State v. Cullison

• Citation: 173 N.W.2d 533
• Decision Date: 13 January 1970
• Docket Number: No. 53491,53491
• Parties: STATE of Iowa, Plaintiff, v. Bennett CULLISON, Judge of the Fifteenth Judicial District of Iowa, Defendant.
• Court: United States State Supreme Court of Iowa

Page 533

173 N.W.2d 533

STATE of Iowa, Plaintiff, v. Bennett CULLISON, Judge of the Fifteenth Judicial District of Iowa, Defendant.

No. 53491.

Supreme Court of Iowa.

Jan. 13, 1970.

Richard C. Turner, Atty. Gen., and David A. Elderkin, Asst. Atty. Gen., for plaintiff.

William C. Hemphill, Clarinda, for defendant.

RAWLINGS, Justice.

This is an original certiorari proceeding, pursuant to our order, on plaintiff's application for review of claimed error by defendant trial court in sustaining a criminal action pretrial motion to suppress evidence.

The factual situation presented is devoid of any substantial conflict.

Following conviction of a felony Terry J. Teeters was committed to the Iowa Men's Reformatory. June 13, 1968, he was paroled under supervision of Officer Darrell Holmes.

At that time Teeters executed an instrument by which he agreed to conduct himself honestly, obey the law, keep reasonable hours, refrain from excessive use of intoxicants, and remain at all times in Montgomery County. With the aid of his parole supervisor Teeters secured employment and living quarters in Red Oak.

July 26, 1968, Holmes was advised that Teeters had not reported for work that morning.

The parole officer then went to the parolee's apartment. Holmes knocked on the door and called Teeters' name for about ten minutes before being permitted to enter. He then saw a room littered with beer cans.

Upon inquiry Teeters stated he overslept, had gone to Pottawattamie County the night before, and on his return there had been 'quite a party' in the apartment.

The two men then visited the parolee's employer. On return Holmes found one of the interior apartment doors locked. Teeters then said he did not want that door opened because there was something Holmes should not see.

Having been previously advised regarding recent Page and Montgomery County 'break-ins', the supervisor became suspicious.

Teeters then asked Holmes to leave for about an hour. Thereupon the supervisor went to the Red Oak Police Station, obtained a set of master keys, returned to the apartment, and attempted to open the locked door.

The parolee became nervous, again asked that the door be not opened, and picked up a table knife, but made no threats or menacing moves. Holmes, however, became concerned and again went to the station, this time returning with the police chief. Teeters then made some statement to the effect he would be glad when it was over.

The keys were again unsuccessfully tried by Holmes, whereupon Teeters indicated one which would probably work. It did.

The two officers then entered a bedroom where they encountered a closet door, also locked. When Holmes had difficulty in opening that door Teeters pointed out the master key used to enter the bedroom would, in turn, unlock the closet. There Holmes and the police officer found merchandise, later identified as having been stolen from a store in Page County.

As a result of this warrantless search, defendant was charged by county attorney's information with the crime of receiving stolen property. His pretrial motion to suppress was sustained by trial court and the State seeks this review.

I. The broad question presented is: Did trial court here exceed its jurisdiction or otherwise act illegally? Rule 306, Rules of Civil Procedure, and State v. District Court, 248 Iowa 250, 253--254, 80 N.W.2d 555. See also State v. Rees, 258 Iowa 813, 816, 139 N.W.2d 406.

II. Reduced to bare essentials, however, the problem to be resolved is whether Teeters has standing to invoke constitutional prohibitions against a claimed unreasonable warrantless search and seizure.

At the threshold, by way of exclusion, use of evidence so obtained, in connection with revocation of probation, is not now before us.

Rather the issue is whether an Iowa State parolee may effectively challenge evidentiary use of fruits obtained by a parole supervisor's warrant-absent, nonconsent search of the parolee's living quarters in connection with the prosecution of a new and independent criminal action.

This means, in substance, our task is to determine what constitutional rights, if any, an individual surrenders upon conditional release from one of our state penal institutions.

As best we have been able to determine, the question posed has never before been squarely resolved by this or the United States Supreme Court.

However, some other state and federal tribunals have considered and determined the problem upon factual circumstances peculiar to each case.

Probably the most cited is People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100, 8 A.L.R.3d 1092. There a narcotics agent received information from an informant to the effect Hernandez, a parolee, might have narcotics in his automobile. This tip was relayed to the parolee's supervisor. He, accompanied by four other officers, approached Hernandez, searched him and the car he was about to enter, and found heroin. A later search of the parolee's residence produced more drugs. Appeal from conviction for possession of heroin resulted in an affirmance, although the search was characterized as of doubtful legality if weighed on the standard scale.

