State v. Rees ( 1966 )

Rawlings,- J.

I concur in Divisions I and II of the majority opinion, but respectfully disagree with the factual analysis, reasoning and conclusions reached in subsequent divisions.

Ve are here dealing with fundamental constitutional rights of the people and should strive for ways and means .by which to not only comply with, but to promote, those all-important safeguards. . s

We said in Lewis Consol. Sch. Dist. v. Johnston, 256 Iowa 236, 248, 127 N.W.2d 118, 125:

“Perhaps the most efficient form of government is an intelligent and benevolent dictatorship. But, passing the point- that such dictatorships rapidly lose their intelligence and benevolence, we must observe that it is not the kind of government provided for by our constitution. Some check must be put upon administrative bodies; they must be required to follow some sort of pattern designed by the legislature. The law-making body may not entirely abrogate its functions, and surrender them to administrative officials.”

By the same token some cheek must be maintained upon all departments of government. They, as well as administrative officers and agencies, must be required to follow some sort of constitutional pattern. Neither the Constitution of the United States nor of the State of Iowa can be deprived of vitality or meaning by any court, executive or legislative body. No lawmaking body can by legislative process strip from the people their constitutional rights, privileges and immunities, nor arbitrarily delegate them to some administrative or law enforcement officer. To me this basic precept is at the heart of the case now before us.

The majority opinion takes the position that “the present ease is a far cry factually from Mapp.” This may be so, but I respectfully submit the interpretations of the Constitution of the United States of America and the legal principles so clearly declared in Mapp are not only in point but are here most persuasive if not controlling.

For good or for bad Mapp is undoubtedly here to stay and we should accord it full and fair consideration.

At the same time there is no alternative but to recognize the self-evident guidelines, force and mass impact of other recent United States Supreme Court decisions such as follows: Stanford v. Texas, 379 U. S. 476, 85 S. Ct. 506, 13 L. Ed.2d 431; Beck v. Ohio, 379 U. S. 89, 85 S. Ct. 223, 13 L. Ed.2d 142; Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed.2d 977; Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed.2d 908, 1 A. L. R.3d 1205; Murphy v. Waterfront Commission, 378 U. S. 52, 84 S. Ct. 1594, 12 L. Ed.2d 678; Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653; Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L. Ed.2d 246; Fahy v. Connecticut, 375 U. S. 85, 84 S. Ct. 229, 11 L. Ed.2d 171; Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10 L. Ed.2d 513; Douglas v. California, 372 U. S. 353, 83 S. Ct. 814, 9 L. Ed.2d 811; Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed.2d 799, 93 A. L. R.2d 733; Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed.2d 441; Walton v. Arkansas, 371 U. S. 28, 83 S. Ct. 9, 9 L. Ed.2d 9; Spano v. New York, 360 U. S. 315, 79 S. Ct. 1202, 3 L. Ed.2d 1265; Mallory v. United States, 354 U. S. 449, 77 S. Ct. 1356, 1 L. Ed.2d 1479; and McNabb v. United States, 318 U. S. 332, 63 S. Ct. 608, 87 L. Ed. 819.

The factual situation set- forth in the majority opinion is substantially correct, but omits certain important factors. Therefore some repetition of the facts is here unavoidable.

The record in this case is meager, but at the same time, for reasons hereinafter discussed, is probably as complete as defendant could make it.

On August 15, 1964, a fire was reported at 324 Seventh St., S.E., in Cedar Rapids. The fire department responded to a call and extinguished the ñames at 5:50 am. The building involved was being used as a printing plant operated by Citizen’s Publications, Inc., lessee. However, one Joseph W. Grant, Jr., hereinafter referred .to as accused, had an interest in the business and occupied an apartment on the premises, this being his.sole place of residence.

Immediately after the fire had been put out, the fire chief and his associates, a city electrical inspector, a foreman of the light and power company, a deputy state fire marshal, an agent of the National Board of Eire Underwriters, and others entered the premises for purpose of “investigation”, and over a period, of weeks reentered the building several times in pursuit of their inquiry. The defendant said no search warrant was ever requested or secured.

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, entered a not guilty plea, and in due time, prior to trial, 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, because it was obtained by an unconstitutional search. This was not denied by the State.

