State v. Coy, 85-1842

• Citation: 397 N.W.2d 730
• Decision Date: 17 December 1986
• Docket Number: No. 85-1842,85-1842
• Parties: STATE of Iowa, Appellee, v. John Avery COY, Appellant.
• Court: United States State Supreme Court of Iowa

Page 730

397 N.W.2d 730

STATE of Iowa, Appellee, v. John Avery COY, Appellant.

No. 85-1842.

Supreme Court of Iowa.

Dec. 17, 1986.

Rehearing Denied Jan. 16, 1987.

Charles L. Harrington, Appellate Defender, and B. John Burns, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., G. Wylie Pillers III, Co. Atty., and Gary Rolfes, Asst. Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, SCHULTZ, LAVORATO, and NEUMAN, JJ.

REYNOLDSON, Chief Justice.

After jury trial John Avery Coy was convicted of two counts of engaging in lascivious acts with a child in violation of Iowa Code section 709.8(1) (1985). In this appeal he challenges two trial court rulings. Finding no error, we affirm.

In the early morning hours of August 3, 1985, two young girls, spending the night in a makeshift tent located in the backyard of one of their homes, were sexually assaulted. Suspicion early focused on Coy who at that time lived next to the home where the girls were staying. Following a search of his home, Coy was charged and tried.

On appeal Coy challenges trial court's failure to suppress certain items of evidence he claims were obtained in violation of his fourth amendment right to be free from unreasonable searches and seizures. Coy's second alleged error focuses on the use at trial of a screen that allowed him to see and hear the victims testify but prevented them from seeing him. He contends this violated his sixth amendment right to confront witnesses as well as his fourteenth amendment right to a fair trial. We first address Coy's fourth amendment claim.

I. Before trial, Coy moved to suppress evidence seized during the search of his residence. While this evidence was seized under warrant, Coy asserted a portion of the information used to demonstrate probable cause for issuing the warrant was itself obtained in violation of his fourth amendment rights. Specifically, Coy contended two private citizens, acting as agents of the police, illegally entered and searched his residence. These individuals reported their findings to police who used this information to establish the probable cause necessary to obtain a search warrant.

Following a pretrial hearing, trial court denied the suppression motion, finding the challenged search was private in nature and thus beyond the scope of any fourth amendment prohibition.

The legal principles governing Coy's contentions are well established. The fourth amendment, made applicable to the states by operation of the due process clause of the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 654-57, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081, 1089-91 (1961), proscribes certain governmental action in searches and seizures. The mandates of the fourth amendment, however, are "wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent [or instrument] of the Government or with the participation or knowledge of any governmental official.' " United States v. Jacobsen, 466 U.S. 109, 113-14, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410, 421 (1980) (Blackmun, J., dissenting)); see also State v. Flynn, 360 N.W.2d 762, 767 (Iowa 1985); State v. Bakker, 262 N.W.2d 538, 546 (Iowa 1978).

Whether a private citizen has become an agent or instrument of the state depends on the total circumstances surrounding the challenged conduct. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564, 595 (1971). Factors variously considered and weighed by courts include: (1) whether the state directly or indirectly encouraged or participated in the challenged conduct; (2) whether the state, although knowing the challenged conduct was occurring or was likely to occur, did nothing to prevent it; (3) whether the challenged conduct was intended to assist law enforcement officials or to further some other end; and (4) whether law enforcement officials themselves could have undertaken the conduct without violating the defendant's fourth amendment rights. See id.; United States v. Walsh, 791 F.2d 811, 814 (10th Cir.1986); United States v. Ford, 765 F.2d 1088, 1090 (11th Cir.1985) (per curiam); United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982); People v. North, 29 Cal.3d 509, 514, 629 P.2d 19, 22, 174 Cal.Rptr. 511, 514 (1981).

At bottom, a private search, untainted by improper governmental involvement, implicates no fourth amendment interest regardless whether the search was accidental or deliberate, reasonable or unreasonable, and regardless whether the search may itself give rise to civil or criminal liability. See Jacobsen, 466 U.S. at 115, 104 S.Ct. at 1657, 80 L.Ed.2d at 95; Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921); State v. Holliday, 169 N.W.2d 768, 771 (Iowa 1969).

