State v. Spier

• Decision Date: 13 January 1970
• Docket Number: No. 53464,53464
• Citation: State v. Spier, 173 N.W.2d 854 (Iowa 1970)
• Parties: STATE of Iowa, Appellee, v. Gary Lee SPIER, Appellant.
• Court: Iowa Supreme Court

Page 854

173 N.W.2d 854

STATE of Iowa, Appellee, v.Gary Lee SPIER, Appellant.

No. 53464.

Supreme Court of Iowa.

Jan. 13, 1970.

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.

RAWLINGS, Justice.

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: 'R.L. (sic) McGill of said County, being duly sworn, says that certain personal property of narcotics in a motor vehicle, towit: belonging to Gary Spiers(sic), LicenseNo. 77-- 112522 a 1967 Chev. of the value of motor vehicles a red 1967 Chev. in the Township of Des Moines in said County, on the 9th day of August, 1968, And that this deponent suspects and verily believes and has cause to suspect and believe that one Gary Spiers(sic) has taken and stolen the same as aforesaid and that said property, or a part thereof, is now concealed in a red 1967 Chev., Lic. No. 77--112522situated in Des Moines Township, in said County.'(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, andArticle 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: 'Q.Describe to the Court what conversation took place between you and Al Hoard there?A.I advised Mr. Hoard that I had received information from Agent McCloskey that there was narcotics in the possession of Gary Lee Spier.

'Q.Do you recall whether or not you advised him what you based this upon?A.Yes.On information received from Agent McCloskey.

'Q.Do you know what that information was, that McCloskey had?A.Yes.That Gary Spier had narcotics in his possession.

'Q.Do you know where that information came from' A.From a reliable informant.

'Q.Do you know who that reliable informant was?A.No, Sir.

'Q.Do you recall whether or not you advised Judge Hoard of this?A.No, I just advised Judge Hoard I had reliable information that narcotics were in the possession of Gary Spier.'

Then on cross-examination McGill gave these responses to the questions asked of him: 'Q.Agent McGill, at the time you went to secure this Search Warrant, did you inform Justice of the Peace, Al Hoard, of the nature of your information?A.I believe All that I advised Mr. Hoard was that I had information from a reliable source that narcotics were in the possession of Mr. Spier.(Emphasis supplied).

'Q.Did you state to him who this reliable source was?A.No, Sir.

'Q.Do you know who the informant was?A.No, Sir, I do not.

'Q.So at the time you did not know where the information came from?A.My information came from Agent McCloskey.

'Q.And you did not know where his information came from?A.No, Sir.'

Mr. Hoard, testifying in chief for the State in the same proceedings, supplied these answers when interrogated: 'Q.When Officer McGill appeared before you, what, if anything, transpired with respect to the issuance of this Search Warrant?A.I asked him what he was searching for, he said he was searching for narcotics.

'Q.Did he tell you the name of the individual?A.Yes.

'Q.What else did he tell you?A.That's all.

'Q.And based upon this, you issued a Search Warrant?A.I did.The Return of the Search Warrant is on the back.

'Q.So, in other words, the information you took from him that date, was just what he was searching for?A.On the Affidavit, yes.

'Q.And no other conversation of any consequence?A.No other conversation.'

And this is Hoard's testimony on cross-examination: 'Q.Now, this Affidavit, what was in that Affidavit?Do you remember?A.To search for narcotics.

'Q.And do you recall what grounds it was based upon, was there any conversation as to the reason for its issuance?A.There was reason to believe there was narcotics there.

'Q.He just said there was reason to believe?A.No, he said there was narcotics.

'Q.What was he basing his opinion on, do you know?A.I couldn't tell you that.

'Q.Do you recall whether or not he advised you, as to a reliable informant?A.No.

'Q.Did you find there was probable cause and reason to issue a Search Warrant?A.After he told me what he was searching for, I did, narcotics.

'Q.Did you have any other conversation with McGill?A.No.'

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 casethe 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.SeeKer 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: 'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'

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: 'A search is good or bad when it starts and does not change character from its success....