State v. Rees

• Citation: 258 Iowa 813,139 N.W.2d 406
• Decision Date: 11 January 1966
• Docket Number: No. 51826,51826
• Parties: STATE of Iowa, Petitioner, v. Warren J. REES, Judge, Respondent.
• Court: United States State Supreme Court of Iowa

Page 406

139 N.W.2d 406

258 Iowa 813

STATE of Iowa, Petitioner, v. Warren J. REES, Judge, Respondent.

No. 51826.

Supreme Court of Iowa.

Jan. 11, 1966.

Rehearing Denied March 8, 1966.

Jack M. Fulton, County Atty., and Thomas J. Wilkinson, Jr., Asst. County Atty., for petitioner.

Robert M. Fassler, and Robert C. Nelson, Cedar Rapids, for respondent.

SNELL, Justice.

This cause comes before us on certiorari to review an order of the trial court sustaining a motion to suppress evidence claimed to have been secured by an unreasonable search and seizure.

The case arose from criminal cause number 20814 entitled State of Iowa v. Joseph W. Grant, Jr. in Linn District Court.

On August 15, 1964 a fire was reported at 324 7th St., SE, in Cedar Rapids. The fire department responded and extinguished the flames at 5:50 a.m. The building involved was being used as a printing plant operated by Citizen's Publications, Inc., lessee. One Joseph W. Grant, Jr., the defendant in the criminal action, had an interest in the business and occupied an apartment on the premises.

Immediately after the fire had been exginguished the fire chief and his employees, a city electrical inspector, a foreman of the light and power company, a deputy state fire marshal, an agent of the Nation Board of Fire Underwriters, and others entered the premises for purpose of investigating the cause and origin of the fire. The investigation was prolonged and the building reentered several times as a part of a continuing investigation. The defendant said no search warrant was ever requested or secured. However, there is no claim of harassment, abuse, subterfuge, force or even objection.

Based in part at least upon the evidence obtained by this extended investigation, the Linn County grand jury returned an indictment charging accused with the crime of arson. He was arraigned and entered a not guilty plea. Prior to trial he filed the subject motion to suppress testimony of grand jury witnesses, Jesse G. Hunter (Chief of Cedar Rapids Fire Department), Kenneth A. Anderson (a fire department captain), James R. Kuta (city electrical inspector), Harry Billings (an employee of Iowa Light and Power Company), and M. D. Huffman (an agent in the Arson Department of the National Board of Fire Underwriters). By his motion accused requested the court to suppress all evidence gained by these persons as a result of their investigation in connection with the fire.

Pursuant to court order there was a hearing on the motion, at which time accused appeared and testified, the State offering no evidence. The indictment, with minutes attached, is made a part of the record for review. The trial court promptly entered order sustaining the motion, the material portion of which provided as follows: '* * * All evidence obtained, and all testimony of witnesses having to do with any search of the premises conducted subsequent to 5:50 a.m. of August 15, 1964, would be, therefore, found to be inadmissible, and such is the Order, Judgment and Ruling of the court upon the motion to suppress.'

The foregoing constitutes substantially the whole record before us.

I. 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.

II. In urging illegal action by the trial court justifying this review, the State contends accused had no standing to challenge the search and seizure.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, officers searched an apartment, seized some narcotics, and arrested Jones, there present, who was merely a friend and permissive guest of the absent occupant. Upon being criminally charged Jones moved to suppress the evidence claiming it was illegally obtained. The court held he was a person within the class entitled to privilege against unreasonable search and seizure, and had standing to challenge any evidence found or seized.

The record now before us discloses accused not only had an interest in the business operated upon the subject property, but also had and occupied an apartment somewhere on the premises. He was clearly a person aggrieved by the search. Furthermore, his indictment subsequent to the search, based in part at least upon the evidence so obtained, gave meaning to his status as a person aggrieved.

III. The statutory authority for investigation into the origin and cause of fires is found in chapter 100, Code of Iowa 1962.

Section 100.1, subparagraph 2, requires an investigation by the state fire marshal.

Section 100.2 provides: 'The chief of the fire department of every city or town in which a fire department is established * * * shall investigate into the cause, origin and circumstances of every fire occurring in such city * * * and determine whether such fire was the result of natural causes, negligence or design. The state fire marshal may assist * * * superintend and direct * * *.'

Section 100.3 requires a report to the state fire marshal.

Section 100.9 provides that when the fire marshal is of the opinion that there is evidence sufficient to charge any person with arson or related offenses he shall cause arrest and prosecution and shall furnish to the county attorney all evidence.

Section 100.10 authorizes the fire marshal and his subordinates to enter any building and examine the same and the contents.

Section 100.12 authorizes entry and examination by the chief of the fire department.

Under these statutes the entry and examination by the officers was legal and mandatory.

What was done here is exactly what is required by the statutes, i. e. investigation, determination of opinion as to cause of the fire, prosecution and furnishing of evidence.

The trial court held that any evidence obtained after the date and time of the extinguishment of the fire would be inadmissible as having been the fruits of an unlawful search and seizure.

Here there was no unlawful search and seizure. What was done was pursuant to statute. We use the word unlawful as meaning without statutory support or in violation of statute. The question is was it unreasonable and violative of constitutional limitations.

Statutes and ordinances authorizing civil inspections have long been acknowledged and sanctioned as incident to the police power of a state or municipality but they must be within constitutional limits. Hubbell v. Higgins, 148 Iowa 36, 46, 126 N.W. 914; State v. Strayer, 230 Iowa 1027, 299 N.W. 912; Town of Grundy Center v. Marion, 231 Iowa 425, 435, 1 N.W.2d 677, and Davis, Brody, Wisniewski v. Barrett, 253 Iowa 1178, 1180, 115 N.W.2d 839.

In Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, it was held that a health officer under the authority of a city ordinance could go on property at reasonable times without the aid of a search warrant for the limited purpose of an inspection to ascertain whether conditions are present which do not meet minimum standards and might be inimical to the health, welfare and safety of the public.

The case recognizes two basic constitutional protections.

'(1) the right to be secure from intrusion into personal privacy, the right to shut the door on officials of the state unless their entry is under proper authority of law. The second, and intimately related protection is self-protection: the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual, information which may be used to effect a further deprivation of life or liberty or property. Thus, evidence of criminal action may not, save in very limited and closely confined situations, be seized without a judicially issued search warrant.'

Mr. Justice Frankfurter traced the history of and necessity for certain inspections and held there was no violation of due process.

A well reasoned opinion clearly in point appears in Dederick v. Smith, 88 N.H. 63, 184 A. 595, a New Hampshire case decided in 1936. Although prior to Mapp v. Ohio, discussed infra, the reasoning is not in conflict therewith.

Plaintiff sought an injunction restraining the state veterinarian 'his aiders, abettors, agents and employees' from trespassing upon the property of plaintiff or from entering or breaking into her premises to test plaintiff's cattle for bovine tuberculosis. The defendant had requested plaintiff's permission to make the tests. Plaintiff had refused. Defendant with assistants forced entrance. Because of plaintiff's objections extra trips for injection of testing materials were necessary. Defendant's testing and actions were pursuant to statute.

Plaintiff claimed (1) defendant was without authority to break and enter plaintiff's barn over her protest or commit any trespass without judicial authorization. (2) Plaintiff was entitled to a prior hearing. (3) Defendant's entry was without due process of law, and (4) the statute authorizing defendant's procedure was unconstitutional. The court said:

'The contention of the plaintiff that the statute does not authorize an entry without the supplementary aid of judicial process in the nature of a search warrant is without merit. On...