State v. Liesche, 57211
| Decision Date | 16 April 1975 |
| Docket Number | No. 57211,57211 |
| Parties | STATE of Iowa, Appellee, v. Charles C. LIESCHE, Jr., Appellant. |
| Court | Iowa Supreme Court |
Ken Sojka, Buckley & Sojka, Harlan, and Frank W. Pechacek, Jr., Smith, Peterson, Beckman, Willson & Peterson, Council Bluffs, for appellant.
Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and Charles L. Smith, III, County Atty., for appellee.
Heard before REYNOLDSON, Acting C.J., and MASON, LeGRAND, REES and McCORMICK, JJ.
Defendant appeals his conviction by jury and sentence for carrying a concealed weapon in violation of Code § 695.2. The determination issue is whether the trial court erred in overruling defendant's pretrial motion to suppress evidence. The motion challenged the validity of a search warrant under which the weapon involved was seized. We find that the motion should have been sustained. The case is reversed and remanded for dismissal.
The weapon in this case was a pistol. It was found in a search of defendant's pickup truck in Missouri Valley in the late afternoon of June 22, 1973. The pistol was under the seat of the vehicle. The search was made under a search warrant obtained a few minutes before the search by Harrison County deputy sheriff Larry McWilliams from justice of the peace Paul Healey.
Defendant filed a pretrial motion to suppress evidence of the search. The motion was later orally supplemented. Upon hearing, the evidence consisted of testimony by justice of the peace Healey, the application for the warrant, and the warrant itself. The hearing was held December 3, 1973, more than five months after the date the warrant was issued.
The application for the warrant did not contain an endorsement showing the name and address of any witness upon whose sworn testimony the warrant was issued, nor did it contain any abstract of such witness' testimony. It did contain an affidavit by deputy McWilliams.
The justice of the peace could not remember clearly the circumstances under which the warrant was issued. He testified that deputy McWilliams was the only witness. He said the deputy swore to the facts recited in his affidavit. That recital was as follows:
'Larry McWilliams, Dep. Sh., being first duly sworn, on oath states that he is a credible resident of the State of Iowa, that he has a substantial reason to believe, and does believe that certain weapons could be * * * (illegally) concealed on his person or in his vehicle, one 1973 Chevrolet, license number BG--2964 * * * by one Charles Clifford Liesche, Jr., * * * at the following described premises, situated in Harrison, County, Iowa, to wit: in a 1973 (tan) Chevrolet pickup * * *.'
The justice of the peace testified the deputy orally told him he was looking for a revolver which the deputy believed defendant had used in a rape offense for which the justice of the peace had about one hour before issued an arrest warrant. The justice of the peace remembered issuing the warrant for defendant's arrest in that case. He said the deputy told him the weapon should either be on defendant's person or in his vehicle. The alleged rape offense apparently occurred some days prior to the date the search warrant was issued. The record does not show deputy McWilliams was under oath when he gave the justice of the peace the information omitted from his affidavit.
The trial court overruled the motion to suppress. Included in the grounds urged by defendant in support of his motion at trial and in support of his assignment of error here are contentions the search warrant was invalid because the justice of the peace did not endorse on the application the data required by § 751.4, The Code, and because the warrant was not issued upon probable cause. The State argues these contentions are without merit and asserts we cannot reach them in any event because reversible error may not be predicated on a trial court order overruling a pretrial motion to suppress.
I. In Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974), we distinguished motions in limine from motions to suppress. We pointed out that a motion to suppress is appropriate to raise questions regarding admissibility of evidence in situations where the court's pretrial determination will ordinarily put an end to the question in the trial court. A question involving the legality of a search and seizure was given as an example. In contrast, a motion in limine ordinarily raises questions to alert the court to an evidentiary problem which may arise during trial. It adds a procedural step to the offer of evidence. The court's final ruling must frequently await the context in which the problem arises at trial.