Pursuant to court order there was a hearing on the motion, at which time accused appeared and testified. Defendant stated his place of residence was on the subject premises; he had mi interest in the business there operated; and no search warrant had ever been served on him. The State offered no evidence. The indictment, with minutes attached, and what is designated a bill of particulars, 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 shall return to this later.

I. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed.2d 1081, 84 A. L. R.2d 933, clearly served to impose a strict constitutional ban upon unreasonable searches and seizures as a protection against invasion of privacy, and for security of property, then implicitly placed an equally strict quai’antine upon the use in all courts, state and federal, of any evidence secured through any constitutionally prohibited intrusions. See also Fahy v. Connecticut, 375 U. S. 85, 84 S. Ct. 229, 11 L. Ed.2d 171, and State v. Hagen, 258 Iowa 196, 137 N.W.2d 895, 899.

■At-this point we encounter Frank v. Maryland, 359 U. S. 360, 79 S. Ct. 804, 3 L. Ed.2d 877. In the cited case, 359 U. S. at 365-367, 79 S. Ct. at 808, 809, 3 L. Ed.2d 881, 882, the court said:

“* * * two protections emerge from the broad constitutional proscription of official invasion. The first of these is 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-protéction: 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.” (Emphasis supplied.)

“But giving the fullest scope to this constitutional right to privacy, its protection cannot be here invoked. The attempted inspection of appellant’s home is merely to determine whether conditions exist which the Baltimore Health Code proscribes. If they do appellant is notified to remedy; the infringing conditions. No evidence for criminal prosecution is sought to be seized. Appellant is simply directed to do what he could have been ordered to do without any inspection, and what he cannot properly resist, namely, act in a manner consistent with the maintenance of minimum community standards of health and well-being, including his own. Appellant’s resistance can only be based, not on admissible self-protection, but on a rarely voiced denial of any official justification for seeking to enter his home. The constitutional ‘liberty’ that is asserted is the absolute right' to refuse consent for an inspection designed and pursued solely for the protection of the community’s health, even when the inspection is conducted with due regard for every convenience of timé and place.”

“* * * Moreover, the inspector has no power to force entry and did not attempt it. - A fine is imposed for resistance, but officials are not authorized to break past the unwilling occupant.

“Thus, not only does the inspection touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment’s 'protection against official intrusion, but it is hedged about with safegua/rds designed to make the least possible demand on the individual occupant, and to cause only the slightest restriction on his claims of privacy-.” (Emphasis supplied.)

The court did not say an officer may enter the premises of another at anytime, on any pretense, or over the refusal of the occupant to permit peaceable entry, without benefit of a warrant to arrest or to search.

The court simply said a health officer, absent objection by an occupant, may enter a building or go upon property at reasonable times, on reasonable cause, without aid of a warrant for the limited purpose of there making an inspection to ascertain whether conditions are present which do1 not meet minimum standards and may be dangerous to' the health, welfare and safety of the public.

Admittedly statutes and ordinances authorizing such civil inspections have long been acknowledged as incident to the police power of a state or municipality, and thus sanctioned.

So, on the one hand we are confronted with a bar to unreasonable searches, and on the other, a qualified right to enter for health, safety and welfare inspections.

II. Without question our General Assembly may enact any legislation deemed proper, provided it is not violative of some provision of our State or Federal. Constitution. Bulova Watch Co. v. Robinson Wholesale Co., 252 Iowa 740, 746, 108 N.W.2d 365. And we must, if possible, so construe the state fire marshal law as to avoid finding it, or any portion of it, unconstitutional. Knorr v. Beardsley, 240 Iowa 828, 840, 38 N.W.2d 236. Also we are required to resolve any doubts in favor of constitutionality of all statutes. Town of Mechanicsville v. State Appeal Board, 253 Iowa 517, 527, 111 N.W.2d 317.

As I see it, our task is to harmonize, if reasonably possible, the provisions of chapter 100 and the privacy rights' of the people guaranteed by Article I, section 8, Constitution of Iowa, and Amendments 4, 5 and 14, Constitution of the United States.

