State v. Swaim

• Decision Date: 23 September 1987
• Docket Number: No. 86-419,86-419
• Parties: STATE of Iowa, Appellee, v. Toby Lee SWAIM, Appellant.
• Court: Iowa Supreme Court

Page 568

412 N.W.2d 568

STATE of Iowa, Appellee, v. Toby Lee SWAIM, Appellant.

No. 86-419.

Supreme Court of Iowa.

Sept. 23, 1987.

Charles L. Harrington, Appellate Defender, and John P. Messina, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., Denver D. Dillard, Co. Atty., and Mona Knoll, Asst. Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, LARSON, LAVORATO and NEUMAN, JJ.

NEUMAN, Justice.

Defendant Toby Lee Swaim, convicted of the crime of second-degree burglary in violation of Iowa Code sections 713.1 and 713.5 (1985) and sentenced as an habitual offender in accordance with Iowa Code section 902.8, advances two grounds for reversal of his conviction: (1) that the trial court erroneously overruled pretrial motions to suppress evidence seized in warranted searches of a garage, residence and safety deposit box; and (2) that defendant's jail house confession was obtained without a valid waiver of his right to counsel. We affirm on the first ground, reverse on the second and remand for new trial.

I. Background Facts and Proceedings.

On October 9, 1985, a burglary occurred at a Cedar Rapids sporting goods store known as "Sports Outfitters." A large number of handguns, other weapons and ammunition were taken in the burglary.

A police investigation identified defendant as a possible suspect. In late November 1985, police secured three separate warrants to search a garage, residence and safe deposit box used by the defendant. The warrants were based on tips from confidential informants and police surveillance. Each of the searches conducted pursuant to these warrants yielded evidence linking defendant to the Sports Outfitters' burglary. During the residential search defendant was arrested and taken into custody. After several days in custody, defendant confessed to the crime.

Defendant filed timely pretrial motions to suppress the evidence seized as a result of the searches, claiming (1) that the warrants were issued without a proper determination of probable cause as required by Iowa Code section 808.3 (Supp.1985) and the fourth and fourteenth amendments to the United States Constitution; (2) that two of the warrants were based upon the fruits of prior illegal searches; and (3) that certain items seized were not specified in the warrants. Defendant also moved to suppress a confession he gave to investigating officers as having been obtained in violation of his sixth and fourteenth amendment right to the assistance of counsel.

Further facts will be detailed as they become pertinent to defendant's suppression claims, renewed on this appeal.

II. Search Warrants.

Defendant challenges the constitutionality of the procedure used by the State to obtain the search warrants. Our review, therefore, is de novo. State v. Bousman, 387 N.W.2d 605, 609 (Iowa 1986). Our task is to consider the totality of the circumstances surrounding issuance of the challenged warrants. State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). We are guided in this examination by fundamental principles, chronicled here from our opinion in State v. Seiler, 342 N.W.2d 264 (Iowa 1983):

It is axiomatic that search warrants are to issue only upon a finding of "probable cause." "Probable cause" for the issuance of a warrant exists only "when the facts and circumstances presented to the judicial officer are sufficient in themselves to justify the belief of a reasonably cautious person that an offense has been ... committed." State v. Leto, 305 N.W.2d 482, 485 (Iowa 1981); State v. Boer, 224 N.W.2d 217, 219 (Iowa 1974), or "that ... evidence is presently being ... concealed at the place to be searched." State v. Post, 286 N.W.2d 195, 199 (Iowa 1979). Nonetheless, "there is a large difference between" proof of guilt and proof of probable cause, Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 1889 (1949). Although it may be difficult to discern in a particular case whether 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." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965); Leto, 305 N.W.2d at 485.

Id. at 266.

Notwithstanding the substantial deference to be given judicial determination of probable cause, it is the responsibility of a reviewing court to insist that the issuing magistrate's function be performed in a neutral and detached manner, not serving merely as a rubber stamp for the police. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 727 (1964); accord Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 589, 21 L.Ed.2d 637, 643 (1969); Illinois v. Gates, 462 U.S. 213, 240, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527, 549, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). In Illinois v. Gates, however, the Supreme Court abandoned the rigorous application of the two pronged Aguilar-Spinelli test for assessing an informant's credibility and basis of knowledge, and in its place substituted a "totality of the circumstances" test in which:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (citation omitted).

We adopted and applied this Gates standard in State v. Bousman, 387 N.W.2d at 610 and State v. Luter, 346 N.W.2d 802, 808 (Iowa 1984). In Bousman, however, we briefly noted the 1985 amendment to Iowa Code section 808.3, not applicable to that case but fully applicable to the case before us. Bousman, 387 N.W.2d at 611. The statute as amended provides that if the grounds for issuance of a search warrant are supplied by an informant,

the magistrate shall identify only the peace officer to whom the information was given but shall include a determination that the information appears credible either because sworn testimony indicates that the informant has given reliable information on previous occasions or because the informant or the information provided by the informant appears credible for reasons specified by the magistrate.

Iowa Code § 808.3 (Supp.1985). It is upon this statute that defendant rests his case, arguing that the legislation, enacted in response to Gates and Luter, requires more than a totality of the circumstances approach to the determination of probable cause. ¹ The State seems to agree, asserting that the statute as amended serves a two-fold function: (1) it alerts magistrates to the proper factors to be given consideration under the Gates totality of the circumstances test; and (2) it requires that the magistrate expressly include in the warrant endorsement a statement of his or her reasons for finding the informant or the informant's information credible, thereby simplifying this court's review process. Concurring in this analysis, we turn to an examination of the affidavits offered in support of the warrants at issue.

Preliminarily we note that the case involved searches under three separate warrants. The first involved the search of a garage at 4830 First Ave., N.E. in Cedar Rapids which uncovered a number of guns stolen from Sports Outfitters. The second involved the search of a residence at 117 33rd St. Dr., S.E. in Cedar Rapids, which yielded keys matching the garage padlock and a key to a safe deposit box at a local bank. The third warrant, authorizing the search of the safe deposit box, produced more property taken in the Sports Outfitters' burglary. We consider the warrants in turn.

A. Garage.

Cedar Rapids Detective Richard Hamblin drafted the affidavit upon which the police sought to search the garage. Because the affidavit furnishes the basis for all three warrants, each challenged by the defendant as insufficient under Iowa Code section 808.3, we set it out below in its entirety, typed as in the original:

In June of 1985, I received information from a confidential informant (A) that a Toby Swaim had been involved in a burglary of a hardware store near Mechanicsville, Iowa, and that he had taken about 80 guns, in fact, the confidential informant saw one of the guns. After Toby took the guns, which the informant told me would have occurred sometime near the first of May, he rented a garage under a false name in the garage complex just East of Shakey's Pizza located at 4810 1st Ave NE and the guns were stored in the garage.

The confidential informant told me that Toby's partner was another ex-con that lived in the first house behind Pool Tech at 1st Ave and 33rd St Dr SE. I was also told that Swaim and the unknown ex-con had done other burglaries and that they had been using a green van that belonged to the guy living on 33rd St Dr SE. The van could be identified by a large dent in one of the rear doors. I was told further that the person who owned the van had his wife or girlfriend drive for him and Toby while they went out and did their burglaries. I had already been doing surveillance on both Toby Swaim and the residence at 117 33rd St Dr SE. The person in question was a Robert Hutchison and was on parole for habitual offender because of burglaries.

I observed the green van with the dent in the rear door and checked with the parole office and found that Hutchison gave his address as 117 33rd St Dr SE, and that he lived in that residence with a Mary Glade. While doing surveillance, I observed a small blue car in front of the residence;...