author: LAVORATO, Chief Justice.

text:
    MARTIN MARIETTA MATERIALS, INC., Stanley Pearson and Marjorie Pearson, Appellants, v. DALLAS COUNTY, Iowa and Board of Adjustment of Dallas County, Iowa, Appellees, and Knapp-Pulver, L.C., and W & G McKinney Farms, L.P., Intervenors-Appellees.
    No. 02-1855.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Bernard L. Spaeth, Jr. and Theodore C. Simms, II of Whitfield & Eddy, P.L.C., Des Moines, for appellants.
    James E. Brick and James E. Nervig of Gentry, Bowers, Swartz, Stoltze, Sehuling, Levis, P.C., Des Moines, for appellees.
    Gary M. Myers and Heather L. Palmer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for intervenor-appellee Knapp-Pulver, L.C.
    James V. McKinney of McKinney Law Offices, P.C., Waukee, for intervenor-ap-pellee W & G McKinney Farms, L.P.
   LAVORATO, Chief Justice.

In this certiorari proceeding, the plaintiffs appeal a district court ruling affirming a board of adjustment decision denying their application for a conditional use permit. The permit would have allowed the operation of a sand and gravel excavation business in Dallas County, Iowa. Because we conclude the district court abused its discretion in refusing to allow discovery depositions and in excluding testimony from two witnesses, we reverse and remand.

I. Background Facts.

On March 16, 2001, Martin Marietta Materials, Inc. and Stanley and Marjorie Pearson filed an application for a conditional use permit with Dallas County. Martin Marietta had negotiated an option to purchase from the Pearsons the property described in the application. Martin Marietta sought permission to build and operate a sand and gravel business on the property, which was zoned A 2 (agricultural/conservation/floodplain district).

The Dallas County ordinance allows mining of sand and gravel on property zoned A-2 upon issuance of a conditional use permit. Dallas County, Iowa, Ordinances §§ 45.10(1), 45.09(3)(B)(c) (2001). Before the Board of Adjustment may grant such a permit, it must find all of the following:

(a) Surrounding Area. The value and qualities of the area (or neighborhood) surrounding the conditional use are not substantially injured, and the establishment of a conditional use will not impede the normal and orderly development and improvement of surrounding property for uses predominant in the area.
(b) Infrastructure. That adequate utilities, access roads, drainage, and other necessary facilities have been or are being provided.
(c) Intent of Ordinance. That the conditional use is consistent with the intent and purpose of this Ordinance to promote public health, safety, and general welfare.
(d) Nuisance Factors. That adequate measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration, so that none of these will constitute a nuisance and to control lighted signs and other lights in such a manner that no disturbance to neighboring properties will result.
(e) Comprehensive Plan. That the conditional use is not inconsistent with the comprehensive plan and land use policies of the County.

Id. § 45.09(3)(C)(a)-(e).

Initially, the Dallas County Planning and Zoning Commission considered the application and following public hearings approved it on May 29, 2001.

The ordinance originally provided that applications for conditional use permits be first submitted to the Planning and Zoning Commission and then be approved by the Board of Supervisors. Hallett Construction had earlier requested a permit to remove gravel on land east of and adjacent to the Pearsons’ property. The Planning and Zoning Commission approved Hallett’s application on October 17, 2000, following which the Board of Supervisors approved the application on December 21, 2000. In addition to the Board of Supervisors’ approval, Hallett obtained Board of Adjustment approval on March 8, 2001.

Iowa Code sections 335.10 and 335.15(2) (2001) require that a county board of adjustment rather than the county board of supervisors approve all conditional uses or special uses. Because of these statutory provisions, Knapp-Pulver, L.C. and W & G McKinney Farms, L.P. — intervenors in the present action — successfully challenged in the district court the Dallas County ordinance provision that was contrary to these statutes. On July 24, 2001, the district court held that conditional uses or special uses be approved by a county board of adjustment rather than the county board of supervisors. This holding is in accord with our case law. See Holland v. City Council, 662 N.W.2d 681, 683 (Iowa 2003).

On September 19, 2001, the Board of Supervisors amended the zoning ordinance to require that conditional uses be approved by the Board of Adjustment in accordance with sections 335.10 and 335.15(2). The amendment provided that applications that had been reviewed by the Planning and Zoning Commission and had received a positive recommendation from that body could be submitted directly to the Board of Adjustment for approval.

Thereafter on September 20, 2001, Martin Marietta’s attorney at the time, Randy V. Hefner, requested in writing that the Board of Adjustment consider Martin Marietta’s application which had been on file since March 16, 2001. In the same letter, Hefner, who was also representing Hallett, requested that Hallett’s application also be considered. As mentioned, Hallett had already obtained approval from the Board of Adjustment on March 8, 2001; however, this was before the Board of Supervisors had amended the ordinance. (Apparently, Hallett and the Board of Supervisors were not sure whether this prior approval from the Board of Adjustment was valid. Hallett had discontinued operations at the request of the Board of Supervisors pending a hearing before the Board of Adjustment.)

In the September 20 letter, Hefner wrote:

There are, however, two applications which have been reviewed by [Planning and Zoning], but not voted upon by the Supervisors. These are, of course, the Nextel and Martin Marietta applications. Since Hallett has been asked by Dallas County to not operate pending a hearing before the Board of Adjustment, it would also logically fall into this category.
Thus, we submit that these three applications should be processed by the Board of Adjustment first and as soon as possible.... We do understand that the Martin Marietta application is likely to be the most controversial application and will likely require the longest hearing, and thus we would understand scheduling that application as the last of these three to be heard.

On October 9 the Board of Supervisors passed a resolution “to proceed with a mining study for a compatible or suitable land use in designated areas.” The study was deemed necessary to “making informed and appropriate decisions for permitting mining operations in Dallas County.”

On October 16 the Board of Supervisors passed a resolution seeking review by the Planning and Zoning Commission of a proposed ordinance regarding applications for mining operations in Dallas County. Within that proposed ordinance was a prohibition from accepting, processing, or setting for hearing “applications for conditional use permits for the mining of sand, gravel or limestone within Dallas County filed after October 16,2001” for six months or until the completion of the mining study, whichever was earlier.

On October 17 the Board of Adjustment held a hearing on the Hallett application and approved it in substantially the same form that the Board of Supervisors had approved it on December 20, 2000. McKinney Farms challenged the Board of Adjustment’s decision by writ of certiorari to the district court. The only issue raised was whether the issuance of the conditional use permit by the Board of Adjustment complied with the Dallas County Comprehensive Plan. The district court denied McKinney Farms’ request for relief. Thereafter McKinney Farms appealed and we affirmed. See W & G McKinney Farms, L.P. v. Dallas County Bd. of Adjustment, 674 N.W.2d 99 (Iowa 2004).

On October 23 the Board of Supervisors passed a resolution in which it noted that the Board of Adjustment was to hear the Martin Marietta application on the following day. The resolution also noted that the Board of Adjustment’s approval of the Hallett application on October 17 “impact[ed]” the Martin Marietta application. The resolution further noted that the Board of Supervisors had approved Hal-lett’s application but not Martin Marietta’s and that it did not “intend to convey approval of the [Martin Marietta] application by its action on the Hallett application.” Finally, the resolution requested the Board of Adjustment

not [to] approve or deny the [Martin Marietta] application for Conditional Use Permit based on any action previously taken by the Board of Supervisors and that no permit be issued to any applicant unless and until the Board of Adjustment is satisfied that the application meets all applicable requirements of Chapter 45 of the Dallas County Code of Ordinances.

