*1 comply difficult Pattison with BOUSMAN, Plaintiff, Keith
subpoena. Notwithstanding, it appropriate willingness county to consider the of the IOWA DISTRICT COURT FOR
attorney to assist the of the sub COUNTY, CLINTON with poena subpoena complying Defendant. determining when particularity of description of the document sought. No. 99-1548. Tecum, re Subpoenas Duces (D.Va.1999) (United F.Supp.2d Supreme Court Iowa. Attorney a compromise States “offered for production July schedule of the requested documents”); 4.13(e), LaFave also (ordering investigative
at 749 to in body subpoenaed
spect documents on own of compliance).
would minimize burden hearing on the
Based the motion to case, subpoena in this clear county with attorney desires to work requested
Pattison docu locating willing provide
ments assistance searching through records. More
over, it appears description contained subpoena could modified to ac
commodate record keeping prac Pattison’s if it accept county
tices chose not to
attorney’s Additionally, ap assistance. isit agreements
parent other could be
fashioned. See Dir. Office Thrift Ernst
Supervision Young, & (D.D.C.1992).
F.Supp.
IV. Conclusion.
Considering willingness of the coun- attorney
ty to assist Pattison in complying subpoena, conclude sub-
poena sufficiently objects described the produced and the district acted court
properly denying the motion to vacate. annul the writ certiorari and affirm decision the district court.
WRIT ANNULLED. *3 Office, Proceedings. Background Law I. Facts Clin- Wolfe
John J. Wolfe ton, plaintiff. 31, 1999, Emily noti- March Shaver On Miller, General, Attorney Thomas J. car been police that her had fied Clinton Tauber, Attorney Assistant Thomas S. had burglarized. Someone broken Wolf, Attor- General, County E. Michael side window and removed sever- passenger Strausser, County ney, Gary Assistant investigation items the car. The al from for defendant. Attorney, checks, two moved revealed that blank position, stained from their normal were TERNUS, Justice. with blood. *4 an appeal, Keith Bousman filed 27, 1999, attor- August county On certiorari, writ of petition a for we treat as ney’s applied a office for nontestimonial denying court decision his from a district to Bous- identification order directed Keith a court order direct- quash prior motion to (Iowa’s man. Iowa ch. 810 See Code iden- a nontestimonial ing him to submit to statute). identification nontestimonial Bousman claims that procedure. tification county attorney re- application, identi- order for nontestimonial court’s to that the court order Bousman quested protec- his constitutional fication violated swabbing a of his mouth for a submit to searches and against tion unreasonable purposes to be of sample saliva used contravention seizures and issued analysis investigation. DNA to aid in the statute, Iowa authorizing Code attorney appli- county supported The this (1999). prelimi- The contends State affidavit, in- signed by cation an an right appeal' has no this narily Bousman vestigating officer. 814.6(1) section order under discretionary review under section county granted The district court 814.6(2) inappropriate. The State also attorney’s issued an order application and for nontestimonial that the order asserts directing appear Bousman the Clin- not violate constitutional identification did police department ton to have “oral swabs chapter 810. provisions or taken from the mouth.” Bousman filed a of the record Upon our consideration alleging motion that the reasons quash, con- parties, we arguments and the requiring stated for him to submit to the present appeal should be clude that procedure “inadequate” were and violated petition a for writ of certiorari. treated as right against his unreasonable searches an cer- Considering appeal original as denied and seizures. district court action, pro- grant tiorari we writ motion, finding appli- Bousman’s the merits of ceed to the merits. On grounds to cation established reasonable claim, Bousman’s hold that the court’s suspect Bousman “committed or aided and order nontestimonial identification was felony.” abetted the commission a by supported “reasonable appealed. Bousman suspect” committed a felo- that Bousman ny, Iowa required by Code II. Have a Right Does Bousman Amendment. and the Fourth Appeal the District From Court’s
Therefore,
writ
certiorari
we sustain the
Denying
Order
His Motion to
entry
quashing
and remand for
Quash?
requiring
Bous-
district court’s order
man
identifi-
The initial issue before this court
to submit
a nontestimonial
right
appeal
a
cation
whether Bousman had
procedure.
hand,
ruling
the district court’s
on his motion to
On
other
proceeding
quash
the order
nontestimonial identifi-
for issuance
aof nontestimonial identifica
cation. The
contends that the non-
tion
clearly
order is
not civil so as to
quasi-
testimonial
identification order is
trigger
allowing
the rules
appeal
final
and, therefore,
criminal
nature
the law judgments or decisions in civil cases. See
criminal
It
governing
appeals applies.
as- generally
R.App.