An examination of our state fire marshal law discloses no provision which automatically directs or authorizes searches and seizures. And, in event this law were to be so- construed as to arbitrarily order, direct or permit a criminal investigation in any ease, under any circumstances, or to allow such under the guise of civil inspection, then the law would, to that extent, be unconstitutional. No lamí can so- relax constitutional prohibitions as to permit sea/rches and seizures at the whim and fancy of my individual. Mapp v. Ohio, supra; Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed.2d 441; State v. Smith, Ohio Com. Pl., 202 N.E.2d 215, 222; and People v. Cahan, 44 Cal.2d 434, 282 F.2d 905, 906, 50 A. L. R.2d 513. To hold otherwise would, in effect, serve to so- construe chapter 100 as to authorize a carte blanche general warrant which is clearly prohibited. Stanford v. Texas, 379 U. S. 476, 85 S. Ct. 506, 13 L. Ed.2d 431.

In Johnson v. United States, 333 U. S. 10, 13, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440, a case involving search of premises and arrest without a warrant, that court said: “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. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to’ a nullity am,d leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern tó society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also- a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” (Emphasis supplied.)

As stated in Frank v. Maryland, 359 U. S. at 372, 373, 79 S. Ct. at 812, 3 L. Ed.2d at 886: “If a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue.”

However, if we, in effect, read relevant constitutional provisions into onr state fire marshal law, then to that extent the law would be constitutional. Appleby v. Farmers State Bank of' Dows, 244 Iowa 288, 56 N.W.2d 917, and 16 Am. Jur.2d, Constitutional Law, sections 144-151, pages 345-359.

III. . The matter of civil inspections, and criminal investigations should next be considered.

In its legal sense, a search and seizure is made and effected by entry of an officer into or upon the premises or property of another person and who there, by some force, actual or constructive, seeks out, reaches for, pries into or explores for, and thus physically or mentally obtains, takes, retains and holds the thing or condition so discovered, all with the intent and for the purpose of using such- thing or condition in the criminal prosecution of some person or persons. It is a seeking out, a quest for incriminatory evidence. It may well be classified as accusatory in nature. It is an invasion of privacy. If effected with legal right, it is reasonable and lawful, but if done without such right, it is unreasonable and unlawful. Mapp v. Ohio, supra; People v. McCracken, 30 Ill.2d 425, 197 N.E.2d 35, 37 ; State v. Morris, 243 S. C. 225, 133, S.E.2d 744, 748; Smith v. State, 41 Ala. App. 528, 138 So.2d 474, 476; Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal. Rptr. 552, 371 P.2d 288, 289; Commonwealth v. Calvarese, 199 Pa. Super. 319, 185 A.2d 657, 659; State v. Reagan, Mo., 328 S.W.2d 26, 28; and McDonald v. United States, 83 App. D. C. 96, 166 F.2d 957, 958.

On the other hand, a civil inspection as the term is here employed is made and effected by entry of a qualified public official into or upon the premises or property of another person for the limited purpose of -there making or effecting- an observation only of something there present or some condition which may there exist, which may be inimical to the health, safety and welfare of the community, to the end that some appropriate action or sanction may be had or exercised in order to effect a cure, correction of alleviation of any such condition there found to exist. Unlike searches, it is investigatory in nature. Frank v. Maryland, supra; Fagundes v. United States, 1 Cir., 340 F.2d 673; United States v. Barone, 2 Cir., 330 F.2d 543; United States v. Lee, 4 Cir., 308 F.2d 715, 717; People v. Elmore, 28 Ill.2d 263, 192 N.E.2d 219, 220; People v. Manzi, 38 Misc.2d 114, 237 N. Y. S.2d 738, 741; United States v. Scott, 149 F. Supp. 837, 841; and State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692.

IV. Clearly and unmistakably, Mapp said there is a constitutional ban upon unreasonable searches and seizures. It would therefore appear that since a good faith lawful civii inspection, so limited, does not stand in the shoes of an unreasonable search and seizure, an officer lawfully upon the premises or property of another, for such purpose, who there sees, observes or becomes aware of self-evident things or conditions, is not prohibited from thereafter' giving testimony in a criminal prosecution as to such things.or conditions. United States v. Barone; Fagundes v. United States; People v. Manzi; and United States v. Scott, all supra; and United States v. Williams, 6 Cir., 314 F.2d 795, 798.

