Opinion
No. 4-322 / 03-1336.
September 9, 2004.
Appeal from the Iowa District Court for Calhoun County, Allan L. Goode (trial) and Joel E. Swanson (motion to suppress), Judges.
Defendant asserts that the trial court erred in failing to suppress evidence pursuant to a warrant allegedly defective in form. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich and Thomas E. Noonan, Assistant Attorneys General, for appellee-State.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
We are asked to decide whether a magistrate complied with statutory requirements for the issuance of search warrants. Concluding he did, we affirm.
I. Background Facts and Proceedings
Brooke, a profoundly disabled adult, lived at a care facility in Lake City, Iowa. On the evening of February 9, 2002, Ronald Robert Heim II worked the overnight shift alone. The following morning, day shift workers saw him with blood on his shirt. He stated he ran into Brooke's door while the power was out.
Later the same morning, a staff member who was changing Brooke's disposable undergarment found that it was filled with blood. Health professionals examined her and found a tear from her vagina to her perineum, bruises in her vaginal and anal areas, and bruises to her legs, knees, and ankles. An emergency room nurse performed a sexual abuse examination and released the kit to Officer Bobby Rist of the Lake City Police Department.
Brooke had just completed her menstrual cycle.
Officer Rist applied for a warrant to search Heim's residence. A magistrate notarized the warrant application and signed the warrant. The warrant was executed and certain items were seized, including an item of clothing that was later found to contain DNA of Brooke and Heim.
The State charged Heim with sexual abuse in the third degree and wanton neglect of a resident of a health care facility. Iowa Code §§ 709.4, 726.7 (2001). Heim moved to suppress the seized evidence, contending the magistrate who issued the warrant made no finding of probable cause. The district court denied the motion. Following trial, a jury found Heim guilty on both counts.
Heim filed a motion for new trial, which was overruled. After sentencing, he appealed. On appeal, Heim 1) challenges the district court's denial of his motion to suppress and 2) claims the district court used an obsolete standard in ruling on his motion for new trial. See State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). We resolved the second issue via an order remanding the case for reconsideration of the new trial motion under the newer standard. On remand, the district court used the Ellis standard and again denied the new trial motion. The case is before us now for resolution of the suppression issue.
II. Ruling on Motion to Suppress
Heim contends that statutory requirements were not followed in the issuance of the search warrant for his home, mandating reversal of the suppression ruling. Specifically, he argues A) the warrant application "was not supported by sworn testimony or affidavits" and B) "the magistrate did not complete the endorsement form indicating which statements he was relying on for probable cause." The State responds that only the second issue was preserved for review. We agree with the State, but find review of the first issue is not foreclosed because Heim has also raised his contentions under an ineffective-assistance-of-counsel rubric. See State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004) (stating ineffective assistance of counsel claim fits within exception to general rules on error preservation).
On the first issue, whether the warrant application was sworn, our review is de novo because it is being reviewed as an ineffective assistance of counsel claim. Id. On the second issue, our review is for errors of law. State v. McPhillips, 580 N.W.2d 748, 751 (Iowa 1998).
A. Sworn Testimony.
Iowa Code section 808.3, pertaining to warrants, states in relevant part:
A person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person's oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist.
Officer Rist proffered a warrant application that was signed and sworn. However, an attachment to the application was not. Additionally, witness statements included with the attachment were signed but not notarized. Heim contends trial counsel was ineffective in failing to bring these omissions to the attention of the district court. We disagree.
The search warrant application completed by Officer Rist is in the form required by the Iowa Supreme Court. See Iowa R. Crim. P. 30 (now codified at Iowa R. Crim. P. 2.36, Form 2). This form specifically provides that a search warrant applicant may attach additional information that would be incorporated into the sworn application by reference. By use of this form, Officer Rist's attachments were deemed incorporated into his sworn application.
Even if the content of the warrant application form had not been required by court rule, we are convinced trial counsel did not breach an essential duty by failing to challenge the warrant based on the cited omissions. Dalton, 674 N.W.2d at 119 (on ineffective-assistance-of-counsel claim, requiring proof that counsel failed to perform an essential duty and prejudice resulted). Warrants are to be read in a "commonsense and realistic fashion." State v. Bakker, 262 N.W.2d 538, 545 (Iowa 1978). Officer Rist's signed and sworn warrant application stated, "The facts establishing the foregoing ground(s) for issuance of a search warrant are as set forth in the attachment(s) made part of this application." In light of this statement, Officer Rist's failure to separately sign and have the attachment sworn and to have the witness statements sworn is inconsequential. Id. at 544-45 (typographical error not sufficient to invalidate warrant absent showing that error "materially affected the issuance of the warrant"). See also State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (noting defense counsel does not have a duty to make a meritless or frivolous motion).
We conclude trial counsel did not breach an essential duty in failing to seek suppression of the seized evidence on this ground.
B. Endorsement.
Heim argues that the magistrate failed to complete the endorsement form on the warrant application. The State counters that no endorsement was necessary because the magistrate received no oral testimony.
Iowa Code section 808.3 provides in pertinent part:
If the magistrate issues the search warrant, the magistrate shall endorse on the application the name and address of all persons upon whose sworn testimony the magistrate relied to issue the warrant together with the abstract of each witness' testimony, or the witness' affidavit.
By its terms, section 808.3 requires an endorsement and abstract of testimony only for cases in which "sworn testimony" is provided. Here, there was no sworn testimony before the magistrate. Therefore, there was no need to prepare an abstract of the testimony and no resulting need to endorse the warrant. The district court did not err in rejecting this argument.
AFFIRMED.