State v. Spier
Decision Date | 13 January 1970 |
Docket Number | No. 53464,53464 |
Citation | 173 N.W.2d 854 |
Parties | STATE of Iowa, Appellee, v. Gary Lee SPIER, Appellant. |
Court | Iowa Supreme Court |
Nicholas V. Critelli, Jr., of Comito, Critelli, McNally & Roehrick, Des Moines, for appellant.
Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.
Charged with possession of narcotics the defendant, prior to trial, moved to suppress evidence found in his automobile and seized pursuant to a search warrant.
In course of trial defendant made timely and repeated objections to introduction in evidence of material so obtained. This motion and these objections were on each occasion overruled. Trial jury returned a guilty verdict and defendant was thereupon sentenced. His motions for a new trial and in arrest of judgment were likewise overruled. He appeals. We reverse.
The sole issue here presented is whether trial court erred in overruling defendant's motion to suppress, an objections to evidence, predicated on absence of probable cause for issuance of the search warrant.
Ausust 9, 1968, the warrant here involved was issued by Justice of the Peace Alvin Hoard, upon application made by State Narcotics Agent B. L. McGill.
The verified affidavit by McGill, in support of his application, state: (Emphasis supplied).
August 12, 1968, defendant's car was located and searched. Resultantly some marijuana, cigarette papers and a small pipe was found and seized.
By motion to suppress the fruits of this search, defendant asserted issuance of the challenged warrant violated his rights under Amendment 14, United States Constitution, and Article I, Constitution of Iowa, as did any evidentiary use of the items seized in that no good or sufficient probable cause was shown upon which the warrant could lawfully issue.
On course of trial defendant repeatedly objected to introduction or use in evidence of the seized material upon the additional ground, issuance of the warrant, absent probable cause, contravened his rights under Amendment 4, United States Constitution.
At hearing upon the suppress motion officer McGill, as a witness for the State, on direct examination, was questioned and gave these answers:
A. From a reliable informant.
Then on cross-examination McGill gave these responses to the questions asked of him:
Mr. Hoard, testifying in chief for the State in the same proceedings, supplied these answers when interrogated:
And this is Hoard's testimony on cross-examination:
Upon this record we must now determine whether Justice of the Peace Hoard, acting as a neutral and detached magistrate, had constitutionally adequate 'probable cause' to issue the search warrant here in question.
I. Federal constitutional search and seizure standards are unquestionably applicable to the states.
This was made abundantly clear in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. In that case the court said, loc. cit., 367 U.S. 655, 81 S.Ct. 1691: 'We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
'Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then * * * the assurance against unreasonable federal searches and seizures would be 'a form of words', valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom 'implicit in 'the concept of ordered liberty."'
So we must look to fundamental precepts in order to evaluate the always troublesome and recurring problem of probable cause for issuance of a search warrant.
II. On this review it is not for us to evaluate contradictory factual questions. It is essential, however, we make an independent examination of the facts, findings, and record in order to determine whether relevant constitutional standards have here been fully respected. See Ker v. State of California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726.
III. It is now well settled: '* * * the informed and deliberate determinations of magistrates empowered to issue warrants * * * are to be preferred over the hurried action of officers and others who may happen to make arrests.' United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877.
To like effect is this statement in Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 369, 92 L.Ed. 436:
At the same time we should be mindful of the fact that affidavits for search warrants must be tested and interpreted by magistrates and courts in a common sense and realistic fashion lest police officers, who frequently draft them, be discouraged 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.
Balanced against these cautions is the holding in Aguilar v. State of Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, that reviewing courts, though according substantial deference to a magistrate's determination of probable cause, have no choice but to insist that he perform his duty as a neutral and detached official--not serve merely as a rubber stamp for complaining police officers.
And of more than minimal significance is this footnote 1 comment in Aguilar, supra, loc. cit., 378 U.S. 109, 84 S.Ct. 1511: 'It is elementary that in passing on the validity of a warrant, the reviewing court may consider Only information brought to the magistrate's attention.'
IV. Another basic concept here involved, as stated by this court in State v. Hagen, 258 Iowa 196, 205, 137 N.W.2d 895, is that: ...
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