State ex rel. Hanrahan v. Miller

• Decision Date: 20 October 1959
• Docket Number: No. 49641,49641
• Citation: 250 Iowa 1369,98 N.W.2d 859
• Parties: STATE of Iowa ex rel. Ray HANRAHAN, County Attorney of Polk County, Iowa, Appellee, v. Robert Joseph MILLER, Cottonwood Club, an Iowa Corporation, Appellants.
• Court: Iowa Supreme Court

Page 859

98 N.W.2d 859

250 Iowa 1369

STATE of Iowa ex rel. Ray HANRAHAN, County Attorney of Polk County, Iowa, Appellee, v. Robert Joseph MILLER, Cottonwood Club, an Iowa Corporation, Appellants.

No. 49641.

Supreme Court of Iowa.

Oct. 20, 1959.

Don J. Wilson and Walter F. Maley, West Des Moines, for appellants.

Ray Hanrahan, County Atty., Polk County, J. Peter Denato and John A. Harvey, Asst. County Attys., Polk County, Des Moines, for appellee.

PETERSON, Justice.

A rehearing having been granted appellee on a petition for further consideration of Division I of the opinion of this court, filed May 5, 1959 and appearing in 96 N.W.2d 474, Division I thereof is withdrawn and the following is substituted.

The facts appear in the original opinion and we will not repeat them in detail. There are some conditions and facts, however, which are peculiarly applicable to affirmance of the trial court, that should be stated.

On September 12, 1956, the sheriff's office raided the night club and key club located at 73rd Street and University Avenue in Polk County. This was in response to complaints which had been made concerning the maintenance of the business. In addition to arresting Robert Joseph Miller, who was the secretary of the club and in charge of the place of business, the officers took and brought to the sheriff's office 138 bottles or partly filled bottles of liquor, together with the books and records kept in the establishment.

An indictment was returned against Mr. Miller under the provisions of Section 123.3, Code of Iowa 1958, I.C.A. The section in substance is as follows: 'It shall be unlawful to * * * sell, offer or keep for sale, possess and/or transport vinous, fermented, spirituous, or alcoholic liquor, except beer as defined in chapter 124, * * * except upon the terms, conditions, limitations and restrictions as set forth herein.'

In January of 1957 the case was tried to a jury and Mr. Miller was acquitted. The question in the case, and in Division I of former opinion, arises at this point. Defendant claims that because of his acquittal he was entitled to have the liquor returned to him, under provisions of Section 751.23. If this was the conclusion of the procedure he would be correct. However, there is another chapter to the story.

On February 14, 1957, shortly after defendant Miller's acquittal, the county attorney filed a petition for abatement of the nuisance maintained at above location, against Robert Joseph Miller, Cottonwood Club, and the owner of the real estate.

The county attorney filed an application to hold the evidence consisting of the 138 bottles of liquor to be used as evidence in the trial of this cause. Defendant Miller filed resistance to the application, raising the question that he had been acquitted by the jury, and was entitled to return of the liquor. The court overruled the resistance and ordered the liquor held.

The criminal case was personal as against Mr. Miller. It was necessary that the State offer proof beyond reasonable doubt in order to convict him. The jury found him personally not guilty. This action is an action for injunction and abatement of a nuisance as provided in Chapter 128. It involves not only Miller, but the Cottonwood Club and the owner of the real estate, neither of whom were involved in the criminal case. This case is similar to any other ordinary action in that it was only necessary for plaintiff to prove its case by a preponderance of the evidence. The court found such preponderance, decreed the injunction, abatement of the nuisance, and destruction of the liquor.

The contention of appellants concerning Section 751.23 (Return of Property) and Article I, Section 8, Constitution of Iowa, I.C.A. (Unreasonable Searches and Seizures) is such that their theory of illegal seizure, and use of the property as evidence in the abatement proceeding, forms the real basis of their complaint.

An early case in which the question of illegal seizure was considered is the case of State v. Tonn, 1923, 195 Iowa 94, 191 N.W. 530, 536. The case involved an indictment against the defendant for conspiracy to commit criminal syndicalism. After defendant was in jail the State had gone to his hotel and taken his suit case in which he had a large quantity of I-W-W literature. After defendant's indictment and prior to the trial defendant filed petition for the return of such articles. The questions arising in the case were: First: is such evidence admissible in view of the conditions under which it was taken by the State? Second: should the court under such conditions return the property so taken? Defendant's petition for return of the property was overruled. On appeal this court said: 'The due enforcement of criminal law would be most seriously handicapped in many instances, if not wholly crippled, by a strict adherence to the rule contended for by appellant. The exhibits taken from appellant's suit cases and offered in evidence upon the trial of this case were relevant to the question involved therein. They were therefore properly admissible, even though it is conceded that they were obtained by a search and seizure without warrant, or strict legal authority. In this connection it is also perhaps proper to observe that the constitutional provision only applies to 'unreasonable searches and seizures."

