State v. Hansen

• Citation: 286 N.W.2d 163
• Decision Date: 19 December 1979
• Docket Number: No. 63011,63011
• Parties: STATE of Iowa, Appellant, v. Elaine Sue HANSEN, Appellee.
• Court: United States State Supreme Court of Iowa

Page 163

286 N.W.2d 163

STATE of Iowa, Appellant, v. Elaine Sue HANSEN, Appellee.

No. 63011.

Supreme Court of Iowa.

Dec. 19, 1979.

Thomas J. Miller, Atty. Gen., Kathy A. Krewer and Richard L. Richards, Asst. Attys. Gen., for appellant.

Richard L. Mock, of Underhill & Underhill, Onawa, for appellee.

Considered by LeGRAND, P. J., and REES, UHLENHOPP, ALLBEE and LARSON, JJ.

REES, Justice.

This is an appeal by the State, under our discretionary review, from a ruling of the trial court suppressing certain evidence in a prosecution for the crime of first degree arson under section 712.2, Code Supp.1977. We affirm in part, reverse in part, and remand for further proceedings.

On February 1, 1978 a fire occurred at the house rented and occupied by the defendant, Elaine Sue Hansen, and her family in rural Monona County. Damage was not extensive and the fire was extinguished that morning. On the same day an unsuccessful attempt was made by the authorities to contact Ronald Evilsizer, regional deputy state fire marshal, regarding investigation of the fire. Early the following afternoon agent Evilsizer went to the fire scene, accompanied by the Monona County sheriff and the landlord of the premises, to conduct an inquiry into the cause of the fire as permitted by sections 100.1(2) and 100.2, The Code, 1977. No search warrant had been obtained; nor did the defendant consent to the search of the premises. During the course of the inspection, the defendant arrived at the house and cooperated with Evilsizer, answering questions. Photographs were taken and specimens were gathered at the scene.

On February 8 the defendant, as arranged by her family and agent Evilsizer, met with the investigator and the assistant county attorney to discuss the possibility of medical treatment for the defendant as an alternative to criminal proceedings. At no time were Miranda warnings given to the defendant to apprise her of her constitutional rights.

On March 23 agent Evilsizer again entered the house, without a search warrant or the consent of the defendant, and took a specimen of the carpet which had been partially burned in the fire.

A grand jury indictment was filed against the defendant on April 17, 1978 and she was arraigned later the same day. On October 26 defendant filed a motion to suppress evidence gathered at the fire scene and of all conversations between her and the law enforcement officials. The state resisted, alleging the motion was untimely under Iowa R.Crim.P. 10(4), which requires that such motions be filed within thirty days of arraignment in the absence of good cause for delay. The court ruled that the motion complied with Iowa R.Crim.P. 11(1), which deals specifically with motions to suppress, in that it was filed prior to trial. The trial court also sustained defendant's motion to suppress. From these rulings the State made application for discretionary review which we granted. See Iowa R.Crim.P. 11(2).

The State presents the following issues for our review:

(1) Did the trial court err in sustaining defendant's motion to suppress over the State's objection that it was untimely under Iowa R.Crim.P. 10(4)?

(2) Did the trial court err in applying Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), retroactively to this case?

(3) Did the trial court err in its application of Michigan v. Tyler to the facts of this case?

(4) Did the trial court err in applying Miranda v. Arizona in this case due to the lack of "custodial interrogation"?

I. The State first contends that the trial court erred in sustaining defendant's motion to suppress since it failed to comply with Iowa R.Crim.P. 10(4). Rule 10 does apply to motions to suppress. See Iowa R.Crim.P. 10(2) (c). Rule 10(4) places the following restriction on such motions: "Motions hereunder, except a motion for a bill of particulars, shall be filed either within thirty days after arraignment or prior to the impaneling of the trial jury, whichever event occurs earlier, unless the period for filing is extended by the court for good cause shown". Initially it would appear that the time limitation contained in rule 10(4) is applicable and that it was not met in this case.

Rule 11, on which the trial court based its sustention of the motion, involves only motions for the suppression of evidence and states in relevant part: "The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was unaware of the factual grounds for the motion; but the court in its discretion may entertain the motion at the trial or hearing, upon good cause supported by affidavit". A plain reading of rule 11 tends to support the ruling of the trial court, since it sets only a pretrial deadline before good cause need be shown.