As a result, we have said reversible error may be predicated on an order overruling a pretrial motion to suppress, although reversible error may not be predicated on an order overruling a pretrial motion in limine. See State v. Untiedt, 224 N.W.2d 1, 2--3 (Iowa 1974), and citations.
We thus reach the merits of defendant's contentions in this case.
II. Defendant contends the warrant was invalid because the justice of the peace did not comply with the endorsement requirement of § 751.4, The Code. In 1969 the legislature amended § 751.4 to add two sentences affecting the procedure to be employed by a judicial officer in issuing a search warrant. Acts First Session 63 G.A., ch. 306, § 2. Those two sentences prescribe an endorsement procedure when the magistrate receives oral testimony in support of the application for the warrant:
In this case the record shows the justice of the peace took oral evidence from deputy McWilliams. We will assume, without deciding, that the deputy was sworn at the time. In this situation the first sentence of the amendment to § 751.4 required the justice of the peace to endorse the deputy's name and address on the search warrant application, together with an abstract of his sworn oral testimony. The second sentence of the amendment is inapplicable.
The justice of the peace did not follow the statute regarding the oral testimony of deputy McWilliams. Therefore we must decide the effect of failure to comply with the endorsement requirement of the statute.
In State v. Spier, 173 N.W.2d 854, 862 (Iowa 1970), a case which arose before but was decided after the amendment to § 751.4, we held the endorsement procedure is mandatory when issuance of a search warrant is based wholly or in part upon oral testimony. We also discussed the purpose of the requirement. We said:
'* * * (I)t is to us now apparent that when a magistrate issues a search warrant based wholly or in part upon sworn testimony presented to him, then (1) the name and address of every person so testifying and an abstract of the testimony of each such witness shall be endorsed on the application, and (2) if the basis for issuance of the warrant is supplied wholly or in part by an informant, the magistrate shall likewise endorse on the application only the identity of the peace officer to whom the informant was given, with an abstract of the factual showing made, under oath or affirmation, upon which the magistrate determined reliability of the informant.
'That, we believe, will fulfill the mandatory requirement set forth in Code section 751.4 chapter 306, Acts of the First Regular Sessions, Sixty-Third General Assembly * * *.
'Moreover, this prescribed procedure will undoubtedly permit a more accurate and meaningful judicial review of the 'probable cause' showing upon which a warrant issuing magistrate acted.'
In State v. Boyd, 224 N.W.2d 609, 616 (Iowa 1974), we commented that this procedure insures the availability of the evidence upon which the finding of probable cause was made, whether by affidavit or oral testimony before the magistrate:
In the Boyd case we adopted a rule permitting a defendant to inquire into the truth of representations upon which...
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State v. Hall
...to trial, defendant filed a motion to suppress evidence. It was overruled. Although not necessary to preserve error, State v. Liesche, 228 N.W.2d 44, 46 (Iowa 1975), defendant unsuccessfully renewed his objections when the challenged evidence was offered at trial. Defendant assigns the admi......
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State v. Dibble
...if he is not apprised, prior to the suppression hearing, of the information that allegedly supported the warrant. See State v. Liesche , 228 N.W.2d 44, 48 (Iowa 1975) (the failure to record statements deprives a defendant of notice of relevant facts and therefore a meaningful opportunity to......
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State v. Angel, 15-1830
...issuing officer's abstract or abstracts of sworn oral testimony. The search warrant must stand or fall on the facts shown in that manner.228 N.W.2d 44, 48 (Iowa 1975). But Liesche stands only for what it says, namely, that the "essential facts bearing on the existence of probable cause" mus......
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F.K., Mother v Ia Dist Ct for Polk County
...all facts supporting an arrest warrant be in writing in a criminal prosecution, seeIowa Code § 804.1 (1999). See State v. Liesche, 228 N.W.2d 44, 46-48 (Iowa 1975) (noting the requirement the magistrate make a written abstract of sworn testimony exists by reason of 1969 legislation); see al......