The following day — October 24 — the Board of Adjustment conducted a public hearing on Martin Marietta’s application. The Board heard from individuals who opposed the application as well as from those who favored it. The Board denied the application by a vote of four to one.

II. Proceedings.

On November 26 Martin Marietta and the Pearsons (hereinafter collectively Martin Marietta) filed their petition for writ of certiorari, declaratory judgment, mandamus, and judicial review against Dallas County and the Board of Adjustment (hereinafter County). On February 11, 2002, the district court ordered that a writ of certiorari should issue and be served upon the Board of Adjustment. On March 11 the Board of Adjustment filed a return to the writ.

On April 11 the district court granted motions to intervene filed by Knapp-Pul-ver and McKinney Farms, property owners near the property in question. Later, the district court sustained Martin Marietta’s challenge that the Board of Adjustment’s decision did not meet the “written findings of fact” requirement as set out in Citizens Against the Lewis & Clark Landfill v. Pottawattamie County Board of Adjustment, 277 N.W.2d 921 (Iowa 1979). The court remanded the case to the Board of Adjustment to prepare written findings of fact in compliance with Lewis & Clark.

The district court’s ruling prompted Martin Marietta to file a second lawsuit on May 31. The purpose of the lawsuit was to preserve Martin Marietta’s right to contest the denial of its request for conditional use permit in the event the district court’s remand to the Board of Adjustment constituted a general rather than limited remand. Later, at Martin Marietta’s request, the district court consolidated this second lawsuit with the certiorari action.

On April 17 the district court granted the County’s motion for protective order. The motion was filed in response to Martin Marietta’s request to depose “various members of the [Dallas] County staff, the Board of Supervisors, the Board of Adjustment,” and also, apparently, any lawyers involved in representing Dallas County, the Board of Supervisors, and the Board of Adjustment.

On May 2 the Board of Adjustment met and adopted findings of fact in support of its October 24, 2001 decision denying Martin Marietta’s conditional use permit application. On May 13 the Board of Adjustment filed a supplemental return to the writ of certiorari containing the Board of Adjustment’s findings of fact.

On August 5 the district court heard the consolidated action in a bench trial. By then, Martin Marietta had dismissed its petition for judicial review. The court noted that Iowa Code section 335.19 provides that a certiorari action is the vehicle for a review of a board of adjustment decision. The court also noted that the briefs of the parties appeared to treat the proceedings as a certiorari action, and for that reason the court decided it was appropriate to proceed on that basis.

Shortly before hearing the matter, the district court sustained a motion in limine concerning the testimony of attorney Hefner. During trial, Martin Marietta made an offer of proof regarding Hefner and another witness, Neil Grant. The district court sustained objections to their testimony.

Following trial, the district court issued findings of fact, conclusions of law, and order in which it affirmed the Board of Adjustment decision denying Martin Marietta’s application for a conditional use permit. Martin Marietta appealed.

We set out additional facts as they relate to the issues we discuss.

III. Issues.

Martin Marietta raises five issues on appeal, two of which are dispositive. We restrict our discussion to these two issues, which we note are related. The first issue is whether the district court abused its discretion in granting the County its protective order prohibiting discovery depositions. The second issue is whether the district court abused its discretion in refusing to admit the testimony of Neil Grant and Randy V. Hefner in the certiorari action.

IV. Statutory Framework.

Before proceeding to the issues, we think it would aid our analysis to discuss the statutory framework within which the courts must operate when reviewing board of adjustment decisions.

Except when modified by statute or constitutional principle, certiorari provides limited review of factfindings of an inferior tribunal. In ordinary certiorari actions, the findings of fact of the inferi- or tribunal may not be upset if they are supported by substantial evidence....

Weldon v. Zoning Bd., 250 N.W.2d 396, 400 (Iowa 1977). Iowa Code chapter 335, which governs challenges to county board of adjustment decisions, modifies the general rule in zoning cases.

Martin Marietta filed its certiorari action in district court under Iowa Code section 335.18. This provision allows

[a]ny person or persons, jointly or severally, aggrieved by any decision of the board of adjustment ... [to] present to a court of record a petition ... setting forth that such decision is illegal, in whole or in part, specifiying the grounds of the illegality.

Iowa Code § 335.18.

Once such petition is presented, “the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made.... ” Iowa Code § 335.19.

Iowa Code section 335.21 provides:

If upon the hearing which shall be tried de novo it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence ... which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Iowa Code § 335.21.

Section 335.21 tracks verbatim the language of Iowa Code section 414.18, which pertains to municipal zoning. This court has given the same interpretation to both sections. See Trailer City, Inc. v. Bd. of Adjustment, 218 N.W.2d 645, 647 (Iowa 1974). In Trailer, this court said what “de novo” means under both sections:

The term “de novo” as used in either section [sections 414.18 and 335.21] does not bear its equitable connotation. It authorizes the taking of additional testimony, but only for the submission and consideration of those questions of illegality raised by the statutory petition for writ of certiorari. Upon the hearing to determine such questions the trial court, as both sections 414.18 and [335.21] provide, “... may reverse or affirm, wholly or partly, or may modify the decision brought up for review.”

Id. at 647-48.

The questions of illegality for which additional testimony may be taken include

“[a]rbitrary and unreasonable action or proceedings, not authorized by, or contrary to, the terms or spirit and purpose of the statute creating and defining the powers of the board, or contrary to, or unsupported by, facts on which the power to act depends, or within which the power must be exercised.... ”

Baker v. Bd. of Adjustment, 671 N.W.2d 405, 413 (Iowa 2003) (citation omitted).

Under both section 414.18 and section 335.21, the district court makes its own findings of fact on the record made in the certiorari proceeding. Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa 1996). That record includes the return to the writ and any additional evidence which the parties may have offered. Id. But the district court may not decide the case anew. Id. If the facts the district court finds do not provide substantial support for the board’s decision, then the illegality of the board’s action is established. Id. If the facts the district court finds leave the reasonableness of the board’s decision open to a fair difference of opinion, the court may not substitute its decision for that of the board. Id.

Our review on appeal of the district court’s decision is at law. Baker, 671 N.W.2d at 414. We are therefore bound by the district court’s findings if supported by substantial evidence. Id. But we are not bound by erroneous legal rulings that materially affect the court’s decision. Id.

V. The Protective Order.

On February 21, 2002, Martin Marietta’s counsel by telephone informed the County’s counsel that it intended to take discovery depositions. Apparently, the County’s counsel objected indicating the case should be decided on the record. On February 26 Martin Marietta’s counsel by letter to the County’s counsel confirmed the telephone conversation and again insisted on discovery depositions. This letter prompted the County to file a motion for protective order, which had attached to it the February 26 letter, to prevent the discovery.