P. 1 (providing for
attempted appeal
serts
cases).
appeals in
Proceedings
civil
ruling
from the court’s
on the motion to
chapter 810 can be
only by
initiated
appeal
is not a
criminal
permitted
as person who has been arrested for or
right
authorized
Iowa Code section charged
offense,
with a criminal
see Iowa
814.6(1).
addition,
argues,
The State
or,
810.2,
case,
§
Code
as in
discretionary
review
should
prosecuting attorney during the investiga
814.6(2)(e) (al-
§
granted. See Iowa Code
offense,
tion of a
criminal
id.
810.3.
lowing discretionary
“[a]n
review of
agree
with the State that such pro
raising
question
of law important to the
ceedings
criminal,
quasi-criminal,
if not
judiciary
profession”).
and the
(stat
in nature.
generally
id.
801.1
*5
Iowa Code
814.6 grants
“the de-
ing that
810
chapter
part
of code of
right
appeal
fendant” a
of
from certain
criminal procedure); 1981 Iowa
ch.
Acts
specified judgments
opportunity
and the
(described
§§ 2-15
as a bill “concern
discretionary
for
review
designat-
of other
procedures”
certain
(empha
criminal
Chapter
part
ed orders.
814
of
(codified
added))
sis
at
procedure
criminal
code.
Iowa
See
Code
(1983)).
§§
Therefore,
810.3-.16
the rules
§ 801.1
(“Chapters
to 819 shall be
governing appeals
civil cases do not
known and
bemay
cited as the ‘Iowa Code
apply.
”). Therefore,
Criminal Procedure.’
“defendant,”
term
as used in the context of
that
The fact
this case does not fall
refers
the “accused” in a
within the
for civil
or
rules
cases
the stat
criminal case. Black’s
Dictionary
Law
ute giving criminal
oppor
defendants the
(7th ed.1999).
Although
possible
it is
tunity for appellate review does not mean
a
for
“defendant” to be the
of a
remedy.
Bousman is without a
In
order,1
nontestimonial identification
Bous-
City
v. McCartney,
Janesville
man does not fall within that class of per-
(Iowa 1982),
N.W.2d 785
we allowed re
sons. Bousman has not
accused
been
of or
view of
a district court ruling
certiorari
charged
any
crime. See Webster’s
provided
where neither rule nor statute
Third
Dictionary
Neiv International
any
McCartney,
other manner of review.
ed.1993)
(unabr.