Our review of trial court's ruling on Coy's suppression motion, involving as it does a claimed constitutional violation, requires an independent, de novo evaluation of the total circumstances shown by the record. State v. Baldwin, 396 N.W.2d 192, 193 (Iowa 1986); State v. Campbell, 326 N.W.2d 350, 352 (Iowa 1982).

The facts surrounding the challenged search are largely undisputed. The girls reported the attack at approximately 6 a.m on the morning of August 3, 1985. They were taken immediately to a nearby hospital where they were examined and one of the girls was interviewed by police Sergeant Speakman. Between 8:30 and 9 a.m., Speakman, the second girl, and her parents returned home to the scene of the sexual assault.

While discussing the incident with the girl and her parents, the father of the girl suggested Coy as a possible suspect. The father's suspicions appear to have been based largely on the girls' statements coupled with his own observations of Coy the day before the attack. Coy soon was observed leaving his residence with a suitcase.

Sergeant Speakman approached Coy and spoke with him about the incident. While Speakman was talking with Coy, a computer check disclosed an outstanding arrest warrant for Coy, based on a traffic violation. Coy was arrested and taken into police custody. Speakman then returned to the girl's home and continued interviewing her.

Approximately an hour later and while the girl was still being interviewed, her father and another neighbor told Speakman they had just completed a search of Coy's residence. They reported finding a yellow cup like one the assailant had taken from the girls' tent. Sergeant Speakman later testified he was "pleasantly surprised" by this information.

On the strength of this and other information, Speakman applied for and obtained a search warrant for Coy's residence. The search warrant was executed, and evidence later admitted against Coy was discovered and seized. This evidence included the yellow cup, a flashlight, and flashlight batteries, all of which matched the description of equipment taken from the victims.

In challenging trial court's ruling, Coy contends the evidence should have been suppressed because in entering his residence the girl's father and the neighbor were acting as agents of the police. Coy argues his initial arrest on the outstanding warrant was but a ploy used to get him out of the way. Then, once he was in custody, police encouraged or simply stood by while the illegal search took place.

In taking this position Coy relies heavily on Sergeant Speakman's testimony he was pleasantly surprised by the news of the discovery. Coy also emphasizes evidence showing the neighbor who accompanied the girl's father during the house search had earlier been requested by police officers to assist them in a search of the neighborhood yards.

The officers, when earlier investigating the crime, were questioned by the neighbor as they walked through his backyard. The officers explained they were conducting a general yard search for clothing worn by the attacker and a yellow drinking cup, a flashlight, and apparel taken from the girls.

The officers asked the neighbor to walk around the neighborhood to see if he could find any of these items. The neighbor walked through yards for several blocks unsuccessfully looking for the evidence. Following this search, the neighbor and the girl's father entered and searched Coy's residence.

At the suppression hearing, Sergeant Speakman and another officer testified without contradiction they had no idea the father and the neighbor were going to search Coy's residence and had not encouraged them to do so. The father and neighbor testified they acted wholly on their own and no officer specifically or by implication suggested they enter Coy's residence.

Additionally, Coy has never contended the outstanding warrant on which he originally was detained was trumped up or somehow manufactured. Once Sergeant Speakman learned of the warrant's existence it was his duty to place Coy under arrest. Finally, that Speakman was pleasantly surprised by the discovery of evidence shows nothing more than a natural reaction to unexpected good news.

We conclude no impermissible agency relationship was present in this case. Trial court properly denied Coy's motion to suppress the evidence seized from his residence.

II. We turn now to Coy's second claimed error. Trial court granted State's request that a screen be placed in front of Coy during the two girls' testimony. This screen allowed Coy to see the girls and hear their testimony but prevented them from seeing him.

Coy challenges the use of this screening device on two grounds. He claims a violation of his constitutional right to confront the witnesses against him. Coy additionally asserts the screen created a strong and prejudicial inference of guilt, violating his right to a fair trial. Again reviewing both constitutional claims de novo, we reject Coy's contentions. See State v. Nelson, 390 N.W.2d 589, 591...