State v. Paschal

• Decision Date: 14 January 1981
• Docket Number: No. 63102,63102
• Parties: STATE of Iowa, Appellee, v. Edward H. PASCHAL, Jr., Appellant. STATE of Iowa, Appellee, v. Charles Bernard BOEHMLER, Appellant.
• Court: Iowa Supreme Court

Page 115

300 N.W.2d 115

STATE of Iowa, Appellee, v. Edward H. PASCHAL, Jr., Appellant.

STATE of Iowa, Appellee, v. Charles Bernard BOEHMLER, Appellant.

No. 63102.

Supreme Court of Iowa.

Jan. 14, 1981.

John M. Maher of Chipokas, Platt, Maher & Forte, Cedar Rapids, for appellants.

Thomas J. Miller, Atty. Gen., Douglas F. Staskal, Asst. Atty. Gen., and Susan L. Weller, Asst. Linn County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, ALLBEE and LARSON, JJ.

LARSON, Justice.

In this consolidated appeal, Edward H. Paschal, Jr. and Charles Bernard Boehmler challenge their convictions of the crime of possession with intent to deliver a controlled substance in violation of section 204.401(1), The Code 1977. Evidence seized under a warrant, they contend, should have been suppressed because the warrant was obtained in violation of the Fourth Amendment to the United States Constitution and section 808.3, The Code 1977. The district court refused to suppress the evidence. We affirm.

Our search warrant procedure is set out in section 808.3, The Code:

Any person may make application for the issuance of a search warrant by submitting before any magistrate a written application, supported by the person's oath or affirmation, and setting forth therein facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that such grounds exist.... If the magistrate thereafter issues the search warrant, the magistrate shall endorse on the application the name and address of all persons upon whose sworn testimony the magistrate relied to issue such warrant together with the abstract of each witness' testimony, or his or her affidavit. However, if the grounds for issuance are supplied by an informant, the magistrate shall identify only the peace officer to whom the information was given. The magistrate may in his or her discretion require that any witness upon whom the applicant relies for information appear personally and be examined concerning such information.

The facts of the case, as they bear on the motion to suppress, are not contested. In the early morning hours of October 13, 1978, district associate Judge John J. Siebenmann was presented with an application for a warrant to search appellant Paschal's apartment in Cedar Rapids. Issuance of the warrant was based upon the sworn affidavit of David H. Knott, a police officer, and his oral testimony. The specific problem in this case arises because, despite the requirement of the statute that the magistrate abstract the evidence relied upon in the issuance of the warrant, the evidence set out in the abstract failed to include all of the facts necessary to establish the reliability of the unidentified informant as required by Aguilar v. Texas, 378 U.S. 108, 113-14, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723, 728-29 (1964). The magistrate did, however, refer to a tape recording in his abstract which supplied the necessary evidence. The abstract stated:

I, John F. Siebenmann, hereby certify that in issuing the search warrant in this matter, I relied upon the foregoing sworn testimony of the foregoing applicant(s). In addition, I relied upon the sworn testimony of the persons whose names, addresses, and an abstract of their sworn testimony appears below.

Deputy Knott gave further testimony relating to identity of the house in the application, his survey once within the past 72 hours of same, the reliability of informant by checking through another officer, and that Detective Knott personally corroborated the information obtained from other sources; testimony of officer was tape recorded and same was preserved.

(Emphasis added.)

The appellants contend the warrant was improperly issued because (1) neither the affidavit of the officer nor the issuing judge's abstract set forth facts establishing the reliability of the confidential informant, and the tape-recorded oral testimony of the officer could not be considered; and (2) even if the taped testimony of the requesting officer were properly considered, the information presented to the issuing judge failed to establish probable cause for the search.

I. Use of the tape-recorded testimony. The district court acknowledged in its order overruling the motion to suppress that neither the sworn information nor the judge's abstract of testimony contained facts as to the time of the informant's observations and facts showing his reliability. Officer Knott's tape-recorded testimony before the issuing judge did, however, supply the missing elements, according to the district court's ruling. On appeal, the appellants urge that under section 808.3 and State v. Liesche, 228 N.W.2d 44, 48 (1975), such evidence, being outside the four corners of the sworn application and the issuing judge's abstract, could not be considered in determining probable cause. We note that under section 808.3, probable cause must be based upon "sworn testimony" either in the form of affidavit or oral testimony, or a combination of them. However, it does not address the specific issue of whether recorded testimony before the magistrate may be used to supplement the supporting affidavits or the magistrate's abstract; the appellants contend that, based upon Liesche, 228 N.W.2d at 46-49, it may not.

In Liesche, the magistrate had taken oral testimony but failed to follow the statutory mandate to endorse the witness' name and address on the search-warrant application and failed to provide an abstract of his sworn testimony. § 751.4, The Code 1973 (now found in substance as section 808.3). Citing the earlier cases of State v. Spier, 173 N.W.2d 854, 862 (Iowa 1970), and State v. Boyd, 224 N.W.2d 609, 616 (Iowa 1974), we concluded that the endorsement of the names and addresses, and the abstract of testimony, were intended by the legislature to be mandatory. We stated 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," Lische, 228 N.W.2d at 47, and that its rationale was to (1) assure accurate, meaningful review of the probable cause showing, and (2) provide notice to a defendant on the facts recited against him for purposes of attacking their veracity. Id. at 47-48.

In Liesche, the justice of the peace "failed utterly to comply with the mandatory endorsement requirement," id. at 47; there were no witness affidavits or magistrate's abstract to provide a basis for a meaningful review and notice to the defendant. The State sought to legitimize the issuance of the warrant by presenting evidence at a subsequent suppression hearing as to what had been presented to the justice of the peace at the time the warrant was issued. However, this procedure denied the defendant a timely and adequate notice of the facts relied upon, and denied the reviewing court a meaningful basis upon which to evaluate the probable cause showing. Testimony of the issuing justice of the peace, five months after issuance of the warrant, did not satisfy the requirements of the statute; we held that contemporaneous preservation of the evidence, in the form of affidavit or the magistrate's abstract of testimony, is required. See id. at 48.

Relying upon Liesche, the appellants argue that regardless of the accuracy or contemporaneity of the preserved evidence, it cannot be considered if not actually set out in the affidavits or magistrate's abstract. This is so, they argue, even if the tape recording established the basis for issuance of the warrant, and the reference to it in the magistrate's abstract gave at least some advance notice of its existence. We believe, however, that this is too narrow a view of Liesche and of section 808.3.

Liesche must be distinguished on its facts: in that case no contemporaneous record was made in any form; the post-issuance attempt to rehabilitate the record failed to provide either a meaningful basis for review or notice to the defendant. In contrast, the recorded testimony in the present case clearly satisfied the requirements of contemporaneity and accuracy. ¹ Moreover, the reference in the magistrate's abstract to the tape was sufficient, albeit minimal, notice to the appellants of the existence of supporting evidence; while the tape itself, which was accessible to the appellants, provided the details of the testimony.

We recognize that a practical view of search-warrant procedures has been advocated:

(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965). While Ventresca involved sufficiency of supporting affidavits rather than of an abstract of testimony, it suggested a generally broad view toward probable cause determinations:

Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

Id. at 109, 85 S.Ct. at 746, 13 L.Ed.2d at 689. One court has suggested that the same pragmatic view of probable-cause determinations should apply to the search-warrant rule itself. United States v. Mendel, 578...