According to Martin Marietta, the following background, most of which was set out in Martin Marietta’s resistance to the motion for protective order, prompted its request for discovery depositions. The Board of Supervisors had always supported Hallett’s permit application, which the Board of Adjustment had approved on a five to zero vote just one week before the same Board denied Martin Marietta’s request. The Board of Supervisors vigorously opposed Martin Marietta’s permit application as witnessed by the Board’s chairman, Marvin Shirley, who had made many statements in opposition to the Martin Marietta’s permit application before the Board of Adjustment’s decision to deny the application.

Murray McConnell, Director of Planning and Development in Dallas County, had always voiced support for Martin Marietta’s permit application. Suddenly, at the October 24 hearing, McConnell did an about face when a member of the Board of Adjustment asked him for an opinion as to the five conditions necessary to approve the permit application and whether or not they had been met. Excerpts from McConnell’s response follow:

So you can see that these are the five conditions that we’ve been hitting on all night long. It’s true that it would be my interpretation of the ordinance that [the permit application] needs to meet all five in order for.you to grant a conditional use [permit] on this property.
If you want my professional opinion, the one condition I feel the least comfortable with would have to be condition (a). I believe that it is extremely difficult to quantify the effect of a second operation on property values in the area, and one of the reasons that’s so difficult to- quantify is that this deals with perception. How is the area perceived? You know, will adding a second sand and gravel operation make this area perceived differently than it is now or has been in the past?
Like I said that’s the one I feel probably the least comfortable with.... Because if there are any nuisance factors that are created, obviously having a second one in close proximity could increase those.
Because of that, if I was asked to -make some sort of recommendation, I feel that my problem with condition (a) puts me close to a comfort zone that I don’t.feel at this time that I can give a recommendation that you approve this.

Significantly, there was no discússion or deliberation before the Board of Adjustment voted four to one to deny Martin Marietta’s permit application. And more important, the Board’s decision to deny the application was based in part on condition (a) not being met and the adverse cumulative effect that would result from having two gravel pits side by side.

Later, Martin Marietta learned that McConnell had allegedly been threatened with the loss of his job if he did not recommend against Martin Marietta’s permit application and that this had been the reason for his statements at the October 24 hearing. The record is not clear when Martin Marietta learned that McConnell had allegedly made this statement. The first indication in the record of the alleged statement is attorney Hefner’s affidavit filed on July 2, 2002, about one month before the district court heard the certio-rari action. In his affidavit, Hefner stated that shortly after the October 24 Board of Adjustment meeting McConnell admitted that the opinion he gave to the Board of Adjustment was the product of a threat that he would be fired. Specifically, McConnell allegedly said to Hefner: “I hope you understand why I made the recommendation I did. If I had not made the recommendation, it would have cost me my job.” McConnell filed an affidavit one week after Hefner’s affidavit in which he denied making the statements Hefner claimed he made.

What Martin Marietta wanted to do was to take the depositions of McConnell, the members of the Board of Supervisors, and the members of the Board of Adjustment. The purpose of the depositions was to determine whether undue influence had been exercised on the Board of Adjustment and McConnell by members of the Board of Supervisors that resulted in the Board of Adjustment’s decision on October 24.

Martin Marietta also wanted to depose the attorney initially hired by the Board of Supervisors to assist the Board in pending litigation and whom the -Board of Supervisors had assigned to handle the hearing before the Board of Adjustment on Martin Marietta’s application. According to Martin Marietta, it was concerned that the Board of Supervisors may have used the attorney who was acting in a dual capacity to communicate their opposition to Martin Marietta’s permit application.

In its petition, Martin Marietta alleged that the Board of Adjustment acted illegally by making a decision based on undue and improper influence. In support of that allegation, Martin Marietta believed that the proposed discovery depositions would establish its claim that the Board of Adjustment decision was “orchestrated by the Board of Supervisors for political reasons.” Given these allegations, we believe the discovery that Martin Marietta was seeking was certainly relevant to these allegations.

Although the district court denied Martin Marietta’s request for discovery and granted the County’s motion for protective order, the court in an order clarifying its ruling left the door open. The court first acknowledged the general rule that officials of an administrative agency cannot be compelled to testify, whether by deposition or in trial, concerning the procedure or manner in which they made their findings or reached their conclusions. However, the court also acknowledged a recognized exception: Such compulsory testimony is permitted when there is a clear showing of illegal or unlawful action.

Because of the exception, the court modified its previous ruling to permit Martin Marietta to submit written interrogatories to McConnell. The court then stated it would reconsider its existing protective order if McConnell’s answers “give rise to a clear showing of illegal or unlawful conduct.” Until then, the court made it clear that

the protective order is applicable to members of the Board of Adjustment and the Board of Supervisors and their counsel as to deposition or testimony at the time of trial. It is equally applicable to any deposition or testimony of Mr. McConnell at the time of trial.

For whatever reason, Martin Marietta did not submit interrogatories to McConnell as the district court had permitted. It now contends the district court abused its discretion forbidding discovery depositions. For reasons that follow, we agree.

Our review of a district court ruling granting a protective order is for abuse of discretion. Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 181 (Iowa 1990). “Discretion is abused when it is exercised on grounds clearly untenable or to an extent clearly unreasonable.” Berg v. Des Moines Gen. Hosp. Co., 456 N.W.2d 173, 177 (Iowa 1990).

Boards of zoning adjustment are “ ‘quasi-judicial bodies having quasi-judicial powers, functions, and duties, essentially fact-finding and discretionary in nature.’ ” Bluffs Dev. Co. v. Bd. of Adjustment, 499 N.W.2d 12, 14 (Iowa 1993) (citation omitted). When such bodies pass on the issuance of a permit, like the one here, they act in a quasi-judicial capacity. See id. In such circumstances, board members are

“disqualified or incompetent to sit in a proceeding in which [they have] prejudged the case, or in which [they have] a personal or pecuniary interest, where [they are] related to an interested person ..., or where [they are] biased, prejudiced, or labor[] under a personal ill-will toward a party.”

Id. at 14-15 (citation omitted) (brackets in original). “Deviation from the rule can invalidate the governmental action taken.” Id. at 15.

As one court has noted,

[n]o authority would appear to be necessary to support the conclusion that in the performance of [a zoning board of adjustment] adjudicatory function, the parties whose rights are involved are entitled to the same fairness, impartiality and independence of judgment as are expected in a court of law. Although procedures and rules of evidence are less rigid in quasi-judicial bodies than in courts, there can be no difference, under our concept of justice, between the two tribunals in respect of these fundamental requirements.

Jarrott v. Scrivener, 225 F.Supp. 827, 833 (D.D.C.1964).

Here, what Martin Marietta wanted to get at was whether any of the Board of Adjustment members were unduly and improperly influenced to the extent that such members were biased against granting the use permit. There is a “presumption of regularity that attaches to the decisions of administrative agencies” that protects them against inquiry into how they reach their decisions based upon mere suspicion. Wright v. Indus. Comm’n, 10 Wis.2d 653, 103 N.W.2d 531, 535 (1960). However, that presumption may be overcome by a “strong showing of bad faith or improper behavior” that will allow such an inquiry. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136, 155-56 (1971); accord Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997); Town of Norfolk v. United States Army Corps of Eng’rs, 968 F.2d 1438, 1458-59 (1st Cir.1992); Brands v. Sheldon Cmty. Sch., 671 F.Supp. 627, 634 (N.D.Iowa 1987); Abbott Labs. v. Harris, 481 F.Supp. 74, 78 (N.D.Ill.1979); Kholeif v. Bd. of Med. Exam’rs, 497 N.W.2d 804, 806-07 (Iowa 1993).

