State v. Nelson
| Decision Date | 18 November 1941 |
| Docket Number | 45583. |
| Citation | 300 N.W. 685,231 Iowa 177 |
| Parties | STATE v. NELSON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Franklin County; Hon. O. J. Henderson Judge.
Defendant was convicted of the crime of illegal possession of alcohol. It was also charged in the information filed by the County Attorney that the defendant had been convicted twice previously of violations of the intoxicating liquor laws of Iowa. The defendant contended that the evidence and exhibits used in the trial had been obtained by an illegal search of his home. From the judgment and sentence entered, defendant appeals.
Affirmed.
John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and James E. Coonley, Co. Atty., of Hampton, for plaintiff-appellee.
C. A Smedal, of Ames, for defendant-appellant.
The defendant was charged in a county attorney's information with the crime of illegal possession of intoxicating liquor, and was further charged with two previous convictions of the intoxicating liquor laws of Iowa. The defendant entered a plea of not guilty and upon trial the jury returned a verdict of guilty. A motion for a new trial and exceptions to instructions were submitted to the court. In the motion for a new trial the principal question presented to the court pertained to the admissibility of certain evidence obtained under a claimed illegal search warrant. The motion for a new trial, exceptions to instructions and other motions presented, were overruled and the defendant was sentenced. He has appealed to this court.
The facts in this case may be briefly summarized as follows:
The defendant and his family, at the time charged in the information, were residents of Iowa Falls, Iowa. Early in the morning of January 16, 1940, the sheriff of Franklin County, accompanied by assisting officers, went to the residence of the defendant and searched his home for intoxicating liquor. The sheriff had in his possession a search warrant originally dated June 12, 1939, which authorized the search. The sheriff admitted at the trial that the date of the search warrant was changed from June 12, 1939, to January 16, 1940, but testified that before the search in question was made he telephoned the magistrate who had issued the search warrant and obtained his permission to change the date. A small amount of intoxicating liquor was found on the defendant's premises.
The defendant during the trial, by objections to the admissibility of testimony and the exhibits offered in evidence, raised the question as to the right of the court to admit the testimony and exhibits obtained as the result of an unlawful and illegal search. As previously stated, this question is further raised in the motion for a new trial. It was also presented in several other motions filed wherein the defendant again raised this particular question.
The state does not effectively deny that the search warrant which was used in this case was invalid. No search had been made within the time limit after it was issued, as provided by statute. Section 13441-12, 1939 Code of Iowa. Therefore, the principal question before us is as to whether or not the evidence and exhibits obtained by virtue of this illegal search could be received and properly submitted to the jury in its consideration of the defendant's guilt.
The legal proposition raised by the defendant has been repeatedly presented to this court for consideration, and it has often given expression of its conclusions and holdings relative to the objections here made on behalf of the defendant. Counsel for the defendant, in a most forceful and able presentation, asks this court in its ruling on the proposition here presented to reverse our holding as expressed in State v. Tonn, 1923, 195 Iowa 94, 99, 191 N.W. 530. We there held that evidence obtained under a claimed illegal search was admissible and reversed our previous holdings relative to this question as expressed in State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, 94 Am.St.Rep. 323; State v. Sheridan, 121 Iowa 164, 96 N.W. 730; and State v. Rowley, Iowa, 187 N.W. 7. This last opinion was later withdrawn and the final expression of this court as to this particular case is found in State v. Rowley, 197 Iowa 977, 195 N.W. 881. Counsel for the appellant asks that we recede from our present position and follow the holdings as set forth in our earlier cases. It is contended that, in receiving the questioned evidence in this instant case, the defendant's constitutional rights as to unreasonable search and seizure, as set forth in the Fourth Amendment to the Constitution of the United States and Article One, Section Eight of the Constitution of the State of Iowa, are violated.
