State v. Holliday

• Decision Date: 24 July 1969
• Docket Number: No. 53445,53445
• Citation: 169 N.W.2d 768
• Parties: STATE of Iowa, Plaintiff, v. Gibson C. HOLLIDAY, Judge of the Ninth Judicial District of Iowa, Defendant.
• Court: Iowa Supreme Court

Page 768

169 N.W.2d 768

STATE of Iowa, Plaintiff, v. Gibson C. HOLLIDAY, Judge of the Ninth Judicial District of Iowa, Defendant.

No. 53445.

Supreme Court of Iowa.

July 24, 1969.

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

Ben E. Kubby and John P. Roehrick, Des Moines, for defendant.

SNELL, Justice.

This case is before us on certiorari to review an order of the trial court sustaining a motion to suppress evidence of a pen register attached to a subscriber's telephone line.

On March 7, 1968 the Polk County grand jury returned an indictment charging Marlene James with the crime of making a threatening telephone call as defined in Chapter 416, Acts of the 62nd General Assembly of the State of Iowa. This statute makes unlawful and provides a penalty for making telephone calls such as were alleged.

Attached to the indictment were minutes of testimony of witnesses. A brief summary will suffice for our present problem.

Marilou J. McMurray testified that she had received numerous, anonymous, threatening and abusive telephone calls. (Over 70 between April 1967 and October 1967). She knew Marlene James and recognized the voice of the caller as the voice of Mrs. James. Mrs. McMurray complained to the telephone company. The telephone company service representative requested she keep a record of the calls. She did so. The telephone company attached a pen register to Mrs. James' telephone line. The pen register produced a record of the telephone numbers called from Mrs. James' phone. It showed that Mrs. McMurray's number was called five times between 9:00 a.m. October 8, 1967 and 8:30 a.m. October 9, 1967. This record corresponded to the record kept by Mrs. McMurray.

Defendant, Marlene James, moved to suppress all evidence obtained as a result of the pen register attached to her telephone line 'at the request of one Marilou J. McMurray' as violative of her constitutional rights.

At the hearing on this motion it appeared that the pen register had been uned without the knowledge or consent of Mrs. James.

An explanation and exhibit from a pen register illustrated that only the numbers called were recorded. There was no listening to or recording of any voice or message of any kind. It does not appear that the machine was capable of doing more than record the numbers.

The court's calendar shows: 'Motion to Suppress--'Pen-Register' sustained.' The transcript shows:

'THE COURT: It will be the ruling of the Court that the Motion to Suppress will be sustained insofar as the information or data taken by the pen register from the telephone number of the defendant on October 8, 1968, which was without her permission or sanction. That is the only part that will be suppressed.

'It is my understanding that the Supreme Court of the United States has ruled that that cannot be done. That is the extent of the ruling of the Court.'

On petition of the State and after hearing we granted certiorari and stayed lower court proceedings until determination herein or further order. Return to the writ has been made.

In this determination the State as petitioner is plaintiff and the respondent judge is defendant.

I. It is first urged by defendant herein 'that the ruling of the trial court was within his judicial discretion, and was not in fact an illegal ruling, such as to allow review by means of certiorari.'

We do not agree.

We have before us law questions only. We are not now reviewing fact questions.

In State ex rel. Rankin v. Peisen, 233 Iowa 865, 868, 10 N.W.2d 645, we reviewed the function of certiorari. We held the case involved law questions only and that the trial court's ruling was reviewable by certiorari.

In State v. Rees, 258 Iowa 813, 816, 139 N.W.2d 406, we said:

'Accused contends certiorari will not stand to test an order of Court suppressing evidence in a criminal case. We do not agree. In Hohl v. Board of Education, 250 Iowa 502, 94 N.W.2d 787, we recognized a tendency to broaden the scope of certiorari where no appeal is permitted, and substantial justice would not be done unless review by certiorari be allowed.

'In State ex rel. Fletcher v. District Court, 213 Iowa 822, 238 N.W. 290, 80 A.L.R. 339, we recognized the common law right of the State to review by certiorari in criminal cases under certain circumstances.

