State v. Niehaus

• Decision Date: 21 February 1990
• Docket Number: No. 89-338,89-338
• Citation: 452 N.W.2d 184
• Parties: STATE of Iowa, Appellee, v. Nanette Kay NIEHAUS, Appellant.
• Court: Iowa Supreme Court

Page 184

452 N.W.2d 184

STATE of Iowa, Appellee, v. Nanette Kay NIEHAUS, Appellant.

No. 89-338.

Supreme Court of Iowa.

Feb. 21, 1990.

As Corrected March 2, 1990 and April 11, 1990.

Theodore R. Hoglan of Fairall, Fairall, Kaplan, Hoglan & Condon, Marshalltown, for appellant.

Thomas J. Miller, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., Brent D. Heeren, County Atty., and Richard R. Vander Mey, Asst. County Atty., for appellee.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO and SNELL, JJ.

SNELL, Justice.

Nanette Kay Niehaus appeals from convictions for possession of a schedule I controlled substance with intent to deliver or manufacture, and possession of marijuana. The events which culminated in Niehaus's arrest and conviction began in August 1987 when Renee Duff reported the theft of a cable control box and other items from a house in Marshalltown she had recently vacated. Niehaus and Lisa Wollard, both acquaintances of Duff, had cleaned the house at the request of Duff's landlady. Niehaus and Wollard were investigated in connection with the theft, but were not arrested or convicted. The case was not solved, and apparently the control box and other items were never found.

On or about June 9, 1988, Duff informed Tama county deputy sheriff Bruce Bolin that Wollard told her that on June 4, 1988, Wollard saw the control box on a table beside the television in the home Niehaus shared with her boyfriend. Bolin asked a few questions of Duff to satisfy himself that no personal animosity existed between either Duff and Niehaus or Wollard and Niehaus. He formed the opinion that neither Duff nor Wollard had any reason to falsify the information, although he did not confirm Duff's story with Wollard. After his conversation with Duff, Bolin went to the Niehaus residence, and observed that cable television could not be installed in the home. In addition, Bolin discovered that Niehaus had been convicted of third-degree theft some ten years earlier, and that both she and Wollard had been subjects of the initial investigation into the theft of the control box. Although Bolin never communicated with Wollard, a warrant to search for the control box was issued primarily on the basis of her alleged conversation with Duff.

Armed with the warrant, Bolin and Tama County Sheriff Mike Richardson went to Niehaus's residence to search for the control box. They did not find it in plain sight and proceeded to search cabinets near the television where it might have been concealed. Although this search did not yield the missing control box, the officers found a quantity of marijuana and drug paraphernalia.

While one of the officers remained to secure the premises, the other obtained a warrant to search the residence and outbuildings for illegal drugs and drug-related items. Pursuant to a search backed by this second warrant, the officers found and seized several hundred grams of marijuana as well as numerous items of drug paraphernalia. Both Niehaus and her boyfriend were charged and convicted.

Prior to trial, Niehaus challenged the first warrant by a motion to suppress. At hearing on the motion, Wollard testified that she had said nothing to Duff regarding the control box, and had not even been in Niehaus's home on June 4. Other evidence demonstrated that Wollard did not convey any information to Duff concerning the control box.

Niehaus's appeal to this court interweaves cases involving affiant's and informant's involvement with search and seizure issues under the Fourth Amendment of the United States Constitution. She does not appeal on state constitutional grounds, nor is Iowa Code section 808.3 applicable, since both Duff and Wollard are named in Bolin's affidavit and the warrant. See State v. Weir, 414 N.W.2d 327, 331 (Iowa 1987).

Niehaus's primary contention is that Deputy Bolin acted with reckless disregard for the truth by failing to confirm the story that Duff told him with Wollard, the alleged source of the information. Niehaus concludes that under the standards announced in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), this information should be deleted from the warrant, and a determination of whether probable cause to issue the warrant existed should be made in the absence of the false information.

Niehaus also urges application of the "two-pronged test" that evolved from the Supreme Court's rulings in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), to determine that the issuing magistrate lacked the necessary information to determine Duff's credibility, since Bolin never bothered to independently confirm its details. We note that the Aguilar -Spinelli test was substantially overruled in the context of a federal fourth amendment challenge by Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983).

