State v. Farber

• Decision Date: 20 January 1982
• Docket Number: No. 65301,65301
• Citation: 314 N.W.2d 365
• Parties: STATE of Iowa, Appellee, v. Bennie Jeanne Berkley FARBER, Appellant.
• Court: Iowa Supreme Court

Page 365

314 N.W.2d 365

STATE of Iowa, Appellee, v. Bennie Jeanne Berkley FARBER, Appellant.

No. 65301.

Supreme Court of Iowa.

Jan. 20, 1982.

Larry J. O'Connor, P. C., Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina, Asst. Atty. Gen., David H. Correll, Black Hawk County Atty., and Larry L Anfinson, Asst. Black Hawk County Atty., for appellee.

Considered en banc.

McCORMICK, Justice.

Defendant Bennie Jean Berkley Farber appeals from her conviction and sentence for possession of a controlled substance in violation of section 204.401(3), The Code. She alleges the trial court erred in overruling her pretrial motion to suppress evidence of drugs and drug paraphernalia seized in a search of her apartment pursuant to warrant. She contends the warrant was neither validly issued nor lawfully executed. Because we find no merit in either contention, we affirm the trial court.

The search warrant in this case was issued by Magistrate George L. Stigler, now a district associate judge. The motion to suppress was heard by Judge Forest E. Eastman. After Judge Eastman overruled the motion, the case was tried on stipulated facts to Magistrate Stigler, with jury waived. Defendant was convicted and fined $100. This appeal followed.

The evidence in the suppression hearing came from testimony of defendant, her estranged husband Steven Craig Farber, and a friend of defendant. We review the record de novo. State v. District Court, 247 N.W.2d 241, 245 (Iowa 1976). It shows defendant was the sole occupant of the Waterloo apartment involved. She and her husband were separated. On February 18, 1980, however, the husband entered the apartment and observed drugs and drug paraphernalia. At approximately 6:45 p.m. on February 20, 1980, he related his observations to a detective in the sheriff's department. Shortly thereafter the deputy applied to Magistrate Stigler for a warrant to search the apartment. The application was supported by the detective's affidavit reciting the information provided by defendant's husband. The husband also testified before the magistrate.

The warrant was executed during the same evening it was issued. The record does not disclose how or exactly when the apartment was entered. It does show that at approximately 10:00 p.m. two officers approached defendant at her place of employment in Waterloo, notified her of the warrant, and transported her to her apartment. When they arrived, defendant discovered that three other officers had completed the search. The apartment door was open, and the three officers were in her living room with the confiscated material. She was then arrested and subsequently charged.

Defendant preserved error in the suppression hearing on her present contentions. She asserts the warrant was invalidly issued because her husband was disqualified under section 622.7 from providing information for the warrant. She alleges it was unlawfully executed because the officers violated section 808.6, the knock and announce statute.

I. Issuance of the warrant. In material part, section 622.7 provides: "Neither the husband nor wife shall in any case be a witness against the other ...." We have recognized that subject to enumerated exceptions this statute disqualifies one spouse from being used against the other at trial. See State v. Pepples, 250 N.W.2d 390, 394 (Iowa 1977). We have also held it applies to grand jury proceedings. See State v. Henderson, 268 N.W.2d 173, 178 (Iowa 1978).

We have not had occasion to decide whether the statute bars testimony by one spouse in support of issuance of a search warrant against property of the other. We have held, however, that it does not bar third party testimony concerning the spouse's out-of-court statements. See Pepples, 250 N.W.2d at 394. This means the statute does not preclude third party use of information from one spouse to obtain a search warrant for the other spouse's property. See United States v. Lefkowitz, 618 F.2d 1313, 1318 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); State v. Osborne, 18 Wash.App. 318, 322, 569 P.2d 1176, 1180 (1977).

Probable cause for issuance of a search warrant may be based on evidence which would be inadmissible at trial, including hearsay. State v. King, 256 N.W.2d 1, 8 (Iowa 1977). Therefore, if section 622.7 barred spousal testimony in support of a warrant application, the same information presumably could be presented through a third person. The possibility of this anomalous result points up the unlikelihood that the statute was intended to apply to issuance of a search warrant in the first place.

