State v. Ahern

• Decision Date: 19 March 1975
• Docket Number: No. 57512,57512
• Citation: 227 N.W.2d 164
• Parties: STATE of Iowa, Appellee, v. Mark AHERN, Appellant.
• Court: Iowa Supreme Court

Page 164

227 N.W.2d 164

STATE of Iowa, Appellee, v. Mark AHERN, Appellant.

No. 57512.

Supreme Court of Iowa.

March 19, 1975.

Kennedy & Kennedy, New Hampton, for appellant.

Richard C. Turner, Atty. Gen., Gary A. Ahrens, Asst. Atty. Gen., and Richard P. TeKippe, County Atty., for appellee.

Heard by MOORE, C.J., and RAWLINGS, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

Defendant Mark Ahern appeals from judgment entered on his conviction for possession of a schedule II controlled substance. We reverse and remand.

On January 8, 1974, Frank Holshlag and William Wegman, both attorneys, and police officer James Burton drove to a house at 209 South Water Street in New Hampton Iowa, in search of Holshlag's juvenile client Tammy Tylee. Holshlag had requested Wegman and officer Burton to help locate Tammy after her mother had told him Tammy had been missing for several days and might be at that address. While traveling in the police car to the house Burton told the attorneys they would probably find drugs in searching for Tammy.

Arriving at the address, Burton parked the car in the driveway and the three entered a vestibule in the building which served two apartments. Attempting to determine which apartment Tammy might be in, Burton spoke with the occupant of one and decided on the other after hearing loud rock music emanating from it. During this time Burton smelled the distinctive ordor of burning marijuana.

Burton knocked on the apartment door three times, pausing from five to fifteen seconds between knocks, and, upon hearing movement inside, kicked in the door and entered the apartment. John Fenske was standing inside the door shaking his hand which had apparently been struck by the door.

Burton observed a roach, roach clip and roach pipe and placed Fenske under arrest. Burton read Fenske his 'Miranda rights,' told him he was going to 'search the place' and find all the narcotics there and Fenske could save everybody a lot of trouble by producing the drugs. Fenske went into the kitchen and returned with a cannister containing various narcotics and related paraphernalia. During this time Tammy was found washing her hair in the bathroom.

The charge against defendant, relating to the cannister's contents, was based upon his co-occupancy of the apartment with Fenske and two others. His own testimony revealed he was aware of the presence of amphetamines in the cannister in his apartment.

Although defendant assigns three errors on this appeal we find the first dispositive.

I. By pre-trial motion to suppress and course-of-trial objections defendant unsuccessfully asserted the contents of the cannister were inadmissible as products of an illegal search and seizure. The admission of those contents into evidence is assigned as error. In reviewing this contention we make our own evaluation of the validity of the search by examining all the circumstances shown in evidence. State v. Smith, 217 N.W.2d 633 (Iowa 1974).

The State admits no search warrant was issued. While the fourth amendment prohibits only unreasonable searches and seizures, warrantless searches and seizures are Per se unreasonable unless they come within a few 'jealously and carefully drawn' exceptions. The burden is upon those seeking to apply the exceptions to prove their applicability. Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct 2022, 2032, 29 L.Ed.2d 564, 576 (1971); State v. Shea, 218 N.W.2d 610, 613 (Iowa 1974); State v. Osborn, 200 N.W.2d 798, 802 (Iowa 1972); State v. King, 191 N.W.2d 650, 654 (Iowa 1971), cert. denied 406 U.S. 908, 92 S.Ct. 1617, 31 L.Ed.2d 819 (1972).

The State argues the evidence in this case was admissible under either the 'consent' or the 'exigent circumstances' exception and properly concedes other exceptions (E.g., 'plain view,' 'incident to valid arrest') are inapplicable.

II. Consent. It is clear an otherwise impermissible search and seizure is valid if freely and voluntarily consented to, and such consent may, under certain circumstances, be given by a person other than the accused. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Defendant does not dispute Fenske, as a rent-paying co-occupant of the apartment, could validly consent to a search of the communal area (kitchen) from which the cannister was taken. See United States v. Matlock, supra, 415 U.S. at 171--172, 94 S.Ct. at 993, 39 L.Ed.2d at 249--250.