We conclude the trial court was correct in applying rule 11 to the case at bar. Rule 11 involves only motions to suppress evidence, while rule 10 governs all pretrial motions and pleadings. Rule 11 is clearly the more specific provision. Under our canons of construction we will give deference to the more specific of conflicting provisions. E. g., Berger v. General United Group, Inc., 268 N.W.2d 630, 638 (Iowa 1978); State v. Thompson, 253 N.W.2d 608, 609 (Iowa 1977). Rule 11 is clear and unambiguous as to the time constraints it would place upon motions to suppress. Rule 10(2) is consistent with rule 11 in that it provides that motions to suppress must be made prior to trial. To the extent that the general language of rule 10(4) is inconsistent with the terminology of rule 11, rule 11 must be given effect.

The result we reach in resolving this ambiguity in our rules of criminal procedure is supported by practical considerations, as evidenced by the facts of this case. Although the motion to suppress was filed approximately six months following the defendant's arraignment, it was filed one week following the return of agent Evilsizer's deposition, which contained much of the factual basis for the motion to suppress. Often, as here, the factual data upon which suppression would be based is not available until after discovery has been initiated and completed.

We therefore hold that motions to suppress need comply only with the time constraints imposed by Iowa R.Crim.P. 11, rather than those generally applicable to pretrial motions under rule 10(4).

II. The State next asserts the trial court erred in retroactively applying Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), a case decided subsequent to the searches in question. We find no indication in the record of such an argument having been made to the trial court. In briefing the issues of the suppression hearing on appeal both parties argued the merits of the Michigan v. Tyler decision as it related to the searches of defendant's home. We have consistently held that issues not raised before the trial court cannot be raised for the first time on appeal. See, e. g., Beitz v. Horak, 271 N.W.2d 755, 759 (Iowa 1978); Davidson v. Van Lengen, 266 N.W.2d 436, 439 (Iowa 1978). We therefore assume Michigan v. Tyler is applicable and address the remaining issues.

III. The State next contends that the trial court erred in suppressing all evidence taken by agent Evilsizer from the Hansen home. It focuses its argument on the search which took place the afternoon of the day following the fire, contending that Michigan v. Tyler would not require a warrant for that entry. We disagree.

Before reaching the merits of the State's argument, we wish to address several preliminary matters: the nature and extent of defendant's privacy interest in the property at the time of the searches; and the viability of the holding of this court in State v. Rees, 258 Iowa 813, 139 N.W.2d 406 (1966).

At the time of the searches, the Hansen family was not living at the fire scene, but was temporarily housed with relatives several miles away. Much of the Hansens' personal property remained in the dwelling, as the damage from the fire was not extensive. The Supreme Court in Michigan v. Tyler, 436 U.S. at 506, 98 S.Ct. at 1948, 56 L.Ed.2d at 495-96, found the presence of personal effects to give rise to a reasonable and constitutionally protected expectation of privacy. As was noted in People v. Tyler, 399 Mich. 564, 582, 250 N.W.2d 467, 476 (1977):

Simply because a person's home or place of business has been burned does not mean that he has no expectation of privacy regarding whatever of his possessions remains. A fire is not an invitation to any or all to enter to satisfy their curiosity or for any other purpose. It does not open the property to public scrutiny. The property continues to be protected by the law from looters and by the law and the constitution from scrutiny of governmental officials.

Personal papers, family heirlooms and other objects may survive the fire; the owner has a justifiable interest in protecting such property.

Such is clearly the situation here.

We note that some jurisdictions have adopted a "habitability" standard in determining whether reasonable expectations of privacy exist. See State v. Murdock, 160 Mont. 95, 500 P.2d 387 (1972); State v. Vader, 114 N.J.Super. 260, 276 A.2d 151 (1971); People v. Calhoun, 90 Misc.2d 88, 393 N.Y.S.2d 529 (1977). This position seems to us to be unduly narrow and not representative of the Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), reasonable expectation of privacy standard. See generally 3 W. LaFave, Search and Seizure § 10.4, at 260-62 (1978); Note, 30 Wash. & Lee L.Rev. 133 (1973). To the extent that the "habitability" standard is inconsistent with our above-stated position, we do not adopt it. In so doing we reserve general comment upon those instances where fire damage is much more extensive, finding a case-by-case determination of privacy expectations to be most appropriate.

Closely interrelated with the State's retroactivity argument is its contention that ...