(defining “accused” as
writ and er- review that court “consider defects appellate entitled would he is whether tri- proceedings inferior rors this basis. strictly jurisdictional bunal court has “constitu supreme The omitted)). (citation in nature” to, exer powers to issue writs tional control supervisory and administrative cise argues that we should over, judicial other tribunals.” State discretion to review not exercise our 1992). (Iowa Davis, 493 N.W.2d at hand at issue case because contem procedure appellate rules of Our initially interlocutory, not final. noteWe original proceedings certiorari plate regardless certiorari “is available filing for the by providing level appellate finality judgment.” McKeever writ of “petition in our court of (Iowa 1985). Gerard, court.” district certiorari directed McKeever, fact, “certio- as we noted 301; R.App. see also Iowa R.App. Iowa P. ordinarily rari review of court action is 22(a) supreme court to is (authorizing P. at 119. prior disposition.” used to final Id. “supervisory writs furtherance sue Therefore, do not decide whether inferior control all administrative over at issue nontestimonial identification order officers”). Such a tribunals judicial if it is interlocutory. is final Even here may granted or denied. petition interlocutory, subject to a characterization (stating petition R.App. P. 302 doubt, preclude some that fact would prescribed on in manner may be “ruled certiorari review. relat Procedure Appellate in the Rules of *6 22(f) motions”); Iowa P. two R.App. The function of certiorari is ing to (1) authority grant unnecessary or (giving single justice fold: “the avoidance of motion). (2) gener by “the of a deny sought litigation”; provision relief and 10, § at 634- are Certiorari method of when no other means ally Am.Jur.2d review (2000) certiorari (stating by Although review available.” Id. the absence unless man discretionary, provided opportunity otherwise an for review in another is statute). for by primary “[o]ne rule or ner is of the criteria” Davis, certiorari, issuance of a writ of petition “A for a writ of certiorari 822, at of another N.W.2d existence alleged the district court is proper is when not method review does “foreclose jurisdiction to have have exceeded McKeever, certiorari,” 368 N.W.2d use v. illegally.” acted State Public Defender appropri particularly at 119. Certiorari is (Iowa Ct., Iowa Dist. 594 N.W.2d “ jurisdiction ate ‘where the lower court’s 1999). interpreted this standard have legality challenged or the of its acts is on illegality liberally, stating exists when ” exclusively law or constitutional issues.’ ruling court’s lacks evi- “substantial Ct., (quoting Id. Steinbeck Dist. Iowa has dentiary or when the court not support (Iowa 1974)). 224 N.W.2d rule of Allen v. applied proper law.” (Iowa case, Ct, Turning present Dist. to the we observe Iowa Ct., 1998); challenge Dist. that Bousman will be able to Sprous also a any admission of evidence as (granting gathered any in crim- subsequent trial court’s result of order writ certiorari review proceeding, only on inal but criminal discretionary ruling sanctions because if nature”); him. ruling “judicial charges eventually against in filed County, significantly, if court denies v. Iowa More Dist. Ct. Winneshiek for certiorari, 810.3, writ petition §§ for her arrest. See Iowa Code .4. appellate identification,” be subsequent may review still “Nontestimonial used as possible if Bousman held for contempt chapter is refers to such “fin- things as Al- refusing comply with order. gerprints, palm prints, footprints, mea- surements, though ordinarily person charged strands, hair handwriting sam- contempt violating may for a court’s ples, samples, voice blood photographs, order, collaterally not attack the this rule and samples, saliva ultraviolet or black- is applied examinations, tests, “when there was not light paraffin and line- adequate remedy effective ups.” review Id. 810.1. challenged ruling, compliance or where A district judge district associate irreparable injury may could cause may judge issue nontestimonial identifi- repaired appellate vindication.” only cation order upon application of a
Allen,
Thus, Allen,
believe described Statutory III. Pertinent application Provisions. has been committed.