The problem here was that Martin Marietta did not make a proper showing of bad faith or improper behavior on the part of Board of Adjustment members to overcome the presumption of regularity. Cf. Kholeif, 497 N.W.2d at 807 (holding that under Iowa Administrative Procedure Act party must point to objective facts by affidavit sufficient to convince reasonable fact finder that agency bias existed before record on review will be expanded to include agency’s closed-session deliberations). We therefore can hardly say the district court abused its discretion in denying Martin Marietta the right to inquire into the mental processes of the Board of Adjustment members in how they reached their decision.

Although Martin Marietta could not inquire into such mental processes, there is no rule that would prohibit it from asking all of those it wanted to depose whether there was communication with the Board of Adjustment members and what that communication was. Cf. Bluffs Dev., 499 N.W.2d at 16-17 (claim that members of county zoning board of adjustment had prejudged application for conditional use not supported by questioning of individual members at hearing or by depositions during certiorari proceedings following the hearing). In that way, Martin Marietta would at least have the opportunity to establish preliminarily that Board of Adjustment members were indeed subject to improper influence that might have led to its decision. Such a showing would be more than a mere suspicion and would in our judgment overcome the presumption of regularity.

Unless such discovery is allowed, how else could Martin Marietta make such a preliminary showing? See Pub. Power Council v. Johnson, 674 F.2d 791, 792, 795 (9th Cir.1982) (deposition of decision maker permitted on allegation of bad faith). And as one court has held, “[t]o conclude otherwise would be an abandonment of any meaningful judicial protection against arbitrary administrative action.” Abbott Labs., 481 F.Supp. at 78 (deposition of decision maker permitted on a showing of unreasonable delay in agency’s decision); see also Sokaogon Chippewa Cmty. v. Babbitt, 961 F.Supp. 1276, 1281 (W.D.Wis.1997) (plaintiffs made sufficiently “strong showing” of improper influence by way of political pressure and other means on agency decision-makers to be entitled to extra-record discovery and examination of agency personnel); Jarrott, 225 F.Supp. at 831 (district court held hearing at which Board of Zoning Adjustment members were required to testify as to political pressure put on them to allow foreign government’s application for exception to erect embassy building in residential zone).

In Abbott Laboratories, the court aptly recognized that

[t]he complex of factors which lead a court to conclude that discovery is warranted cannot be generalized. It is necessarily an ad hoc judgment in which the judicial reluctance to intrude into the decisional process of the agency having special competence is overborne by the conclusion that the process may well have gone awry.

481 F.Supp. at 78.

For these reasons, we think the district court abused its discretion when it prohibited any discovery save the interrogatories to McConnell. If Martin Marietta does make the preliminary showing of improper behavior or bad faith, then it would indeed have the right to inquire into the mental processes of the Board of Adjustment members.

VI. Testimony of Grant and Hefner.

As mentioned, the Board of Adjustment had to find five conditions existed before it could issue the conditional use permit. As also mentioned, at the Board of Adjustment hearing, one of its members asked McConnell, Director of Planning and Development, his opinion as to whether the five conditions had been met. Contrary to his previous statements of support for Martin Marietta’s permit application, McConnell did not feel he could recommend approval. His opinion was based on a feeling that condition (a) may not have been met and because of the adverse cumulative effect resulting from two sand and gravel pits existing side by side.

Condition (a) states:

The value and qualities of the area (or neighborhood) surrounding the conditional use are not substantially injured, and the establishment of a conditional use will not impede the normal and orderly development and improvement of surrounding undeveloped property for uses predominant in the area.

Dallas County, Iowa, Ordinances § 45.09(3)(C)(a).

The Board of Adjustment found, among other things, that condition (a) had not been met. It also found that

the cumulative environmental impact of two such large mining uses on adjacent sites would result in substantial injury to the values and qualities of the area surrounding the two operations, would significantly impede the normal development of surrounding undeveloped property for uses predominant in the area, would result in significantly greater levels of vehicular traffic, odor, fumes, dust, noise, and vibration than would be generated by a single mining operation, alone and would adversely impact public health, safety and general welfare.

The district court found there was substantial evidence to support both findings. It is safe to assume McConnell’s opinion played a role in the Board of Adjustment’s decision as well as the district court’s decision.

We review these facts as background for the remaining issue.

As mentioned, Hefner filed an affidavit shortly before the certiorari trial about McConnell’s alleged statement that the opinion he gave at the Board of Adjustment meeting was the product of a threat that he would be fired had he not recommended against Martin Marietta’s permit application. At the start of the certiorari trial, the district court sustained the County’s motion in limine as to Hefner’s testimony. Martin Marietta then made an offer of proof with Hefner about the threat. Hefner also testified in the offer of proof that because the Board of Adjustment had asked McConnell for his opinion, that opinion was critical to the Board’s decision.

Hefner further testified in the offer of proof that McConnell told him that one of the intervenors was pressuring Shirley, the Chairman of the Board of Supervisors, to bring pressure on McConnell to oppose Martin Marietta’s application. In fact, in one e-mail, McConnell simply stated “the political pressure continues to mount.” Hefner also testified that Shirley said publicly one month before the Board of Adjustment hearing that he was opposed to the Martin Marietta application.

Martin Marietta also made an offer of proof with Neil Grant. Grant was a Martin Marietta employee and had held the position of West Des Moines city planner. Grant testified in the offer of proof that McConnell had made public statements that the best use of the Pearson property was for sand and gravel operations, but for political reasons, that would never happen. The court sustained a relevancy objection to this testimony because the statement was made after the Board of Adjustment had made its decision.

The testimony of both witnesses supported Martin Marietta’s claim that the Board of Adjustment decision was the product of bad faith or improper conduct. If McConnell’s true opinion was what Hefner and Grant claimed and had McConnell rendered that opinion to the Board of Adjustment, its decision may well have been different. Moreover, the testimony, if believed, would support a finding that the proceedings before the Board of Adjustment and its decision were so tainted that the decision could not stand. See United States Cellular Corp. v. Bd. of Adjustment, 589 N.W.2d 712, 719 (Iowa 1999) (affirming district court’s finding that Board of Adjustment denial of applicant’s request for special use permit was made in bad faith); see also Jarrott, 225 F.Supp. at 883-34 (holding that fair and impartial hearing was denied where three Board of Zoning Adjustment members of District of Columbia, two of whom were subordinate government employees, were secretly informed that highly placed persons in government wanted Board to grant foreign government’s application for exception to erect embassy building in residential zone; such action rendered Board’s favorable decision void). For these reasons, we conclude the district court abused its discretion in not allowing the testimony of both witnesses. See Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000) (“We review a district court’s decision concerning the admission of relevant evidence for an abuse of discretion.”).

VII. Disposition.

Because we conclude the district court abused its discretion in not allowing discovery depositions and excluding the testimony of the two witnesses, Grant and Hefner, we reverse the decision of the district court and remand for further proceedings.

