State v. Green

• Decision Date: 22 November 1995
• Docket Number: No. 94-1050,94-1050
• Citation: 540 N.W.2d 649
• Parties: STATE of Iowa, Appellee, v. James Byron GREEN, Appellant.
• Court: Iowa Supreme Court

Page 649

540 N.W.2d 649

STATE of Iowa, Appellee, v. James Byron GREEN, Appellant.

No. 94-1050.

Supreme Court of Iowa.

Nov. 22, 1995.

Linda Del Gallo, State Appellate Defender, and Ahmet S. Gonlubol, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

NEUMAN, Justice.

The State charged James Green with murder after a search of his residence yielded the decomposed body of his former girlfriend, Rosemary McGivney. Green challenged the search by a pretrial motion to suppress. The district court, analyzing the sufficiency of the warrant in terms of proof necessary to uphold an administrative search for a missing person, overruled the motion. The case then proceeded to a bench trial on stipulated evidence, including Green's detailed confession. The court found him guilty of second-degree murder in violation of Iowa Code sections 707.1 and 707.3 (1993).

On appeal, Green renews his challenge to the issuance of the search warrant. He contends that (1) the search of his home was authorized pursuant to a criminal search warrant, not an administrative warrant, and (2) the facts before the magistrate were insufficient to support a probable cause finding. Although we agree the sufficiency of the warrant must be measured by criminal--not administrative--warrant standards, we believe the record amply supports the issuance of a warrant here. We, therefore, affirm.

I. Facts.

Green met Rosemary McGivney in 1989. They became romantically involved and eventually moved into a house in Mason City. Both had a history of mental illness. Their relationship was described as "stormy."

According to Green's statement to the police, Rosemary announced on February 5, 1993, that she was "fed up" with Green and planned to leave him. Green followed her to the back door, begging her to stay. As he tried to kiss her, she fell down the back stairs, landing in the basement. She appeared unconscious. Green thought about calling an ambulance, but soon began hearing voices telling him to kill her. He then grabbed a snow shovel and clubbed her repeatedly about the head. Evidence collected by the medical examiner revealed that Rosemary died, not from the fall, but from blows to her head.

Green lived with the corpse in his basement for the next seven months. He moved it under the stairs and covered it with a blanket. Friends who stopped by commented about the odor; Green passed it off as "water in the basement."

Meanwhile, when Rosemary's relatives inquired about her whereabouts, Green concocted a story that she had left with another man in a pickup truck. This apparently did not strike Rosemary's mother, Mary Van Hamme, as unusual. By mid-August, however, Van Hamme became concerned that her daughter might have "been thrown over a cliff someplace or something." She contacted the Mason City police who agreed to investigate.

Officer Gregory Scott went to Green's residence to inquire about Rosemary. Green told Scott that he had not seen her since February, when she left with another man. Green refused to permit a search of his residence. Before leaving, Scott noticed that Rosemary's car was in the garage. Green explained that he had paid for the car and McGivney left it behind when she went with the other man. Scott returned to the police station and relayed this information to Lieutenant Ellingson and Officer Frank Stearns. Because Stearns knew Green, he thought Green might let him look around. Stearns and Scott returned to Green's residence, but Green gave Stearns the same story. When Stearns asked if he could look inside the house, Green became extremely agitated, shouted obscenities, and again refused to consent to a search.

Officer Scott then assisted Van Hamme in filling out a missing persons report. He also applied for a search warrant, attaching a copy of the missing persons report and a report prepared by Lieutenant Ellingson. The application was presented to a magistrate, who treated it as one for a criminal search warrant. The magistrate found there was probable cause to search and issued a warrant.

On the evening of August 15, 1993, police executed the warrant. Green was not at home. Officers found McGivney's decomposed body in the basement underneath some trash bags. Green arrived home while the officers were conducting their search, but after the body had been found. Green was upset that his home was being searched; the police told him they had a warrant. While being patted down for weapons, Green suddenly blurted out, "I f---ing murdered Rosemary. I f---ing murdered her, so no big deal." Green was then arrested and taken to the police station where he gave statements relating the details of McGivney's murder.