Before we address the merits of Bous- 2. That there challenge man’s to requiring grounds the order him to that suspect person to submit to saliva it sampling, helpful is to or application named described statutory review the framework under felony committed the and it is reason- which this order was Chapter issued. able in view of of the the seriousness provides attorney an avenue for the county person that to the offense to obtain nontestimonial in- requested identification nontestimonial identification suspect prior formation from a procedures. his of the circumstances as shown requested totality of the results 3. That of by the record.” Id. Our review procedures identification entire nontestimonial determining is for statutory sufficiency aid material will be of named or described errors at law. See id. person correction of whether felony. committed the application probable finding B. Was a practi- cannot 4. That such evidence necessary suppoH issuance cause from other sources. cably obtained order? nontestimonial identification added). is the (emphasis Id. 810.6 It argues requiring that the Bousman suspect” element grounds to “reasonable sampling him to for DNA violated appear to Bousman’s claim gives rise protection against unrea his constitutional constitutionally and case is order in this sonable and seizures. See U.S. searches infirm. statutorily Const, (“The right people amend. IV persons against ... the Order Nontestimonial to be secure their IV. Was Properly shall seizures[ ] Issued? unreasonable searches and Identification Const, ”); I, art. not be violated.... re review. We Scope A. (same).2 § 8 He contends that the order quash court’s refusal to view a district supported by probable was not cause to for an abuse of discretion. discovery order burglary he committed the believe that Exam’rs, v. Iowa Bd. Med. See Portz investigation. 592, (setting for review of refusal forth standard Before decide whether the An dis subpoena). abuse agency requires probable Fourth Amendment when “the court exercise[s] cretion occurs us, cause under the circumstances before grounds or for reasons discretion [its] argument we address Bousman’s clearly clearly untenable or to extent requires itself that the order Maghee, v. unreasonable.” probable be based on cause. Section 1997). (Iowa ground “A 810.6(2) requires of “reasonable sup reason is untenable when named evidence or when it ported by substantial in the application or described committed erroneous of the is based on an 810.6(2). It felony.” City Ankeny, law.” Graber area well established in the of Fourth 2000). (Iowa 633, In other N..W.2d jurisprudence Amendment that “reason words, has no discretion to issue a a court something suspect” able less support order that lacks factual discovery Ohio, than Terry cause. See consti governing or is contravention of 392 U.S. 88 S.Ct. *8 statutory provisions. tutional or 889, (1968); Cline, L.Ed.2d 909 State v. (Iowa 2000). Here, 277, Bousman claims that the 617 N.W.2d 282 Proba requires ground[s] to ble prior court’s cause “reasonable refusal consti to rests on an erroneous be arrested belief” Harris, statutory tutional law. Our review of has committed a crime. State v. (Iowa 1992) 561, (emphasis constitutional claim is de novo. 490 N.W.2d 563 Bousman’s added) 70, (holding 72 cause Myers, probable State v. 570 See N.W.2d (Iowa 1997). review, “mere something suspicion”); we “evaluate more than 2. Our of the Fourth Amendment Iowa Constitution. discussion applies equally to claim under the
797
Ceron,
587,
Having
592
investiga
accord State
573
concluded that
(Iowa 1997).
to
grounds
tory
sus
“Reasonable
detentions for identification purposes
hand, merely requires
reasonable,
other
pect,”
must be
pro
we face a more
think
there be
reasonable basis to
blematic issue: whether such a detention
in
“may
that the
suspect
be involved”
only
supported by
is reasonable
when
Cline,
illegal activity.
cause,
at
617 N.W.2d
283 probable
as Bousman contends.
omitted).
(emphasis
This standard is “es
“depends
Reasonableness
on a balance be
in
sentially identical to that established
tween
public
and the
interest
individu
Terry v.
In re
personal
Ohio.”
Nontestimonial
right
security
al’s
to
free from
R.H.,
Order
to
762
Directed
arbitrary
interference
law officers.”
Identification
(Vt.2000);
1239,
A.2d
878,
also State v. Brignoni-Ponce, 422
at
U.S.
95 S.Ct.
Farrell,
327,
2579,
at
“The
ap
Fourth Amendment
however,
plies
person, including
that,
all seizures of the
It
arguable,
because of
seizures that involve
a brief
only
unique
detention
nature of the fingerprinting
process,
short
traditional arrest.” United States
might,
such detentions
878,
Brignoni-Ponce,
873,
circumstances,
422 U.S.
narrowly defined
2574, 2578,
S.Ct.
45 L.Ed.2d
found
comply
with the Fourth
(1975).
temporary
though
Even
intrusions into
Amendment even
there is no
personal
one’s
security
investigatory
probable cause in the traditional sense.
purposes must meet the Fourth Amend
fingerprinting may
Detention for
consti-
requirement.
ment
reasonableness
tute a
less
upon
much
serious intrusion
721, 726,
Mississippi,
Davis v.
personal security
394 U.S.
other types
than
police
Finger-
S.Ct.
L.Ed.2d
680-81
searches and detentions.
(1969);
at
Terry,
U.S.
printing
probing
S.Ct.
involves none of the
1878-79,
Thus,
798 suspect of to line-up and the dard reasonable improper as
abuses
As
probable
than
cause.
noted ear-
rather
there
Finally, because
degree.”