By the same token, an officer lawfully engaged in fighting a fire, or a duly authorized! public official legitimately conducting a good faith post-fire civil inspection upon the premises of another person, should be permitted to employ evidence of self-evident things or conditions in support of an application for a search warrant, and testify as to same in either civil or criminal proceedings.

Briefly stated, it is not a search to merely see, smell, hear, touch or taste that which is plain, obvious, visible, patent or apparent -to the senses. United States v. Williams, supra, and Mardis v. Superior Court, 218 Cal. App.2d 70, 32 Cal. Rptr. 263, 267. But see Taylor v. United States, 286 U. S. 1, 52 S. Ct. 466, 76 L. Ed. 951, and People v. Hurst, 9 Cir., 325 F.2d 891.

V. The crucial question presented is whether a person authorised by law to go upon the premises of another to conduct a civil inspection or investigation may at anytime, or on any occasion there undertake a search and seizure.

In effect the majorify opinion holds that when peace officers, administrative agents or others-are in a place where they have a laivful right to be for conduct of a civil investigation they are, by the same token in a place where they have a lawful right to be for a search and seizure. This cannot be.

Despite the contrary view expressed in the majority opinion, I, for one, find it impossible to believe an official acting under authority of chapter 100, having gained entrance to the premises or property of another for the purpose of then and there fighting a fire, or effecting a good faith post-fire civil or administrative investigation, can ipso facto convert such fire fighting efforts, or any such investigation into a constitutionally proper search and seizure. Surely an officer so entering or being upon the premises of another person must ordinarily obtain proper consent or valid warrant prior to any search of the premises or possessions of another for the purpose of obtaining evidence incriminatory or accusatory in nature, and particularly so where a dwelling place is involved. United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 744, 13 L. Ed.2d 684; Stoner v. California, 376 U. S. 483, 84 S. Ct. 889, 11 L. Ed.2d 856; Jones v. United States, 362 U. S. 257, 270, 80 S. Ct. 725, 736, 4 L. Ed.2d 697, 78 A. L. R.2d 233; United States v. Jeffers, 342 U. S. 48, 72 S. Ct. 93, 96 L. Ed. 59; Agnello v. United States, 269 U. S. 20, 32, 46 S. Ct. 4, 6, 70 L. Ed. 145; Boyd v. United States, 116 U. S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746; Mardis v. Superior Court, 218 Cal. App.2d 70, 32 Cal. Rptr. 263, 267; and 47 Am. Jur., Searches and Seizures, section 16, page 512. See also 33 Iowa Law Review 472; 13 Drake Law Review 65; and 36 Colorado Law Review 395.

YI. By this I do not mean consent or a warrant is always a prerequisite to a lawful search. The test is reasonableness as to place, time and area, which must be resolved according to the facts and circumstances of each case. Mapp v. Ohio, supra; United States v. Rabinowitz, 339 U. S. 56, 63, 70 S. Ct. 430, 434, 94 L. Ed. 653; Ker v. California, 374 U. S. 23, 33, 83 S. Ct. 1623, 1629, 10 L. Ed.2d 726; and State v. Hagen, 258 Iowa 196, 137 N.W.2d 895, 899. And, fine lines of distinction must usually be drawn requiring a full exploration of the factual situation in each case.

' Assuming then that an officer conducting a lawfully proper investigation under chapter 100 is in a place where he has a legal right to be, it would to me logically follow that if while there one or more of his five senses discloses to him reasonably probable cause to believe a crime has been or is being there committed, he may conceivably proceed with a reasonably limited lawful search and seizure without first securing consent or warrant to search. United States v. Rabinowitz, supra; Jones v. United States, 362 U. S. at 269, 270, 80 S. Ct. at 735; United States v. Jeffers, 342 U. S. at 53, 72 S. Ct. at 96; Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399; Murray v. United States, 10 Cir., 351 F.2d 330, 333, 334; Chapman v. United States, 9 Cir., 346 F.2d 383, 387; People v. Varnadoe, 54 Ill. App.2d 443, 203 N.E.2d 781, 783, 784; and Moreland on Modern Criminal Procedure, page 113.

