State v. Todd

• Decision Date: 17 April 1991
• Docket Number: No. 89-1475,89-1475
• Citation: 468 N.W.2d 462
• Parties: STATE of Iowa, Appellee, v. Greggory TODD, Appellant.
• Court: Iowa Supreme Court

Page 462

468 N.W.2d 462

STATE of Iowa, Appellee, v. Greggory TODD, Appellant.

No. 89-1475.

Supreme Court of Iowa.

April 17, 1991.

William J. Conroy, Jr., Cantrall, Ill., for appellant.

Thomas J. Miller, Atty. Gen., Sarah J. Coats, Asst. Atty. Gen., James Smith, County Atty., and Kathleen Deal and Joseph Weeg, Asst. County Attys., for appellee.

Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, CARTER, and ANDREASEN, JJ.

LARSON, Justice.

Greggory Todd, who was convicted of cockfighting under Iowa Code section 725.11 (1987), challenges the constitutionality of the statute, the search of his property, seizure of cash from people on the premises, and the court's refusal to dismiss the case under the speedy trial provisions of Iowa Rule of Criminal Procedure 27(2)(b). We affirm.

I. The Vagueness and Overbreadth Arguments.

Todd was convicted under Iowa Code section 725.11, which provides:

If any person keep or use, or in any way be connected with, or be interested in the management of, or receive money for the admission of any person to, any place kept or used for the purpose of fighting or baiting any bull, bear, dog, cock, or other creature, or engage in, aid, abet, encourage, or assist in any bull, bear, dog, or cock fight, or a fight between any other creatures, the person shall be guilty of a serious misdemeanor.

(Emphasis added.) He challenges this section on both vagueness and overbreadth grounds under both the United States and Iowa Constitutions. There is, of course, a strong presumption that a challenged statute is constitutional, Knepper v. Monticello State Bank, 450 N.W.2d 833, 838 (Iowa 1990); Sloman v. Board of Pharmacy Examiners, 440 N.W.2d 609, 611 (Iowa 1989); State v. Duncan, 414 N.W.2d 91, 95 (Iowa 1987), and a challenger must demonstrate its unconstitutionality beyond a reasonable doubt. Duncan, 414 N.W.2d at 95; State v. Wagner, 410 N.W.2d 207, 214 (Iowa 1987).

A. The vagueness issue. Vagueness arguments arise from the due process provisions of the fifth and fourteenth amendments to the United States Constitution and article I, section 9 of the Iowa Constitution. The root of the vagueness doctrine is a rough idea of fairness. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972); Sloman, 440 N.W.2d at 611.

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972) (footnotes omitted).

To withstand a constitutional attack, a penal statute must satisfy two standards: (1) it must give a person of ordinary intelligence fair notice of what is prohibited, and (2) it must provide an explicit standard for those who apply it. Duncan, 414 N.W.2d at 96; Wagner, 410 N.W.2d at 214.

Todd argues that the language of section 725.11 prohibiting persons from being "connected with, or ... interested in" such contests is so vague as to be unenforceable. However, one who engages in conduct clearly proscribed by the statute may not successfully challenge it for vagueness. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982); Duncan, 414 N.W.2d at 96. The State argues that Todd falls squarely under this rule. The cockfight took place on his property, and Todd was personally present.

Todd was not charged with violating the first half of section 725.11, "being connected with, or ... interested in the management of" the premises; he was charged with actually "engag[ing] or assist[ing] in a cockfight" under the last half of section 725.11. The issue therefore is whether the latter half of section 725.11, prohibiting active participation in such contests, is unconstitutionally vague. See State v. McKee, 392 N.W.2d 493, 494 (Iowa 1986) (court severed portion of statute challenged for vagueness).

We believe that the language of section 725.11 which makes it a crime to "engage in, aid, abet, encourage, or assist" in any cockfight is sufficiently clear to give a person of ordinary intelligence fair notice of what is prohibited and provide the specific standards required for those who enforce it, Duncan, 414 N.W.2d at 96; Wagner, 410 N.W.2d at 214, and is not unconstitutionally vague under either the United States or Iowa Constitutions.

B. The overbreadth issue. Todd also contends that section 725.11 is overbroad. A statute is overbroad, for constitutional purposes, if it not only forbids conduct constitutionally subject to proscription, but also sweeps within its ambit those actions ordinarily deemed to be constitutionally protected. City of Des Moines v. Lavigne, 257 N.W.2d 485, 487 (Iowa 1977); State v. Farrell, 209 N.W.2d 103, 108 (Iowa 1973). Todd argues that section 725.11 is overbroad because it impedes the right of free association. This argument, like the vagueness argument, is based on Todd's claim that he was prosecuted for merely being present at the cockfight. As already noted, however, he was charged with more; he was charged with "engag[ing] in, or assist[ing]" in the fight.

An overbroad governmental regulation may be invalid on first amendment grounds even when the litigant's activity is not itself constitutionally protected. Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2571-72, 96 L.Ed.2d 500, 507 (1987); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394, 405 (1985).

However, "the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge." Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772, 783 (1984).

The Supreme Court has also stated that, "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830, 842 (1973).

Even if some of the alternative means of violating section 725.11 could be interpreted as restricting mere presence at the event, a matter as to which we have considerable doubt, application of overbreadth principles would result only in partial invalidity of the statute. See Brockett, 472 U.S. at 503-04, 105 S.Ct. at 2802, 86 L.Ed.2d at 406. Here, Todd was charged with more than mere presence at the event. He was charged with active participation, under the "engage in, aid, abet, encourage, or assist" alternative of section 725.11. This is a description of "easily identifiable and proscribable ... conduct," United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796, 817 (1973), which falls within the statute's "plainly legitimate sweep," Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917, 37 L.Ed.2d at 842. We reject Todd's overbreadth argument.

II. The Issuance of the Search Warrant.

Todd challenges the issuance of the search warrant on the ground that it lacked probable cause. Because the challenge is on constitutional grounds, we review the case de novo. State v. Weir, 414 N.W.2d 327, 329 (Iowa 1987).

The test for probable cause is whether a person of reasonable prudence would believe a crime was committed on the premises or that evidence of a crime could be located there. Id. at 330; State v. Sykes, 412 N.W.2d 578, 583 (Iowa 1987); State v. Woodcock, 407 N.W.2d 603, 604 (Iowa 1987). Doubtful or marginal questions are usually resolved by the preference to be accorded warrants. State v. Leto, 305 N.W.2d 482, 485 (Iowa 1981).

The application for this warrant revealed that a confidential informant had told the officers the date, time, and place of the cockfight. To verify this information, the informant made two telephone calls to unidentified persons, and these calls were monitored by the officers. The calls confirmed the date, time, and place as disclosed by the informant. In addition, a supporting affidavit established that the officers' photographs of the location conformed to the description given by the informant.

Todd complains that there was no determination made as to the credibility of the two unnamed individuals who had been called by the informant to confirm the informant's credibility. In other words, he claims that there were two layers of confidential informants, and only the credibility of the upper layer of informant was established by the officers.

The telephone calls to the unidentified persons, however, were made only to allow the officers to test the credibility of the "upper layer" informant, and the substance of those calls was not relied on to obtain the warrant. Under these circumstances it was not necessary for the magistrate to verify the credibility of the lower level informants.

Todd also complains that the court erred in refusing to identify the confidential informant whose information was used in obtaining the search warrant. It is

a general rule that the prosecution cannot ordinarily be required to divulge the identity of an informant as such, as...