“third
lier,
Supreme Court has
the United States
finger-
of destruction
danger
is no
not re-
probable
cause is
suggested
need not
limited detention
prints,
temporary
quired when
detention
or at an inconvenient
unexpectedly
come
brief,
relatively slight
is a
intrusion
reason,
general
For this same
time.
not involve
person’s privacy,
does
into
authorization
requirement
private
an
exploration
individual’s
advance
judicial officer be obtained
employed
not be
thoughts,
or
need
life
to
admit of
would seem
detention
effective in-
reliable and
repeatedly,
con-
fingerprinting
in the
any exception
tool
as not to be
to
vestigative
so
text.
abuse,
unexpectedly
need not be done
1397-98,
727-28,
22
at
89 S.Ct.
Id. at
Davis,
or
time. See
394
at
inconvenient
omitted).
(citations
at
L.Ed.2d
681
1397-98,
727-28,
at
S.Ct. at
U.S.
dictum,
states,
on this
several
Based
compulsory
at 681. We think
L.Ed.2d
Iowa,
allowing
statutes
including
enacted
at
police
a citizen
station
presence of
iden
to obtain
investigatory
for
detentions
person’s saliva is such
swabbing
of that
suspect
from a
based
information
tifying
procedure
a detention. The identification
See, e.g.,
probable
than
cause.
on less
once,
short,
only
to
does
needs
be done
433,
Evans,
437,
215 Neb.
v.
State
life
private
person’s
invade
(1983);
788,
In re Nontestimo
and can
scheduled in advance
thoughts,
Order, 762 A.2d at
nial
Identification
Undeniably, DNA
for a convenient time.
19-625(1)(B) (2000);
1245; Idaho Code
be valid and
testing
proven
has
useful
Wayne
generally 4
§ 810.6. See
Moreover,
do not
crime-solving tool.
we
LaFave,
9.7(b),
and Seizure
R.
Search
sampling
significant
think saliva
involves a
(1996) (noting that Davis dictum
at 325
bodily security.
into a person’s
intrusion
statutes
states
enact
prompted some
re Nontestimonial
Identification
detention at
“which authorize brief
rules
Order,
Finally,
C. Was the order bearing Iowa license number 18SFRT grounds suspect reasonable Bous- that registered ivhich is to Keith Bousman. burglary? man committed the Bousman The witness was also shown a photo also that was no claims there basis the array consisting photographs. six record before the district court upon Of the photographs, six the witness chose to find reasonable to suspect that # photograph labeled that Bousman committed the under burglary Keith A. Bousman. investigation. above, As noted section 810.6(2) The blood stain on the authorizes a identi checks within nontestimonial the vehicle indicates “only victim[’]s fication order if the court that finds that person may who application burglary committed the the affidavit or affida injured have process vits in themselves support application establish of breaking the A DNA ... window. com- parison of blood with that Bousman[’]s named or applica described of the blood stain from within the felony.” tion committed vehicle 810.6(2). would indicate Bousman[’]s involvement. added.) (Emphasis county The application filed at- torney charge in this case stated complaint Bousman’s chief about investigation a felony county attorney made cen- —third- degree burglary. application provid- on provided by ters the information ed no linking information Bousman to this points unidentified “witness.” Bousman offense, supported by but was the follow- out neither the nor the signed by investigating affidavit provided information from which officer. judge could assess informant’s 31, 1999, Emily credibility.