It is true the rule has not been approved in the Federal Court. In State ex rel. Kuble v. Bisignano, 238 Iowa 1060, 28 N.W.2d 504, 507, referring to the question of seizure without search warrant, we said: 'The argument overlooks the fact that our court has definitely rejected the rule of the United States Supreme Court (Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746), holding evidence incompetent if obtained by an unlawful search. State v. Tonn, [supra].'

This court has consistently and repeatedly followed the pronouncement in the Tonn case. State v. Gorman, 1923, 196 Iowa 237, 239, 194 N.W. 225; Joyner v. Utterback, 1923, 196 Iowa 1040, 1044, 195 N.W. 594; State v. Rowley, 1923, 197 Iowa 977, 195 N.W. 881; Lucia v. Utterback, 1924, 197 Iowa 1181, 1186, 198 N.W. 626; State v. Parenti, 1925, 200 Iowa 333, 334, 202 N.W. 77; State v. Wenks, 1925, 200 Iowa 669, 670, 202 N.W. 753; Hammer v. Utterback, 1926, 202 Iowa 50, 52, 209 N.W. 522; State v. Korth, 1927, 204 Iowa 667, 668, 215 N.W. 706; State v. Lambertti, 1927, 204 Iowa 670, 672, 215 N.W. 752; State v. Rollinger, 1929, 208 Iowa 1155, 1156, 225 N.W. 841; State v. Nelson, 1941, 231 Iowa 177, 300 N.W. 685; State v. Bradley, 1942, 231 Iowa 1112, 3 N.W.2d 133; State ex rel. Kuble v. Bisignano (1947), supra.

In State v. Nelson, supra [231 Iowa 177, 300 N.W. 689], the court said: 'It is our considered judgment that the rule as expressed in State v. Tonn, supra, is sound, is protective of the rights of all citizens and that it should again be held to be the law of this state. Instead of injurying [sic] our constitutional rights, the rule set forth in the Tonn case makes possible the preservation of our cosntitutional government. This rule does not make possible the weakening of our government by unlawful forces working from within.'

A question somewhat similar to the question in this case was considered and decided in the cases of Touch v. Bonner, 201 Iowa 466, 205 N.W. 751, and State ex rel. Threlkeld v. Osborne, 207 Iowa 636, 223 N.W. 363, 364. In each case defendant had been acquitted in the criminal case and pleaded res adjudicata in the injunction and abatement cases.

In the latter case this court said: 'An entirely different rule prevails in the trial of a criminal action than in a suit in equity for an injunction. The one requires proof beyond a reasonable doubt; the other by a preponderance of the evidence. In the case of an action for an injunction under the statute, evidence of the general reputation of the place is admissible. Code, § 2022. Such is not the case in a criminal prosecution for maintaining a nuisance. The action in equity to enjoin a liquor nuisance may be brought by the county attorney, 'or any citizen of the proper county may institute and maintain such a proceeding in his name.' Section 2017. An indictment for the maintenance of a liquor nuisance can only be instituted in the method provided for the prosecution of criminal actions. It is obvious that the determination of one of such proceedings is not a bar to the prosecution of the other.'

In appellants original argument they cited State ex rel. Remley v. Meek, 1900, 112 Iowa 338, 84 N.W. 3, 51 L.R.A. 414, and State v. Cobb, 1904, 123 Iowa 626, 99 N.W. 299. These were overruled by the Tonn case, which is now supported by many later cases. In their resistance to appellee's petition for rehearing they cite only one case: State v. Kroll, 244 Iowa 173, 55 N.W.2d 251, 255. On broad principles the Kroll case does not support appellants. It is, in fact, favorable to appellee. Somewhat the same questions were raised as appear in the case at bar. The only difference was that the articles were taken in the case pertaining to abatement of a nuisance and the question was whether the court could order the seized articles held for use in pending criminal action. The court stated: 'Although the record does not show that there was an arrest made at the time of the seizure of the liquor in question, yet where subsequent criminal proceedings are instigated we see no reason why property of the plaintiff seized cannot and should not be held for use in such a case.'

The cases cited clearly establish the policy in Iowa. The same policy is in effect in about 30 other states. The question has had consideration recently in United States v. Gramer, 9 Cir., 191 F.2d 741, 27 A.L.R.2d 1132. Both the cases following the Federal rule and the cases following the Iowa rule are considered. Three paragraphs in the text as to ca...