Conceding a parolee possesses Some constitutional rights, the court found, in essence, they were Diluted to the point he could not be heard to voice absence of reasonable or probable cause with regard to any other than an oppressive search by his parole supervisor.

Subsequently Hernandez, supra, and several other cases in the same vein were cited, and some briefly analyzed, in United States ex rel. Randazzo v. Follette, D.C., 282 F.Supp. 10. There, however, the court, in effect, Stripped a parolee of all rights under Amendment 4.

One opinion, looked upon with disfavor in Follette, supra, is United States v. Lewis, D.C., 274 F.Supp. 184. In that case FBI agents, armed with an arrest warrant for violation of parole, apprehended defendant on a public street, took from him a key to his apartment, then went there and effected a search resulting in discovery of a still. In sustaining defendant's motion to suppress, the court held, on a well reasoned basis, the warrantless search, absent consent, was constitutionally impermissible. Significantly the court concluded, at 274 F.Supp. 190: 'Since the parole officer has the right to investigate and interrogate a parolee for the purpose of determining whether he is living up to his conditions of parole and the parolee is obligated to respond to questions relating to possible violations of parole, it could be argued that the parolee should have no greater Fourth Amendment rights than he would have in a jailhouse cell. This Court, however, does not believe that a parolee can thus generally be stripped of his Constitutional rights, particularly since the effect of such a holding would be to expose him to self-incrimination and to surrender of his privacy with respect to matters and offenses other than violation of parole. In the present case, for instance, to uphold the search would be to expose him to prosecution and conviction for a new crime. Accordingly, the Court concludes that in the absence of an effective consent to the entry of his apartment, the defendant here was entitled to be protected against such search and seizure under the Fourth Amendment. See United States v. Hallman, 365 F.2d 289 (3d Cir. 1966); Brown v. Kearney, 355 F.2d 199 (5th Cir. 1966); Martin v. United States, 183 F.2d 436 (4th Cir.), cert. denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950).'

A similar position was adopted in Jackson v. Bishop, D.C., 268 F.Supp. 804, 807, and dissent in People v. Randazzo, 15 N.Y.2d 526, 527, 254 N.Y.S.2d 99, 100, 202 N.E.2d 549, 550.

Furthermore, Hernandez, supra, has not escaped criticism. See 18 Vanderbilt L.Rev. 754, 760.

The foregoing discloses some tribunals, leading to the same result, Strip a parolee of all Fourth Amendment rights while others Dilute them. Both of these stands are premised, in large part if not entirely, upon what may best be described as a socio-juristic rationalization, i.e., protection of the public and constructive custody.

Conversely, a parolee's rights, to the extent here relevant, are accorded full validity and recognition by other courts.

We are not persuaded the aforesaid 'dilution' or 'stripping' approaches are constitutionally sound, reasonable, fair or necessary.

In the first place the 'dilution' theory begins and ends nowhere, being at best illusory and evasive.

Demonstrably the court said in People v. Hernandez, supra, loc. cit., 40 Cal.Rptr. 103--104: 'At this point we confront authorities theorizing that parole is an act of grace, acceptance of which entails the voluntary surrender or curtailment of constitutional rights. (See Note, 65 Harv.L.Rev. 309 at p. 310, fns. 11, 12.) The rationale is not particularly appealing. It makes constitutional rights dependent upon a kind of 'contract' in which one side has all the bargaining power. A better doctrine is that the state may not attach unconstitutional conditions to the grant of state privileges. * * *

'* * * Although a parolee is not a prison inmate in the physical sense, he is constructively a prisoner under legal custody of the State * * *. In actual fact he moves about in free society, fettered by the conditions and restrictions of his parole. Thus his status differs somewhat from that of unreleased prisoners. To an extent not necessary to ascertain here, he may be able to assert constitutional guarantees and safeguards against arbitrary or oppressive official action. * * *

'Conceivably, the close scrutiny available to the parole authorities should be restricted to the sphere of parole administration.'

On the other hand no court, in advancing the so-called 'strip' concept, has as yet voiced any legally acceptable basis upon which to hold a parolee may, ipso facto, be arbitrarily or perfunctorily deprived of All Fourth Amendment privileges or immunities.

As heretofore...