State v. Gogg, 96-387

Citation561 N.W.2d 360
Decision Date26 March 1997
Docket NumberNo. 96-387,96-387
PartiesSTATE of Iowa, Appellant, v. Lawrence GOGG, Kimberly Mead, Richard Shaw, Mark Drilling and Charles Hobert, Appellees.
CourtUnited States State Supreme Court of Iowa

Thomas J. Miller, Attorney General, Susan M. Crawford, Assistant Attorney General, Jerry Folkers, County Attorney, and Mark L. Walk, Assistant County Attorney, for appellant.

Russell Schroeder, Jr. of Schroeder Law Office, Charles City, for appellees.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, LAVORATO, and TERNUS, JJ.

TERNUS, Justice.

Pursuant to a warrant, police searched the residence of defendants, Lawrence Gogg and Kimberly Mead, and seized various items of contraband. Criminal charges were brought against Gogg and Mead, as well as three individuals present when the search warrant was executed, defendants Richard Shaw, Mark Drilling and Charles Hobert. Prior to trial, all defendants filed identical motions to suppress, claiming there was no probable cause for issuing the search warrant. The district court sustained the motions and we granted the State's application for discretionary review. We affirm in part, reverse in part and remand.

I. Background Facts and Proceedings.

Two thefts occurred at the IBP hog buying station in Charles City, Iowa in the summer of 1995. The first was discovered on July 4, 1995, and the second was discovered on August 1, 1995. Officer Terry Mork investigated these thefts and on August 7, 1995, presented an application for a search warrant to the district court based on information he had obtained from a confidential informant.

Appended to the search warrant application were three attachments: (1) a checklist completed by Officer Mork concerning the reliability of the confidential informant; (2) a list of the property to be seized; and (3) an affidavit signed by Officer Mork reciting the factual basis for issuance of the search warrant. An assistant county attorney reviewed and signed the affidavit; it was then presented to a district court judge who issued the warrant. The warrant authorized the search of a home where Gogg and Mead lived.

A deputy sheriff executed the search warrant the same day. He seized a powdery substance, drug paraphernalia, telephones and computer equipment. All the defendants were present when the search warrant was executed and all were apparently searched. The record does not reveal what, if anything, was found on their persons.

All five defendants were subsequently charged with conspiracy to manufacture or deliver methamphetamine and possession with intent to deliver methamphetamine. See Iowa Code §§ 124.401(1), .401(3) (1995). All defendants except Hobert were also charged with possession of methamphetamine. See id. § 124.401(3). In addition, Mead was charged with possession of marijuana, see id., and Gogg and Mead were charged with theft in the second degree, see id. §§ 714.1(4), .2(2).

The defendants filed identical motions to suppress claiming the search warrant lacked probable cause because (1) the confidential informant was not reliable, (2) the stolen items were not described with sufficient particularity, (3) there was an insufficient showing of a nexus between criminal activity and the items to be seized, (4) there was no showing of a nexus between the drugs to be seized and the residence to be searched, (5) the information from the confidential informant was stale, and (6) there was no probable cause to search the three defendants who happened to be on the premises when the search warrant was executed. Officer Mork testified briefly at the hearing on these motions. The district court was concerned by the obvious lack of precision in the officer's affidavit and suppressed the evidence. Although the court ruled the confidential informant was reliable, the court concluded the warrant was not supported by probable cause for the reasons urged by the defendants with one exception. That exception was the contention there was not probable cause to search the three defendants who did not reside at the location searched. The district court found it unnecessary to rule on this issue.

We granted the State's application for discretionary review. See Iowa R.App. P. 201.

II. Scope of Review.

Because the defendants challenge the search on constitutional grounds, our review is de novo. State v. Randle, 555 N.W.2d 666, 668 (Iowa 1996). We do not, however, make an independent determination of probable cause; we merely decide whether the issuing judge had a substantial basis for concluding probable cause existed. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). In determining whether a substantial basis existed for a finding of probable cause, we are "limited to consideration of only that information, reduced to writing, which was actually presented to the [judge] at the time the application for warrant was made." State v. Godbersen, 493 N.W.2d 852, 855 (Iowa 1992); accord Randle, 555 N.W.2d at 668-69.