'A review of the law issue here presented is fully warranted. If this review were to be refused the State, if correct in the position taken, would be faced with a prosecution of the accused unjustly and irreparably deprived of material evidence. See State ex rel. Rankin v. Peisen, 233 Iowa 865, 868, 10 N.W.2d 645; State v. District Court, 248 Iowa 250, 253, 80 N.W.2d 555.'

In State v. Eads, Iowa, 166 N.W.2d 766, 768, we said:

'The State seeks to test the legality of this order by writ of certiorari. This is permissible under our previous holdings. (Citations)'

II. The Motion to Suppress Evidence was based on claimed invasion of constitutional rights with particular reference to the Fourth and Fifth Amendments to the Constitution of the United States.

Neither of these amendments has any application to the case before us. The Fourth Amendment guards against unreasonable searches and seizures.

There is not a scintilla of evidence that the pen register was attached to the telephone line at the request of the police or any prosecution agency.

'Constitutional provisions prohibiting unreasonable searches and seizures are intended to protect against action by the government, its officials and agents, and neither the federal provision nor those of the states have any application to the unauthorized acts of private individuals.' 79 C.J.S. Searches and Seizures § 5c, page 783.

'The rule under which evidence obtained by an unlawful search and seizure is not admissible against an accused has been held not to apply where the unlawful search was made by a private individual acting on his own initiative. Thus, a trespasser may testify to pertinent facts observed by him or may put in evidence pertinent articles or papers found by him while trespassing; he may be held responsible civilly and, perhaps, criminally for the trespass, but his testimony is not thereby rendered incompetent. It has likewise been held that evidence disclosed by an employer's search of his employee's car, where the employer then reported the employee to the police, was not inadmissible in the prosecution of the employee for theft. Similarly, it has been held that shoplifting evidence obtained in an unreasonable search and seizure by a private store detective and subsequently delivered to the state prosecuting authorities was admissible. However, if the private person perpetrates a lwless entry and seizure as the agent of public officials, the vicarious violation of constitutional limitations demands invocation of the exclusionary rule.' 29 Am.Jur.2d, Evidence, § 417, page 476. Citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159, People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505, People v. Fierro, 236 Cal.App.2d 344, 46 Cal.Rptr. 132, Sackler v. Sackler, 15 N.Y.2d 40, 255 N.Y.S.2d 83, 203 N.E.2d 481, 5 A.L.R.3d 664. See also Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.

Thus it appears well settled that the Fourth Amendment restriction against unreasonable searches and seizures applies to federal and state officers but not to private persons who are acting on their own. Burdeau v. McDowell, supra. See also Harmon v. Commonwealth, discussed infra. The evidence so obtained by an individual does not fall within the exclusionary rule and is admissible in a trial. The parties involved in the use of the pen register are the telephone company and the complaining witness neither of whom is an agent of federal or state governments.

III. The Fifth Amendment protects an accused from being compelled 'to be a witness against himself.'

The Fourteenth Amendment makes the Fifth Amendment applicable to proceedings in state courts. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. The pen register involved here is not within the purview of the Fifth Amendment.

Here there was no compulsion, no interrogation, no evidence of any response by anyone, no harassment of the person calling, no abuse, no eavesdropping, no interruption of any call, no recording of any conversation or voice, no identification of who was calling. There was nothing beyond a mechanically made record of the telephone numbers called from the number of the line to which the pen register was attached.

It should be kept in mind that we are not here considering a case of eavesdropping and listening by means of a wire tap or electronic 'bugging' that permits eavesdropping by microphone rather than wire tap. See discussion of these devices and prohibitory statutes in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, mentioned, infra.

Reduced to simple terms and stripped of its many ramifications the purpose of the Fifth Amendment was to guard against torture induced confessions and to protect an accused from being forced to convict himself by his own words.

There is nothing in the Fifth Amendment that bars evidence as to what an accused voluntarily said or did. The bar is against what an accused was forced to say.

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, involved the use of a blood analysis. There was no voluntary consent to the withdrawal of defendant's blood. The court held that there was no constitutional protection against the use of such evidence. These statements appear:

'We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.

'It could not be denied that in requiring peti...