In State v. Tonn, supra, Faville, J., speaking for this court, set forth the historical development of the rule which we now follow. In that opinion he commented upon the two divergent courses which the several courts of this nation have followed and discussed the development of the Federal rule which was first expressed in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, decided in 1885. Since this court announced its ruling in State v. Tonn, supra, we have repeatedly adhered to the expressions there made on this question in the following cases: State v. Gorman, 1923, 196 Iowa 237, 239, 194 N.W. 225; Joyner v. Utterback, 1923, 196 Iowa 1040, 1044, 195 N.W. 594; State v. Rowley, 1923, 197 Iowa 977, 979, 195 N.W. 831; Lucia v. Utterback, 1924, 197 Iowa 1181, 1186, 198 N.W. 626; State v. Parenti, 1925, 200 Iowa 333, 334, 202 N.W. 77; State v. Wenks, 1925, 200 Iowa 669, 670, 202 N.W. 753; Hammer v. Utterback, 1926, 202 Iowa 50, 52, 209 N.W. 522; State v. Korth, 1927, 204 Iowa 667, 668, 215 N.W. 706; State v. Lambertti, 1927, 204 Iowa 670, 672, 215 N.W. 752; State v. Bamsey, 1929, 208 Iowa 796, 799, 223 N.W. 873, certiorari denied in, 1929, 280 U.S. 595, 50 S.Ct. 40, 74 L.Ed. 642; State v. Rollinger, 1929, 208 Iowa 1155, 1156, 225 N.W. 841; State v. Bourgeois, 1930, 210 Iowa 1129, 1131, 229 N.W. 231.
In State v. Rowley, 1933, 216 Iowa 140, 145, 248 N.W. 340; State v. Weltha, 1940, 228 Iowa 519, 527, 292 N.W. 148; and Vilas v. Iowa State Board of Assessment and Review, 1937, 223 Iowa 604, 615, 273 N.W. 338, there are found statements that might indicate that the majority of the court questioned the soundness of the rule announced in State v. Tonn, supra. However, we have not in any degree departed from our previous holding, and we trust that in our expressions as here made in the instant case we will again, in no uncertain language, indicate our established and definite rule.
The question that is before us on this appeal has been the subject of innumerable judicial opinions, and as previously stated, there are two divergent holdings.
In the editorial comment noted in 88 A.L.R.(1934) 349, it is stated that the following states adhere to the rule of admissibility of evidence as complained of in the instant case: Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Pennsylvania, South Carolina, Utah, Vermont, and Virginia. This makes a total of 26 states. Since the preparation of the note in 88 A.L.R. 349, supra, the Supreme Court of Ohio in State v. Lindway, 1936, 131 Ohio 166, 182, 2 N.E.2d 490, appeal dismissed in 1936, 299 U.S. 506, 57 S.Ct. 36, 81 L.Ed. 375, apparently allied itself with the majority rule and held that evidence obtained by an unlawful search was admissible in evidence and that the admission of such evidence did not violate the constitutional immunity from self incrimination and from unreasonable searches and seizures. With the Ohio court taking the position it now has there are 27 state courts that adhere to the rule as expressed in our Tonn case. There are 18 states which hold that evidence of the character as presented in the instant case is inadmissible. These states are as follows: Florida, Idaho, Illinois, Indiana, Kentucky, Michigan, Mississippi, Missouri, Montana, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Washington, West Virginia, Wisconsin and Wyoming. The federal courts, following the Boyd case, supra, hold that evidence unlawfully obtained by federal officers is inadmissible.
This court, speaking through this majority opinion, is of the firm conviction that evidence of which the defendant complains is admissible and that our holding in State v. Tonn should be followed. We are conscious of the rights which were sought by our forefathers in writing into the Federal and State Constitutions the restriction as to unreasonable search and seizure. The wrongs sought to be guarded against, as shown by historical research, and which prompted the inclusion of the Fourth Amendment to our Federal Constitution, grew out of the issuance of general search warrants during the years of colonial development. It was to avoid a recurrence of this oppressive action that this amendment was demanded as an additional safeguard to the citizens of the several states from what was feared would be an oppressive Federal Government.
In this connection attention is called to the case of Commonwealth v. Wilkins, 1923, 243 Mass. 356, 138 N.E. 11, 13, where it is stated:
" * * * The Fourth Amendment to the federal Constitution does not apply to proceedings in the state courts. As was said in 1887 by Chief Justice Waite in Spies v. Illinois, 123 U.S. 131, 166, 8 S.Ct. 21, 24 (31 L.Ed. 80):
‘ That the first ten Articles of Amendment (to the United States Constitution) were not intended to limit the powers of the state government in respect to their...
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