State v. Brecunier

Decision Date21 May 1997
Docket NumberNo. 95-1555,95-1555
Citation564 N.W.2d 365
PartiesSTATE of Iowa, Appellee, v. Bret Robert BRECUNIER, Appellant.
CourtIowa Supreme Court

Linda Del Gallo, State Appellate Defender, Patricia Reynolds, Assistant State Appellate

Defender, and Mark Newman, Forest City, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kasey Wadding, Assistant County Attorney, for appellee.


NEUMAN, Justice.

A jury found defendant Bret Brecunier guilty of interference with official acts while armed, a violation of Iowa Code section 719.1 (1993). The district court entered judgment on the aggravated misdemeanor conviction, imposing a sentence of two years with all but thirty days suspended. 1 Brecunier now appeals a number of adverse pretrial rulings, claiming: (1) a handgun seized during his arrest was the product of a warrantless search and should have been suppressed; (2) section 719.1 is overbroad because it restricted his right to verbally challenge a law enforcement officer engaged in official acts; and (3) section 719.1 is overbroad because it infringed on his right to bear arms necessary to protect personal property. Finding no constitutional violations, we affirm.

I. Background Facts and Proceedings.

On a summer afternoon in 1994, defendant Bret Brecunier and several others gathered in the backyard of a friend, Craig Weiss. Weiss had summoned the men because a suspicious house fire earlier that day had elevated tensions in their Waterloo neighborhood. A gang of young teens roamed the block. Police officers had been on the scene earlier that afternoon, questioning Weiss after neighbors claimed he was seen loading a shotgun in his front window. Weiss responded that he was merely cleaning the weapon. The officers informed him that they would be patrolling the neighborhood, and to call 911 if trouble erupted.

After sundown the youngsters who had congregated in the alley behind Weiss's house began taunting the men in the backyard. Weiss and his friends reportedly brandished weapons as a show of force against the youngsters. When the two groups began heatedly exchanging threats, Weiss's wife called 911. Others in the neighborhood also called 911 at about the same time. Some of the callers complained about a man in the street with a shotgun.

Officers Timothy Frisch and James O'Hara arrived on the scene, responding to what was characterized by the shift sergeant as a "gun call." The officers moved the crowd gathered in the alley, then turned their attention to Weiss, who was standing in the backyard. The officers asked what he had in his hand. When Weiss displayed a shotgun, they drew their weapons and ordered him to put his down.

The record is conflicting as to whether Weiss immediately complied with the officers' directive. What is undisputed is that as Officer Frisch confronted Weiss, Brecunier pointed a large, six-volt Mag flashlight at him. This momentarily blinded the officer, preventing him from determining whether Weiss had in fact laid down the shotgun.

The officers then demanded that Weiss unlock the back gate. Weiss refused. He and Brecunier began shouting that the officers were unauthorized to enter the yard without a search warrant. Evidently determined to gain control of the situation, Officer Frisch asked Officer O'Hara to cover him while he climbed over the gate onto an old school bus parked inside the fenced yard. Officer Frisch testified that he went over the fence because he needed to "obtain that weapon for safekeeping." Brecunier evidently had his own idea about weapon safety. He testified that he "grabbed [the shotgun], put it in the bus, and locked the door."

As Officer Frisch climbed on the hood of the bus, Brecunier again aimed his flashlight at him, demanding his name and badge number. Although Brecunier maintains that he directed the beam only at the officer's chest in order to read his badge and name plate, the officer reported he was once more blinded by the light. The officer then pointed his service weapon at Brecunier and told him he would shoot if Brecunier did not put away the flashlight. Brecunier complied. As the officer jumped off the bus to pursue Weiss, Brecunier followed close behind, insisting their rights were being violated.

Backup officers soon arrived on the scene. Brecunier and Weiss were placed under arrest. A search incident to Brecunier's arrest yielded a .40 caliber handgun tucked in his belt. Other weapons and ammunition were seized from the yard and vehicles parked in the yard.