II. Motion to Suppress.

Green filed a pretrial motion to suppress claiming (1) the warrant was issued without probable cause that a crime had been committed, (2) that no exigent circumstances existed to justify a search without probable cause, and (3) material misrepresentations by the officers formed the basis for the issuing magistrate's decision, rendering it invalid. Only the first and third claims are renewed on appeal.

A. Probable Cause. Resolution of the case is complicated by the fact that Mary Van Hamme and the investigating officers seemed uncertain, in retrospect, about whether the warrant was sought to collect evidence of a crime or merely to gain clues to Rosemary's whereabouts. The warrant application recited that Rosemary's belongings, located at Green's house and garage, were subject to search as property "used or possessed with the intent to be used as the means of committing a public offense," "concealed to prevent an offense from being discovered," or "relevant and material as evidence in a criminal prosecution." The application was treated by the magistrate as one for a criminal warrant under Iowa Code section 808.3. Yet at the hearing on the motion to suppress, both Mary Van Hamme and Officer Stearns stated that when the application was submitted, neither believed that a crime had been committed.

The district court attempted to reconcile this inconsistency by scrutinizing the warrant, not "within the context of a criminal search warrant under section 808.3 ... but rather [ ] within the parameters of a noncriminal search warrant issued under section 808.14...." Section 808.14 states:

The courts and other appropriate agencies of the judicial branch of the government of this state may issue administrative search warrants, in accordance with the statutory and common law requirements for the issuance of such warrants, to all governmental agencies or bodies expressly or impliedly provided with statutory or constitutional home rule authority for inspections to the extent necessary for the agency or body to carry out such authority, to be executed or otherwise carried out by an officer or employee of the agency or body.

This characterization is significant because administrative warrants are held to a lesser standard of probable cause than criminal search warrants. Camara v. Municipal Court, 387 U.S. 523, 537-38, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930, 940 (1967). The purpose of such a warrant is not to discover evidence of crime but to secure compliance with code standards. Id. Thus a finding of probable cause turns on the reasonableness of the inspection, not on proof that a violation would be found in a particular location. Id. at 534-35, 87 S.Ct. at 1734, 18 L.Ed.2d at 939. This test involves merely "balancing the need to search against the invasion which the search entails." Id. at 537, 87 S.Ct. at 1735, 18 L.Ed.2d at 940.

A number of cases have upheld the use of such searches by police officers. See, e.g., Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706, 718 (1973) (officer's concern for public safety justified search of car); South Dakota v. Opperman, 428 U.S. 364, 375, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000, 1009 (1976) (caretaking search of lawfully impounded automobile upheld); State v. Mitchell, 498 N.W.2d 691, 693-94 (Iowa 1993) (officer's stop for equipment vehicle violation upheld even though not based upon suspicion of criminal activity). Underlying these decisions is the rationale that police officers' duties extend beyond crime detection and investigation to what is sometimes referred to as the "caretaking function" of the police. Mitchell, 498 N.W.2d at 694. At least one case has extended this "caretaking function" to the search of a private residence for a missing person. State v. Beede, 119 N.H. 620, 406 A.2d 125, 130 (1979). Although Beede involved a warrantless search, the New Hampshire court found the facts (not dissimilar from the ones before us) "would have justified a person of ordinary caution in the belief that it would be reasonable to enter for the non-criminal purpose of looking for the defendant or [the victim]." Id.

The district court's reliance on this line of authority is seriously weakened, however, by the fact that our missing persons statute, Iowa Code chapter 694, grants the police no authority to conduct "inspections." The statute merely authorizes the collection and dissemination of reports, and the establishment of a missing person information clearinghouse. See Iowa Code §§ 694.2-.4, .10. Without statutory authority to conduct inspections for missing persons, no basis for the issuance of an administrative warrant under Iowa Code section 808.14 exists. See Meier v. Sulhoff, 360 N.W.2d 722, 726 (Iowa 1985) ("Because there is no common-law right to issue a search warrant ... we lack the authority to expand by judicial fiat the purposes fixed by the legislature for which search warrants may lawfully issue."); accord Fisher v. Sedgwick, 364 N.W.2d 183, 184 (Iowa 1985).

We may, however, uphold the district court's decision on any...