On remand the district court shall allow discovery depositions of all the individuals Martin Marietta designated in its request to the County. The questioning shall be limited to whether there was communication with the Board of Adjustment members and what that communication was. If the district court determines that Martin Marietta has made a showing that such communications were improper or made in bad faith, it may allow Martin Marietta to inquire into the mental processes of the Board of Adjustment members in reaching their decision. Once such discovery is completed, the court shall allow Martin Marietta a new trial at which the court will receive and consider the testimony of Grant and Hefner as well as additional relevant evidence obtained during discovery in reaching its decision.

REVERSED AND CASE REMANDED WITH DIRECTIONS.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Sheila Ann LOVIG, Appellant.
    No. 02-2034.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Matthew T. Lindholm of Hoyt Law Firm, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Stephen Holmes, County Attorney, and Mary Howell Sirna, Assistant County Attorney, for appellee.
   CADY, Justice.

In this appeal, we consider whether the district court properly denied the defendant’s motion to suppress evidence garnered through a warrantless search of an apartment. The district court determined that probable cause and an exigent circumstance existed to justify the limited entry into the apartment by law enforcement officers. The defendant challenges this finding on appeal and seeks suppression of the evidence. For the reasons that follow, we reverse the decision of the district court and remand for further proceedings.

I. Background Facts and Proceedings.

Shortly after 9:00 p.m. on March 29, 2002, deputy Brian Tickle (Tickle) was dispatched to the scene of a single-vehicle rollover accident near Story City. When Tickle arrived at the scene, he found a red Pontiac Grand Am resting on its top in a roadside ditch. The driver of the vehicle was no longer present, but three witnesses and two other law enforcement officers were at the scene. One of the witnesses told Tickle that she spoke with the female driver of the overturned vehicle in an effort to ascertain whether the driver needed medical assistance. At the time of the conversation, this person was sitting in a Chevrolet Blazer that was also at the scene. The witness noticed that the woman’s breath smelled strongly of alcohol. She asked the driver of the Blazer whether she should call for emergency assistance and he responded that she should not call. After the witness advised them that she had, in fact, already called, the Blazer quickly sped away.

After acquiring this and other information from the witnesses at the scene, the officers checked the license plate numbers of the Grand Am and the Blazer. The Blazer came back registered to Price Barker (Barker). The Grand Am was registered to the defendant, Sheila Ann Lovig (Lovig). The two other officers at the scene, officer Jerry Spencer (Spencer) and deputy Mike Miller (Miller), eventually left to pursue the Blazer and its occupants. Tickle processed the accident scene, examining it and taking photographs and witness statements. While examining the area, Tickle found an open bottle of beer, containing a small amount of alcohol, outside of the vehicle. Inside the vehicle, he found five empty bottles of beer in a grocery bag.

Meanwhile, Spencer found and interviewed Barker, the driver of the Blazer. Barker told the officer that Lovig had been driving the Grand Am and admitted that he had taken her away from the scene in his Blazer. He also told Spencer that Lovig had exited the Blazer as soon as they had reached town and that he did not know where she was presently. Spencer then interviewed members of Lovig’s immediate family to find out whether any of them had seen her. Lovig’s brother advised the officer that they should contact Tanya Hopkins (Hopkins), her cousin, with whom Lovig occasionally stayed, to find out whether she had seen Lovig.

Spencer went to Hopkins’ apartment. As he approached the door, he heard two females, including one he recognized as Hopkins, discussing a recent phone call from Lovig’s sister-in-law informing them that officers may be on them way to the residence. Hopkins told the other woman that the woman needed to leave before the officers arrived. After listening for a couple minutes, Spencer knocked on the door and Hopkins answered. Spencer asked to speak to Lovig and Hopkins claimed she was alone in the apartment with her two small children. Spencer continued to talk to Hopkins in hopes that she would be more cooperative. At one point, Hopkins closed the door, explaining that she wanted to check on something. After waiting for a moment, the officer knocked again and Hopkins again answered. At some point, Spencer called for back-up assistance, and deputies Noel Raufaste (Raufaste) and Tickle arrived shortly after 11:00 p.m.

Both Spencer and Raufaste asked Hopkins several times if Lovig was in the apartment and requested that they be allowed inside or for Lovig to come outside. Hopkins told them that they could not come inside and that no one would come outside because she did not want “Sheila” to get in trouble. Eventually, Raufaste told Hopkins that Lovig was already in trouble and warned Hopkins that her further failure to cooperate could result in charges being filed against her related to interfering with the officers’ investigation. At this point, Hopkins allowed the officers into the apartment.

After they entered the apartment, the officers established that Lovig was in a back bedroom, behind a locked door. The officers knocked on the bedroom door and asked Lovig to come out. When she refused, Raufaste threatened to force the door down. Lovig then opened the door and was arrested. She was later charged with operating a motor vehicle while intoxicated (OWI), second offense, an aggravated misdemeanor punishable by at least seven days of incarceration and a fine of at least $1500. Iowa Code §§ 321J.1, 321J.2(2)(6) (2001); see also id. § 903.1(2) (providing the maximum penalties for an aggravated misdemeanor: imprisonment not to exceed two years and a fine of no more than $5000).

On July 15, 2002, Lovig filed a motion to suppress any and all evidence in her case, alleging, among other claims, a violation of her Fourth Amendment right to be free from unreasonable search and seizure. At a subsequent hearing on her motion, Lovig withdrew all of the allegations in her written motion and was permitted by the district court to make a verbal amendment to the motion. In its ruling on the motion, the district court characterized the verbal amendment as alleging solely “that a war-rantless search of an apartment leased by [Hopkins], resulting in the seizure and arrest of the defendant was an unconstitutional search in violation of the defendant’s rights under the Fourth Amendment.”

The district court went on to decide that, while the circumstances surrounding Lovig’s arrest did not appear to be constitutionally permissible at first blush, the high state interest in preventing individuals from operating a motor vehicle while intoxicated, coupled with information related to the effect a delayed arrest may have on the amount of alcohol in a person’s body, supported the officer’s limited entry into the apartment. The district court denied the motion to suppress. After the district court’s ruling, Lovig signed a waiver of jury trial and stipulated to a trial on the minutes of testimony in her case. She was found guilty of OWI, second offense, and was sentenced to a term not to exceed two years with all but seven days suspended and was also fined and ordered to pay additional fees and court costs.

Lovig appeals, seeking suppression of the evidence garnered through the officer’s search of Hopkins’ apartment. She argues that she had a legitimate expectation of privacy in Hopkins’ apartment based on evidence that she regularly visited there and occasionally spent the night when she was not staying with her boyfriend. For this reason, she asserts, probable cause and exigent circumstances must have existed in her case to justify a search. She believes these factors cannot be established because the law enforcement officers lacked probable cause to believe evidence pertaining to a crime would be located in the apartment and a sufficient exigency did not arise at any point in time.

