (1932); United States v. Hersh, 464 F.2d 228, 230 (9th Cir. 1972) (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)); Lorenzana v. Superior Court, 9 Cal.3d 626, 629, 511 P.2d 33, 35, 108 Cal.Rptr. 585, 587 (1973); State v. Hook, 60 Haw. 197, 200, 587 P.2d 1224, 1227 (1978); State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975); State v. Lane, Mont., 573 P.2d 198, 201 (1977); 1 W. LaFave, Search & Seizure § 2.3 (1978). Any observations made from that spot where the officer had a legitimate...