Brecunier was charged by trial information with interference with official acts while armed. See Iowa Code § 719.1. Two pretrial motions, denied by the court, form the basis of this appeal. First, Brecunier moved to suppress the seizure of his handgun (for which he held a permit) on Fourth Amendment grounds. Second, he filed a motion to dismiss, claiming enforcement of section 719.1 to these facts violates his rights under the First and Second Amendments to the United States Constitution. A jury found Brecunier guilty as charged and this appeal followed.

II. Standard of Review.

Because the defendant asserts violation of constitutional safeguards, our review is de novo. State v. Carlson, 548 N.W.2d 138, 140 (Iowa 1996); State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983). Such review requires us to independently evaluate the totality of the circumstances revealed by the entire record. Carlson, 548 N.W.2d at 140.

III. Issues on Appeal.

A. Fourth Amendment. Brecunier begins by claiming that the officers violated the Fourth Amendment by entering Weiss's backyard without a warrant. 2 He urges us to find the officers' actions illegal and, consequently, the handgun evidence obtained in the search inadmissible. See Carlson, 548 N.W.2d at 140.

The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, offers citizens broad protection against warrantless searches and seizures. State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995). The purpose of this protection is to safeguard the privacy and security of individuals against arbitrary intrusion by government officials. Carlson, 548 N.W.2d at 140; accord Michigan v. Tyler, 436 U.S. 499, 504, 98 S.Ct. 1942, 1947, 56 L.Ed.2d 486, 495 (1978). It has long been settled, however, that warrantless searches and seizures are permitted if they fall within one of the limited exceptions to the warrant requirement. State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989). The exceptions include (1) search by consent, (2) probable cause coupled with exigent circumstances, or (3) plain view. Id. The State carries the burden of proving by a preponderance of the evidence that officers acted reasonably under one of the exceptions. State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996).

The question is whether reasonable exigent circumstances existed to justify the officers' entry into Weiss's backyard. Brecunier argues the six-factor test for exigency traditionally applied to such situations cannot be satisfied here. These factors include proof of (1) a grave offense, (2) a suspect reasonably believed to be armed, (3) probable cause to believe the suspect committed the crime, (4) strong reason to believe the suspect is on the premises, (5) strong likelihood of the suspect's escape if not apprehended, and (6) peaceable (if not consensual) entry. State v. Johnson, 232 N.W.2d 477, 480 (Iowa 1975) (citing the test enunciated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970)). We have made plain, however, that these factors are not all inclusive, nor must each one be satisfied for a finding of exigency. Hatter, 342 N.W.2d at 855. As we said in Hatter The ultimate issue ... is whether an emergency or urgent need for the warrantless entry existed. A warrant will be required unless an immediate major crisis in the performance of duty afforded neither time nor opportunity to apply to a magistrate. We have found that exigent circumstances usually exist where there is danger of violence and injury to the officers or others; risk of the subject's escape; or the probability that, unless taken on the spot, evidence will be concealed or destroyed.

Id. (citations omitted).

Focusing on the first factor of the Dorman test, Brecunier attempts to minimize the gravity of the situation encountered by the officers responding to the 911 call. Analogizing to Hatter, Brecunier claims no emergency existed to justify a warrantless entry into Weiss's backyard. Hatter, however, is distinguishable on its facts. The defendant in Hatter, alleged to have kidnapped and sexually abused a female companion, challenged a warrantless arrest at his home the day following the assault. We found a lack of exigency in Hatter because the arresting officers had ample time to secure a warrant. Id. at 856. Contacted by the victim early in the morning, officers had interviewed her and collected evidence, had taken her to lunch, and had driven her by Hatter's house in the afternoon. The officers thereafter entered Hatter's home without a warrant or consent at 3 p.m., placing him under arrest Id. at 855-56. Under these facts, we determined that any sense of urgency necessitating a warrantless search had evaporated. Id. at 856.

The case before us is more in line with Vincik, 436 N.W.2d at 352, where officers made a warrantless search of a crime scene following defendant's call for 911 assistance. We held that officers called to an emergency situation could conduct a warrantless search limited to securing the area. Id. at 353.

The events revealed by the record before us required the officers to attend immediately to the situation. Tensions at the scene were escalating. An arson fire had destroyed a house on the same block earlier that day. Weiss had "mustered troops" at his house, bracing for a...

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