The statute precludes adverse spousal testimony in a "case." A search warrant proceeding, however, is independent of any criminal case. It is ex parte and nonadversary. Moreover, the warrant is an investigative aid. At common law the privilege did not prevent officers from obtaining information from one spouse to assist in an investigation of the other. See Trammel v. United States, 445 U.S. 40, 52 n.12, 100 S.Ct. 906, 913, 63 L.Ed.2d 186, 196 (1980); State v. Aaron, 29 N.C.App. 582, 225 S.E.2d 117, review denied, 290 N.C. 603, 228 S.E.2d 455 (1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1180, 51 L.Ed.2d 585 (1977).

We have recognized the statute applies in grand jury investigations of specific charges. See State v. Smith, 215 Iowa 374, 245 N.W. 309 (1932); Molyneaux v. Wilcockson, 157 Iowa 39, 137 N.W. 1016 (1912). The issue in a grand jury inquiry is much different than in a search warrant proceeding. It concerns the sufficiency of evidence to indict rather than sufficiency of evidence to conduct a search. An indictment is a preclude to a trial, whereas a search is investigatory. In addition, the potential compulsion of a subpoena is present in the grand jury setting but is unlikely to be involved in issuance of a search warrant.

Section 622.7 derogates the fundamental public right to every person's evidence. See Trammel, 445 U.S. at 50, 100 S.Ct. at 912, 63 L.Ed.2d at 195. The privilege has been called "the merest anachronism in legal theory and an indefensible obstruction to truth in practice." VIII J. Wigmore, Evidence § 228 at 221 (McNaughten rev. 1961). Even though we must apply the statute in accordance with its terms, we will not extend it by construction. Henderson, 268 N.W.2d at 178. Consequently, we hold it does not apply to an application for search warrant. Accord, Osborne, 18 Wash.App. at 322, 569 P.2d at 1180. We do not believe the proceeding on a search warrant application is a "case" within the meaning of section 622.7.

Therefore the trial court did not err in overruling defendant's attack on the issuance of the warrant.

II. Execution of the warrant. This is the first case in which we have been asked to construe the knock and announce statute since the 1978 criminal code revision. In material part, section 808.6 provides:

The officer may break into any structure or vehicle where reasonably necessary to execute the warrant if, after notice of (his) authority and purpose the officer's admittance has not been immediately authorized. The officer may use reasonable force to enter a structure or vehicle to execute a search warrant without notice of the officer's authority and purpose in the case of vacated or abandoned structures or vehicles.

Defendant contends this statute was violated because the officers executed the search warrant in her absence. She argues that forcible execution of a warrant is authorized by the statute only when it is "reasonably necessary." Defendant maintains that forcible entry is reasonably necessary only if exigent circumstances exist. Because two officers were able to locate her at her job while three other officers were conducting the search, she alleges they knew where she was when they commenced the search. On this basis she asserts she should have been given the opportunity to admit the officers voluntarily. Because the search was made pursuant to warrant, defendant had the burden of proof in the suppression hearing. See State v. Shephard, 255 Iowa 1218, 1222, 124 N.W.2d 712, 714-15 (1963).

This case does not present a situation in which officers wait until a person leaves the premises so they can conduct a search in the person's absence. The warrant was executed a short time after it was issued. Nor does the record establish that the officers knew where defendant was when they commenced the search. The fact they found her does not prove they knew she could be found. It proves only that they knew where to look. Even assuming the officers knew she would not be home, however, section 808.6 was not violated unless the statute requires officers executing a search warrant to make some effort to locate an absent occupant of premises and seek permission to enter before entering in the person's absence. No such requirement is expressed in the statute. If it exists, it must be found by implication.

Before the 1978 revision, the knock and announce provision was in section 751.9, The Code 1977, which provided:

The officer may break open any outer or inner door or window of a house, or any part thereof, of anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.

This statute has been part of our law since 1851. It incorporated a requirement recognized at common law. State v. Brown, 253 N.W.2d 601, 602 (Iowa 1977). Because of its common law origin, we held that section 751.9 was subject to the interpretations and exceptions recognized at common law. Id. at 602-04. We also held that federal cases interpreting the comparable federal statute, 18 U.S.C. section 3109, were persuasive authority in interpreting our prior statute. Id. at 603; see State v. Iverson, 272 N.W.2d 1, 5 (Iowa 1978).

No court in any reported decision appears to have held that a knock and announce statute incorporating the common law concept will bar a search when no one is present in the...