The State resists and counters each of Lovig’s arguments. It asserts first that Lovig did not have a legitimate expectation of privacy in Hopkins’ apartment because she had an insufficient connection to the apartment for an expectation of privacy to arise. In the alternative, the State argues that officers had probable cause to believe that Lovig had committed a crime supporting them warrantless entry into the apartment. Further, the State contends that any further delay in finding and arresting Lovig could have resulted in an alteration to the evidence of her alcohol consumption, creating an exigent circumstance warranting a limited search of the apartment. The State believes that, on the whole, the search conducted in this case was reasonable and the evidence was admissible. As we explain further below, we disagree.

II. Standard of Review and Preservation of Error.

“Appellate review of claimed violations of constitutional rights under the Fourth Amendment is de novo in light of the totality of the circumstances.” State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001). In undertaking our review, we assess the entire record, including evidence presented during the suppression hearing and by way of stipulation. See State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003). While “[w]e are not bound by the district court’s determinations, ... we may give deference to its credibility findings.” State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). The adverse ruling on Lo-vig’s motion to suppress preserved error for our review. See id.

III. Foundational Principles of Search and Seizure Analysis.

“The Fourth Amendment of the United States Constitution secures the right of people to be free from unreasonable search and seizure.” Id. Accordingly, we have determined that “[t]he essential purpose of the Fourth Amendment ‘is to impose a standard of “reasonableness” upon the exercise of discretion by government officials, including law enforcement agentsf,] in order “to safeguard the privacy and security of individuals against arbitrary invasion.” ’ ” Id. at 107; accord Jones, 666 N.W.2d at 145; State v. Legg, 633 N.W.2d 763, 768 (Iowa 2001) (“The ‘central requirement’ of the Fourth Amendment is reasonableness.” (Citation omitted.)). In measuring the reasonableness of any search and seizure, we look to

[w]hether the thing done [by government officials], in the sum of its form, scope, nature, incidents and effect, impresses as being fundamentally unfair or unreasonable in the specific situation when the immediate end sought is considered against the private right affected.

Naujoks, 637 N.W.2d at 107 (citation omitted).

We have delineated a two-part test for analyzing whether particular government action was unreasonable and in violation of the Fourth Amendment. Id. at 106. We first “determine whether the person challenging the warrantless search has a legitimate expectation of privacy in the premises searched.” Id. This expectation of privacy must be shown to exist both subjectively and objectively. Id. If this expectation exists, “we proceed to the second step which requires us to determine whether the State has ‘unreasonably invaded that protected interest.’ ” Id. (quoting State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998)).

Warrantless searches and seizures are per se unreasonable and prohibited unless the State proves by a preponderance of the evidence “that officers acted reasonably under one of the recognized exceptions to the warrant requirement articulated” by the United States Supreme Court. State v. Predka, 555 N.W.2d 202, 206 (Iowa 1996) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967)); accord Legg, 633 N.W.2d at 767. “These exceptions include ‘searches based on consent, plain view, ... [probable cause coupled with] exigent circumstances[,] and searches incident to arrest.’ ” Legg, 633 N.W.2d at 767 (quoting Breuer, 577 N.W.2d at 45). The only one of these exceptions at issue in this case is “[probable cause coupled with] exigent circumstances.” Id. We now turn to an application of these various principles of search and seizure analysis to the facts of this case.

IV. Legitimate Expectation of Privacy.

The determination of “[w]hether a person has a legitimate expectation of privacy concerning a specific area is made on a case-by-case basis, considering the unique facts of each situation.” Id. In considering each case, we do not ask “ ‘whether the individual has chosen to conceal some private activity but “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” ’ ” Breuer, 577 N.W.2d at 46 (citation omitted).

Perhaps the clearest value protected by the Fourth Amendment is “ ‘physical entry of the home[,] the chief evil against which the wording of the Fourth Amendment is directed.’ ” Legg, 633 N.W.2d at 767 (citation omitted). Although each case is unique, we have previously acknowledged, “a legitimate expectation of privacy extends beyond a person’s home, to afford protection to even an overnight guest in their host’s home.” Naujoks, 637 N.W.2d at 107 (citing Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85, 95 (1990)). Of course, we have also observed “[a] guest does not have a legitimate expectation of privacy if he is on the premises merely to conduct a business transaction.” Id. (citing Minnesota v. Carter, 525 U.S. 83, 91, 119 S.Ct. 469, 474, 142 L.Ed.2d 373, 381 (1998)).

Lovig argues that she had a legitimate expectation of privacy in Hopkins’ apartment because she spent, on average, three nights a week at the apartment in addition to regular visits, kept some personal effects there, and when she stayed overnight at the apartment, slept in the bedroom in which she was found. The State counters that — at most — Lovig’s status in relation to the apartment falls somewhere in between being an overnight social guest and a transitory business guest and she is thus not entitled to the presumptive expectation of privacy accorded overnight guests. It notes that Lovig was not necessarily staying at the apartment the night of the search, gave the officers another address as her home address when arrested, and had at least three addresses to which she had some connection as a “home.” It believes Lovig’s connection to the apartment on the night of the search was limited to the apartment being merely a convenient place to hide from the officers.

While we agree with the State that the nature of Lovig’s relationship to the apartment generally falls in between the status of an overnight social guest and transitory business guest, we disagree that this factor necessarily indicates that she did not have a legitimate expectation of privacy in the apartment. Lovig was a regular guest at the apartment. In addition to keeping personal effects there and staying overnight an average of three nights a week, Lovig testified that she was frequently at the apartment to baby-sit Hopkins’ children or to socialize with her cousin and allow her child to spend time with Hopkins’ children. Each of these circumstances, conveyed through Lovig’s own testimony, indicate that she clearly had a subjective expectation of privacy in the apartment. We also believe a legitimate expectation of privacy existed from an objective standpoint. Lovig was not at the apartment to conduct a business transaction, but instead had a regular, fixed status as a social guest. Lovig’s status in relation to the apartment was such that a reasonable person would recognize that she had a legitimate expectation of privacy in the apartment.

The record is not entirely clear whether Lovig intended to be an overnight guest on the evening she was discovered in the apartment. Nevertheless, we do not believe that this factor alone is determinative of the legitimacy of her expectation of privacy. Instead, we consider all of the circumstances in the record to determine “ ‘ “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” ’ ” Breuer, 577 N.W.2d at 46 (citation omitted). When considering the circumstances in this case in light of the values protected by the Fourth Amendment, we conclude that, ultimately, Lovig’s status was closer to that of an overnight social guest than a transitory business guest and she held a legitimate expectation of privacy in the apartment.

V. Probable Cause.

We have defined probable cause to make an arrest this way:

Probable cause is not determined by observation of and reliance on any particular factor. Probable cause to make an arrest turns upon the circumstances of each case. The facts must give rise to something more than a mere suspicion, but they need not be so strong as to convince officers involved in the arrest of a suspect’s guilt. Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it.

Predka, 555 N.W.2d at 205 (quoting State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990)). In considering whether probable cause existed in this case, we remember the established principle that “the knowledge of one peace officer, acting in concert with other peace officers, is presumed to be shared with all.” Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 770 (Iowa 2002).