With reference to probable cause, Brinegar v. United States, 338 U. S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890, says:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These’ are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

“ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ * * * Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has or is being committed.”

However, exploratory, repetitive or delayed searches, with or without consent or warrant, have generally been held to be unreasonable. Preston v. United States, 376 U. S. 364, 367, 84 S. Ct. 881, 883, 11 L. Ed.2d 777; United States v. Rabinowitz, 339 U. S. at 61-63, 70 S. Ct. at 433, 434; Kremen v. United States, 353 U. S. 346, 77 S. Ct. 828, 1 L. Ed.2d 876; United States v. Lefkowitz, 285 U. S. 452, 52 S. Ct. 420, 76 L. Ed. 877, 82 A. L. R. 775; McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732, 739; and State v. Buxton, 238 Ind. 93, 148 N.E.2d 547.

VII. It seems to me to be now well settled that where a motion to suppress evidence is filed, the burden in the first instance is upon an accused to establish his standing as a person aggrieved by a challenged search, insufficiency of the affidavit for the warrant, or that a search was effected without lawful authority. Wilson v. United States, 10 Cir., 218 F.2d 754, 757, and Williams v. State, Okla. Cr., 291 P.2d 383. This done the burden is clearly upon the State' to show what, if any, civil inspection had been made, the basis or foundation for it, the extent of such investigation, and if a search was in fact made to show proper authority, cause or reasonableness. United States v. Hilbrich, 7 Cir., 341 F.2d 555, 559; People v. Allen, 257 N. Y. S.2d 757, 760, 45 Misc.2d 739; and Badillo v. Superior Court, 46 Cal. 2d 269, 294 P.2d 23, 25.

And reasonableness of any search is always for the court to determine. United States v. Rabinowitz, 339 U. S. at 63, 70 S. Ct. at 434, and Ker v. California, 374 U. S. at 33, 83 S. Ct. at 1630.

VIII. But in the ease now before us the showing made may not have been, arguendo1, sufficient to permit a fair appraisal and determination of the matter of reasonableness.

Admittedly nothing is shown as to extent of the fire, damage to the structure, its condition after the fire, or whether defendant was or was not-present at any material time or times. There is no showing made as to whether the chief of the fire department, and others concerned, conducted a civil investigation and if so their cause or reason, time devoted, and area inspected; and if such’investigation was undertaken whether it developed into a search and seizure, and if so why and when, the area searched, and time devoted to it; and whether defendant’s living quarters were inspected or searched. Also no showing is made as to the authority of the five challenged witnesses, or any of them, to investigate or search.- These elements may or may not be essential to a fair determination of defendant’s motion, but they are elements which should be disclosed by the State, if disclosed at all.

IX. The basic thrust of the majority opinion is that defendant failed to sustain his burden of proof ■ that the meagerness of the record is defendant’s fault; that defendant failed to produce all evidence necessary to support his claim or to make his case; and that this is fatal to his motion to suppress. •

Actually it would appear defendant produced all evidence within his limited command. This being a criminal case pretrial discovery was of questionable value to him.

This then means defendant’s only real source of information with which to act in support of his motion to suppress was a motion for bill of particulars. But he used this method of approach and was simply told an “investigation” had been repeatedly conducted on the subject premises over a period of about five or six weeks.

The result is, defendant found himself on the horns of a dilemma, but the majority says he did not prove enough,

I cannot agree. Defendant proved he was a person aggrieved; that in truth and in fact four or five people, some with no apparent right or authority, had participated in what can only be classified as repetitive on-the-spot searches,' all done without evident authority. This the State neither refuted nor explained.

I am satisfied defendant made his case, that the burden was then upon the State, and the State failed to meet its burden. Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23. Upon this premise the writ of certiorari should be annulled.

However, it is my belief that both the State and defendant should, as a matter of fairness, be permitted to present such additional testimony and make such further record as is possible and proper.

I believe manifest justice dictates this case be remanded.

Larson, Thornton and Becker, JJ., join in this dissent.