Since the information imparted by Duff undergirds both warrants, Niehaus claims that in its absence probable cause did not exist for either warrant, and asks that the evidence upon which her conviction is predicated be suppressed. These two arguments differ in that the first focuses on the veracity of the affiant while the second focuses on informant credibility and the reliability of the information. Nevertheless, they are interrelated in that both are concerned with the reliability of the information the magistrate used in determining to issue the first warrant. They are also similar in that they are both reliant on the fact that Bolin did not check the facts with Wollard.

I. Preservation of Error.

Before dealing with these issues, however, we must address the State's contention that Niehaus failed to preserve error with regard to whether Bolin's application for the warrant was undertaken with reckless disregard for the truth. Noting Niehaus's argument that as Bolin's putative informant, Wollard's credibility was not shown to be sufficiently reliable, the State asserts that the issue of Bolin's alleged disregard for the truth "was barely touched upon."

This court has repeatedly stated that a defendant may not assert an error on appeal unless the error has been preserved at trial. See, e.g., State v. Latham, 366 N.W.2d 181, 183 (Iowa 1985).

The record of the suppression hearing in this case makes it obvious that Niehaus preserved error with regard to both issues. She relied heavily upon the argument that Bolin's failure to communicate with Wollard constituted reckless disregard for the truth. The trial court's ruling dealt specifically with the issue.

II. The Franks Standard.

In Franks, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court developed a means to examine truthfulness of an affiant in presenting evidence to a magistrate supporting issuance of a search warrant. This court adopted the Franks standard in State v. Groff, 323 N.W.2d 204, 206-08 (Iowa 1982). The inquiry adopted by Franks is limited to a determination of whether the affiant was purposely untruthful with regard to a material fact in his or her application for the warrant, or acted with reckless disregard for the truth. Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85, 57 L.Ed.2d at 682. If the court finds that the affiant consciously falsified the challenged information, or acted with reckless disregard for the truth in his or her application for the warrant, the offensive material must be deleted and the remainder of the warrant reviewed to determine whether probable cause existed. Id. 98 S.Ct. at 2684-85, 57 L.Ed.2d at 682. Allegations of negligence or mistake are insufficient to sustain an assault on the warrant, and only impeachment of the affiant is permitted, not that of a nongovernmental informant. Id. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. Since the constitutionality of the procedure used in obtaining the search warrants is at issue in the case at bar, our review is de novo. State v. Swaim, 412 N.W.2d 568, 570 (Iowa 1987); accord, State v. Luter, 346 N.W.2d 802 (Iowa 1984), cert. denied, 469 U.S. 830, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984); State v. Groff, 323 N.W.2d 204 (Iowa 1982).

Niehaus does not accuse Bolin of being deliberately untruthful in his application for the first warrant. She focuses instead on whether his failure to check Duff's story constituted reckless disregard for the truth. While the State admits the salient facts upon which Niehaus bases her argument, it contends that Bolin's conduct at most constituted only negligence.

We are convinced that the challenged information is material to the determination of probable cause for the search of Niehaus's residence pursuant to the first warrant. Accordingly, we review to determine whether Bolin's conduct constituted reckless disregard under Franks. State v. Weir, 414 N.W.2d 327, 332 (Iowa 1987).

Some cases reviewing factual information backing a search warrant under Franks have concluded that reckless disregard can be proven in two ways. The first of these is by showing directly that the affiant had serious doubts as to the veracity of an informant's statement. See e.g., A Residence Located at 218 3rd Street, 805 F.2d 256, 258 (7th Cir.1986); United States v. Davis, 617 F.2d 677, 694 (D.C.Cir.1979). Niehaus has not produced direct proof that Bolin actually entertained such doubts and does not make that argument here.

The second method by which proof that Bolin recklessly disregarded the truth may be shown requires an inference "from circumstances evincing 'obvious reasons to doubt the veracity' of the allegations." A Residence Located at 218 3rd Street, 805 F.2d at 258 (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985)). Niehaus argues that this approach implies at least a minimal obligation on the part of the speaker to check his or her facts. She contends that determination of whether...