A prosecutor seeking to rely upon consent to validate an otherwise unlawful search must prove the consent was freely and voluntarily given (Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968)) and such proof must be clear and convincing. State v. Smith, supra at 634; State v. Baych, 169 N.W.2d 578, 583 (Iowa 1969). Whether consent was freely and voluntarily given is a question of fact to be determined by the totality of circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2047--2048, 36 L.Ed.2d at 862--863. Mere acquiescence to asserted authority is insufficient. Bumper v. North Carolina, supra, 391 U.S. at 548--549, 88 S.Ct. at 1792, 20 L.Ed.2d at 802.

While we have examined all of the circumstances surrounding Fenske's consent, we shall discuss only those factors we deem most significant.

Burton entered the apartment by knocking on the door three times (within a span of less than thirty seconds) and, without identifying himself, kicking in the door. The coercive impact of this action on Fenske, who was standing beside the door and was injured when it came crashing in, is undeniable. In this regard we are not concerned with the legality or illegality of the entry but rather with its impact on Fenske.

Within seconds after breaking down the door Fenske was placed under arrest for possession of marijuana observed in an ashtray. Of course, an individual under arrest may validly consent to a search. State v. Gates, 260 Iowa 772, 777, 150 N.W.2d 617, 620 (1967). However, the psychological impact of an arrest immediately preceding a consent to search may not be ignored. United States v. Mapp, 476 F.2d 67, 78 (2 Cir. 1973) quoting Gorman v. United States, 380 F.2d 158, 163 (1 Cir. 1967) ('(A)rrest carries its own aura of coercion (and) the burden on the government to show voluntary consent is 'particularly heavy. "). In the case Sub judice the possibility Fenske's consent constituted mere submission to asserted authority is enhanced by his immediately preceding arrest.

After Burton had broken down the door and arrested Fenske, he 'suggested' Fenske consent to a search:

'I told him that I was going to search the place, that I was going to find all the narcotics that were there; that if he knew where they were at, he would save everybody a lot of trouble and to show me where they were at.'

In Bumper v. North Carolina, supra, 391 U.S. at 550, 88 S.Ct. at 1792, 20 L.Ed.2d at 803 the United States Supreme Court held:

'When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent.'

The State attempts to distinguish Bumper on the ground Burton did not represent he had a warrant or lawful authority to search. We find a representation of lawful authority implicit in Burton's statement even without the assertion he had a warrant.

"Orderly submission to law-enforcement officers who, in effect, represented to the defendant that they had the authority to enter and search the house, against his will if necessary, was not such consent as constituted an understanding, intentional and voluntary waiver by the defendant of his fundamental rights under the Fourth Amendment to the Constitution."

Bumper v. North Carolina, supra, 391 U.S. at 549, 88 S.Ct. at 1792, 20 L.Ed.2d at 802, n. 14; see Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921).

The State further argues such circumstances as Burton giving Fenske the 'Miranda warning,' the specificity of Fenske's disclosure of the presence of drugs, the lack of physical restraint on Fenske and his denial of ownership of the contents of the cannister are indicia of voluntariness or lack of coercion. We need not discuss these contentions in detail as we find, particularly in light of the holding in Bumper, they do little to meet the State's burden to produce clear and convincing evidence of a free and voluntary consent. We hold Fenske's consent was not voluntary.

In a related argument, the State asserts Fenske's action of retrieving the cannister and handing it to Burton vitiates all fourth amendment protection because no search was made. Principal reliance is placed on Coolidge v. New Hampshire, supra, 403 U.S. at 486--490, 91 S.Ct at 2048--2050, 29 L.Ed.2d at 594--596, in which the court held there was no search and seizure when a suspect's wife spontaneously offered to police evidence eventually found to be incriminating. But Coolidge does not, as the State argues, provide an arbitrary cut-off of constitutional rights dependent solely upon who performed the initial physical act of seizing the evidence. Rather, the Coolidge court examined the totality of the circumstances to determine if Mrs. Coolidge's actions were the result of coercive or unconstitutional police conduct. Coolidge v. New Hampshire, supra; see Schneckloth v. Bustamonte, supra, 412 U.S. at 245, 93 S.Ct. at 2057, 36 L.Ed.2d at 873 ('In Coolidge * * * we found nothing constitutionally impermissible in the admission of that evidence at trial since the wife had not been coerced.'). In the instant case we find little to distinguish that test from our earlier analysis of the validity of Fenske's consent...