III. Probable Cause.

The Fourth Amendment requires a search warrant to be supported by probable cause. U.S. Const. amends. IV, XIV, § 1. The test for probable cause is well established: "whether a person of reasonable prudence would believe a crime was committed on the premises to be searched or evidence of a crime could be located there." State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987). Probable cause to search requires a probability determination that "(1) the items sought are connected to criminal activity and (2) the items sought will be found in the place to be searched." United States v. Edmiston, 46 F.3d 786, 789 (8th Cir.1995); see Weir, 414 N.W.2d at 330. The issuing judge "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information," probable cause exists. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983); accord State v. Hennon, 314 N.W.2d 405, 407 (Iowa 1982). In doing so, the judge may rely on "reasonable, common sense inferences" from the information presented. See Green, 540 N.W.2d at 655.

The same approach is followed in determining whether evidence seized pursuant to a warrant must be suppressed; the affidavit of probable cause is interpreted in a common sense, rather than a hypertechnical, manner. Gates, 462 U.S. at 232, 103 S.Ct. at 2329, 76 L.Ed.2d at 544; Green, 540 N.W.2d at 655. In addition, we draw all reasonable inferences to support the judge's finding of probable cause, State v. Padavich, 536 N.W.2d 743, 747 (Iowa 1995), and give great deference to the judge's finding, Green, 540 N.W.2d at 655. Close cases are decided in favor of upholding the validity of the warrant. Godbersen, 493 N.W.2d at 854-55; Hennon, 314 N.W.2d at 407. If a warrant is held to permit places to be searched or items to be seized for which probable cause is lacking, the warrant is nevertheless valid for those places and items described for which probable cause exists. Randle, 555 N.W.2d at 671; 2 Wayne R. LaFave, Search and Seizure § 4.6(f), at 580-83 (1996) [hereinafter "LaFave"].

Before we address the State's challenges to the court's suppression ruling, we first determine the record upon which our review is based. That requires an assessment of the confidential informant's credibility which the defendants attacked in the district court and again contest on appeal.

IV. Confidential Informant.

In concluding probable cause for the warrant existed, the issuing judge made a finding on the endorsement to the warrant application that the information supplied by the confidential informant was credible because "[s]worn testimony indicates this informant has given reliable information on previous occasions." See Iowa Code § 808.3 (requiring written determination of credibility of informant's information). 1 The issuing judge also wrote on the endorsement that "Officer Mork indicated the confidential informant has given reliable information on several prior occasions." The judge's finding of credibility was presumably based on (1) Officer Mork's statements to the issuing judge when the application was presented to the court, and (2) his representations in one of the attachments to the warrant application that the confidential informant had supplied information in the past on eight occasions and had not given false information on these occasions.

At the hearing on the defendants' motions to suppress, Officer Mork testified the information supplied by the informant had been verified in only two instances and the information provided by the informant had never led to an arrest or a conviction. The defendants contend, based on this testimony, that Officer Mork's statement to the issuing judge that the confidential informant had given reliable information on several occasions in the past is inaccurate. If Officer Mork intentionally or recklessly made a false statement, the court may not consider it in assessing probable cause. See State v. Seager, 341 N.W.2d 420, 427 (Iowa 1983) (holding intentionally false or false statements made with a reckless disregard for the truth must be excised from the application). The defendants also argue that even if Officer Mork's statement is not inaccurate, there was not a substantial basis in the record before the issuing judge to support a finding of the informant's credibility.

A. Accuracy of Officer Mork's statement to issuing judge. The defendants bear the burden of establishing an intentional or reckless misrepresentation. State v. Paterno, 309 N.W.2d 420, 425 (Iowa 1981). In deciding this issue, we may consider all relevant facts and circumstances. State v. Post, 286 N.W.2d 195, 202 (Iowa 1979).

Contrary to the defendants' view of the record, we perceive no conflict between Officer Mork's statement to the issuing judge and his testimony at the suppression hearing. Nothing Officer Mork said at the suppression hearing...

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