While Lovig contends that the law enforcement officers did not have probable cause to effectuate her arrest, we believe there are numerous facts and circumstances in this case that indicate that probable cause existed. Lovig quickly left the scene of a single-vehicle rollover accident which involved a vehicle registered in her name and which she had been driving. Prior to Lovig leaving the scene of the accident, at least one witness smelled alcohol on her breath. See State v. Niehaus, 452 N.W.2d 184, 189 (Iowa 1990) (“[I]nfor-mation imparted by a citizen informant is generally reliable.”)- Beer bottles were found in and near the vehicle. Each of these facts “ ‘viewed by a reasonable and prudent person would lead that , person to believe that a crime’ ” —OWI—had been committed and that Lovig, the driver of the vehicle, had committed it. Predka, 555 N.W.2d at 205. The officers had ample probable cause to arrest Lovig.

VI. Exigent Circumstances.

In Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), the United States Supreme Court considered a challenge to a warrantless search and seizure undertaken to arrest Welsh in his home for driving or operating a motor vehicle while under the influence of an intoxicant. Welsh’s alleged violation subjected him to a noncriminal civil forfeiture proceeding with a maximum fine of $200. Id. at 746, 104 S.Ct. at 2095, 80 L.Ed.2d at 740. In considering whether law enforcement officers’ actions in Welsh’s case were reasonable, the Court observed that “[w]hen the government’s interest is only to arrest for a minor offense, [the] presumption of unreasonableness [affixed to any warrantless home entry] is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” Id. at 750, 104 S.Ct. at 2098, 80 L.Ed.2d at 743 (footnote omitted). Thus, “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” Id. at 753, 104 S.Ct. at 2099, 80 L.Ed.2d at 745. In Welsh, the limited state interest in arresting the defendant — indicated by the state’s chosen classification for the alleged offense and its limited potential penalty. — ■ when balanced against the state’s intrusion made the warrantless entry into Welsh’s home unreasonable. See id. at 753-54, 104 S.Ct. at 2099-100, 80 L.Ed.2d at 745-46.

Although the court in Welsh emphasized that exceptions to the warrant requirement are “ ‘few in number and carefully delineated,’ ” it left it to state courts to gauge the seriousness of each jurisdiction’s OWI statutes and to use that determination in finding exigent circumstances. See id. at 749, 104 S.Ct. at 2097, 80 L.Ed.2d at 743 (citation omitted). In other words, the seriousness of the offense supporting the arrest is a factor in determining the existence of exigent circumstances, and we must consider the seriousness of an OWI offense in Iowa to determine exigent circumstances in this case.

Unlike the civil offense at issue in Welsh, first offense OWI in Iowa is classified by our legislature as a serious misdemeanor, and the offense can eventually rise to the level of a felony for subsequent convictions. Iowa Code § 321J.2(2). A serious misdemeanor OWI offense carries a maximum sentence of one year in jail and a minimum sentence of two days in jail, as well as a substantial fine. Id. § 321J.2(2)(a). Based on this legislative judgment, and the other serious consequences that can be ássociated with the offense, we think OWI is a relatively serious crime within the spectrum of prohibited acts in Iowa. It is the type of crime that can support a warrantless entry into a home if probable cause and exigent circumstances are present. See Threatt v. State, 240 Ga.App. 592, 524 S.E.2d 276, 280 (1999). Thus, we turn to further consider whether the State, in light of other factors and 'circumstances, has demonstrated exigent circumstances to overcome the presumption of unreasonableness attached to the warrantless entry into the apartment.

The State claims exigent circumstances exist in this case based on the destruction of evidence. The destruction of evidence is an acknowledged exigent circumstance to justify a warrantless entry. Moreover, we have previously recognized two ways by which the collection of evidence of an alcohol-related offense can be altered or destroyed by a delay in making an arrest. See Legg, 633 N.W.2d at 772. First, a suspect could ingest more alcohol, skewing the alcohol content higher and corrupting any evidence of prior consumption. Id. Second, the blood alcohol level naturally dissipates during a delay. Id. Thus, the State claims that, considering the seriousness of the offense, the destruction of evidence resulting from a delay in obtaining a warrant justified the warrant-less entry into the apartment.

We observe a split of authority in those jurisdictions that have had an opportunity to consider the issue of a warrantless entry into a home to arrest an OWI suspect following the Supreme Court decision in Welsh. Compare State v. Paul, 548 N.W.2d 260, 265-68 (Minn.1996); City of Kirksville v. Guffey, 740 S.W.2d 227, 228-29 (Mo.Ct.App.1987); People v. Odenweller, 137 A.D.2d 15, 527 N.Y.S.2d 127, 129-30 (1988); Stark v. N.Y. State Dep’t of Motor Vehicles, 104 A.D.2d 194, 483 N.Y.S.2d 824, 826-27 (1984); City of Orem v. Henrie, 868 P.2d 1384, 1388-94 (Utah Ct.App.1994); State v. Komoto, 40 Wash.App. 200, 697 P.2d 1025, 1032-33 (1985); Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465, 468-70 (1987) with Patzner v. Burkett, 779 F.2d 1363, 1367-69 (8th Cir. 1985); Norris v. State, 338 Ark. 397, 993 S.W.2d 918, 920-24 (1999); State v. Bolte, 115 N.J. 579, 560 A.2d 644, 653-55 (1989); City of Elyria v. Tress, 73 Ohio App.3d 5, 595 N.E.2d 1031, 1034 (9 Dist.1991); State v. Flegel, 485 N.W.2d 210, 214-15 (S.D.1992). Yet, while it appears the majority of these jurisdictions have found an entry to be permissible, we observe that most of these cases included the presence of other factors, most notably hot pursuit by police. See Paul, 548 N.W.2d at 265-68; City of Kirksville, 740 S.W.2d at 228-29; Odenweller, 527 N.Y.S.2d at 129-30; Stark, 483 N.Y.S.2d at 826-27; City of Orem, 868 P.2d at 1391-94; Komoto, 697 P.2d at 1032-33; Bennett, 361 S.E.2d at 468-70. In fact, the presence of hot pursuit is often a driving force in the analysis.

We think the absence of hot pursuit in this case requires us to carefully examine the claim of destruction of evidence. In doing so, we first observe that a defendant is permitted to refuse a chemical test. See Iowa Code § 321J.9 (refusal to submit to chemical testing). Thus, the claim of destruction of evidence in the context of blood alcohol content testing may be illusory. See id. But see id. § 321J.10 (tests may still be made pursuant to a search warrant); Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 919-20 (1966) (warrantless blood test for alcohol content reasonable where delay would have led to loss of evidence). Additionally, unlike hot pursuit, the time lapse achieved by a suspect who successfully reaches the comforts of home without police in hot pursuit necessarily provides a suspect with two of the three means of destruction that would still exist even if a warrantless entry was made once police arrived. Furthermore, the natural dissipation of the blood alcohol level of a person is an aspect of most every OWI case, and cannot be properly assessed without some reference to the time frame in which a chemical test can be administered. Thus, the actual time to obtain a warrant becomes the important factor. If the time is relatively short, fear over too much dissipation will be alleviated. Furthermore, just as an expert can provide testimony at trial to explain the degree blood alcohol levels decline over time, the same expert can use any blood alcohol level finally obtained after the execution of a warrant to extrapolate back to arrive at a blood alcohol level earlier in time. All these factors suggest that the destruction of evidence claim may not be compelling in all OWI cases. “[Sjpecific, articulable grounds [must exist] to justify a finding of exigency.” Naujoks, 637 N.W.2d at 109; see also Barbara C. Salken, Balancing Exigency and Privacy in Warrantless Searches to Prevent Destruction of Evidence: The Need for a Rule, 39 Hastings L.J. 283, 303 (1988) (discussing the fact-based exigency analysis deployed by some federal courts of appeals).