On March re- Contrary express Shaver to the re- ported to the Clinton Police Department quirements pertaining evidence, Chevy hearsay her Cavalier which was the affidavit did parked the parking particular lot from forth bearing across “set facts *11 any from which the court sion of facts reliability,” nor did it disclose
informant’s credibility and the informant’s information was could assess which the by means “the 810.5(4). reliability informa- the of the informant’s Absent Code Iowa obtained.” 810.5(4), the tion issuance of by precluded the section required facts the reasons. statutory constitutional no basis to assess simply had court here witness, reliability of the credibility the that affi- requirement the statutory The of information only source who was the particular facts bear- davit “shall set forth the commission of connecting Bousman to reliability” “the informant’s on the burglary. the ob- by the information was means however, mandatory. contends, that this tained” The State 810.5(4); v. Dist Ct. the in- see State Iowa significant because omission County, 472 N.W.2d Black Hawk simply a “citizen” who had formant was (Iowa 1991) Niehaus, word (holding that use reliability. See State inherent imposed in warrant (holding “shall” search statute “obligatory, not duty optional”). a that was presumption rebuttable that there is a that a requirement This ensures nontesti- by citizen infor- imparted “information reliable”). only is “issued “A monial identification order generally citizen mant Myers, 570 upon reliable information.” person as a ordinarily defined informant is test of (discussing “statutory at 73 to or a victim of a crime.” N.W.2d is a witness who credibility” with re- individual confidential informant initially that Id. We note warrants). Because investigating spect to search providing information in the application and oth- and affidavit submitted in case was unnamed officer re- case lacked the information question present whether unidentified. We erwise 810.5(4) respect with unnamed, quired can ever section unidentified credibility reliability, informant. See informant’s a citizen be considered Weir, provided the informant should N.W.2d facts generally State 1987) (Iowa assessing the a not have been considered in (distinguishing between made for issu- adequacy informant and an informant confidential ance of the nontestimonial identification in a search warrant “named” affidavits). addition, Hawk order. Dist. Ct. Black supporting Cf County, (holding supposition to conclude would sheer mandatory noncompliance require- with affidavit here that infor- based on the Nothing designed in ment search warrant statute mere citizen. mant was a upon saw to ensure that warrants are issued indicates that the witness required that informa- a victim of it. There are reliable information crime or was provided by ignored affidavit that would tion informants simply no facts cause). determining whether the wit- Since have informed court citizen, fact, was, only informant was the of informa- source ness disinterested burglary, Bousman to the grudge against connecting with Bous- tion was someone provide the infor- the affidavit did sufficient provided man or someone who basis for the district court find reason- exchange mation for some concession on of com- against able Bousman charges pending informant. this crime. mitting is what question now arises comply the order absence failure Issuance effect State’s has the nontestimonial violated both The dis- think the 810 and the Fourth Amendment. order. We omis- identification *12 failing regarding trict court erred established rules of pre- review liminary rulings on this in criminal order basis. cases. plaintiff It is true this was not under Summary Disposition. V. arrest, all but this is the more reason to A nontestimonial identification or deny review at this time. The district pursuant chapter der issued 810 must ruling court’s preliminary many so constitutionally be reasonable. This re subsequent events could make the order quirement that the be means order must moot. example, might For he even sus supported reasonable arrested. He might charged, not be and if pect subject that the of the order commit charged, he might not be convicted. If investigation. ted the crime under Proba convicted, appeal, he can and the issue ble cause to believe could be considered that time. For this actually order committed the crime is reason, certiorari, which is discretionary necessary. our part, should denied. evidentiary showing support issued in this case was deficient
because it not include did the information
required by respect
the unnamed informant. As a conse-
quence, the court not have should consid- the information provided
ered the infor- information, mant. In the absence F.K., Mother, Plaintiff, were support there insufficient facts to finding to suspect IOWA DISTRICT COURT FOR POLK burglary
that Bousman committed the be- COUNTY, Defendant. ing investigated, required by as 810 and the Fourth Amendment. No. 99-0095. improperly Because the order was is- Supreme Court Iowa.
sued, the district court abused discre- tion in failing grant Bousman’s motion July 2001. Therefore,
to quash. we sustain writ As Amended on of Rehearing Denial of certiorari and entry remand the case for July of an granting motion quash. SUSTAINED;
WRIT RE- CASE
MANDED. J., justices LARSON,
All concur except
who dissents.
LARSON, (dissenting). Justice majority
I applies dissent because the
certiorari as a vehicle to consider claim
that could not be considered an applica- discretionary
tion for review. doing, so encourages run long- end on our