In this case, there was evidence that Lovig had been in the apartment for a period of time before police arrived. Moreover, there was no evidence concerning any efforts by police to seek a warrant or to determine the amount of time it would take to secure a warrant. Additionally, there was no evidence that police suspected Lovig was engaged in any purposeful activity within the apartment that would destroy the integrity of any future chemical tests.

Considering all of the circumstances, we find they did not support a warrantless entry into the apartment. Although the crime of OWI is a comparatively serious matter, we are unable to find exigent circumstances under the record in this case. Exigent circumstances did not exist merely because Lovig’s “blood-alcohol level might have dissipated while the police obtained a warrant.” Norris, 993 S.W.2d at 924.

VII. Conclusion.

We reverse the decision of the district court.

REVERSED AND REMANDED.

All justices concur except WIGGINS, J., who takes no part.

      . Article one, section eight of the Iowa Constitution also protects against unreasonable search and seizure. State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003); State v. Legg, 633 N.W.2d 763, 765 n. 1 (Iowa 2001). In fact, Iowa’s constitutional provision tracks closely with the Fourth Amendment and we have often interpreted both in a similar fashion. See Jones, 666 N.W.2d at 145; Legg, 633 N.W.2d at 765 n. 1; State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). Such an interpretation is unnecessary in this case, however, because Lovig makes no claim that her constitutional rights under the Iowa Constitution have been violated.

      . We also recognize a delay could also provide a suspect with an opportunity to simply assert a claim of additional alcohol consumption even if more alcohol was not consumed, throwing any evidence of prior consumption into doubt.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Dennis G. DOUGLAS, Appellant.
    No. 03-0154.
    Supreme Court of Iowa.
    Feb. 25, 2004.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Michael L. Wolf, County Attorney, and Gary P. Strausser, Assistant County Attorney, for appellee.
   TERNUS, Justice.

It has long been the law in Iowa that one may not be convicted on the testimony of an accomplice alone. See Iowa R.Crim. P. 2.21(3); State v. Brandt, 242 Iowa 382, 388, 44 N.W.2d 690, 693 (1950).. A similar rule exists with respect to a defendant’s confession: “a confession standing alone will not warrant a criminal conviction unless other proof shows the defendant committed the crime.” State v. Polly, 657 N.W.2d 462, 466 (Iowa 2003); accord Iowa R.Crim. P. 2.21(4) (stating defendant’s uncorroborated confession will not support a conviction “unless made in open court”). Thus, when the prosecution relies on either type of proof, corroborating evidence independently linking the defendant to the offense is required. Polly, 657 N.W.2d at 466 (defendant’s confession); State v. Ware, 338 N.W.2d 707, 710 (Iowa 1983) (accomplice testimony). It is this corroboration requirement that lies at the heart of the appeal before us.

The defendant, Dennis Douglas, was convicted of conspiracy to manufacture methamphetamine based primarily on the testimony of an accomplice, the testimony of an alleged accomplice, and the defendant’s out-of-court confession. He contends on appeal the trial court improperly allowed the jury to determine whether one of the State’s witnesses, Shelley Douglas, was an accomplice, rather than instructing the jury that she was an accomplice as a matter of law. In addition, Douglas argues the trial court erroneously instructed the jury that his confession could be used to corroborate the testimony of Jason Carpenter, an undisputed accomplice, and that Carpenter’s testimony could be used to corroborate the defendant’s confession.

The State disputes any trial court error. It also maintains that if the court erred in submitting the question of Shelley’s accomplice status to the jury, such error did not result in prejudice. This latter argument rests on the State’s position that we should abandon our long-standing rule that “one accomplice cannot be a witness to corroborate the testimony of another accomplice in the same crime.” Johnson v. State, 4 Greene 65, 65 (Iowa 1853); accord State v. Graham, 291 N.W.2d 345, 349 (Iowa 1980). In the absence of this rule, claims the State, Shelley’s status as an accomplice becomes irrelevant because she could corroborate Carpenter’s testimony even if she were an accomplice.

We have carefully considered the matters raised by the defendant and find no error. Accordingly, we affirm his conviction and sentence for conspiracy to manufacture methamphetamine.

I. Background Facts and Proceedings.

Douglas, Shelley (his estranged wife), Carpenter, and Nathan Franzen spent the evening of April 21, 2002, drinking and using methamphetamine at the home of Shaun Burridge. At some point, the group decided to go to Shelley’s house to make more methamphetamine using some materials Burridge had available from a prior batch. Once at Shelley’s house, they worked through the night and by morning had produced enough methamphetamine to divide among them.

Later in the morning of April 22, Carpenter and Franzen were stopped for speeding. The officer’s search of their vehicle revealed drug paraphernalia and methamphetamine. Carpenter’s subsequent confession led the authorities to Douglas, who also gave the police a full statement of his involvement in the manufacturing episode.

Douglas and Carpenter were charged with conspiracy to manufacture methamphetamine in violation .of Iowa Code section 124.401(l)(c )(6) (2001). Carpenter pled guilty to this charge, but Douglas entered a not-guilty plea. Shelley pled guilty to a lesser offense: “gathering people to manufacture a controlled substance.” Iowa Code § 124.407. Both Carpenter and Shelley agreed to testify in Douglas’s case, which was subsequently tried to a jury.

At Douglas’s trial, a police officer testified to the admissions made by the defendant concerning his active participation in the manufacturing of methamphetamine on April 21-22. Carpenter and Shelley also testified. Carpenter’s testimony confirmed Douglas’s out-of-court statements that Douglas had joined in manufacturing methamphetamine at Shelley’s house.

Carpenter’s testimony was somewhat inconsistent, however, with respect to the extent of Shelley’s involvement. Although he testified she did not participate in the decision to leave the Burridge residence and travel to her house to make methamphetamine, Carpenter said Shelley was going to be involved in the manufacturing process. He testified the group started the manufacturing operation in the kitchen of Shelley’s home. Shelley sat at the kitchen table and watched until she went to her bedroom to change clothes. While she was gone, the men moved the operation to the basement. Carpenter testified Shelley came downstairs twice, for about five minutes each time. He said she was “really intoxicated” and acted confused. She sat on a bench and talked to Carpenter. She did not ask them to stop what they were doing, nor did she ask them to leave. Later, when they were finished, Shelley joined in smoking some of the product. Carpenter said she received a share in exchange for the use of her residence.

In Shelley’s testimony, she acknowledged she was at Burridge’s home on April 21. She said she drank heavily and subsequently blacked out. She awoke in the middle of the night and discovered she was in her own home. Shelley testified she recalls hearing people in the basement and smelling something. She went downstairs but was there only a few minutes because Douglas told her to go back upstairs. She did not know what the men were doing. Later she returned out of curiosity and then realized they were making drugs. She denied she gave anyone permission to use her home to manufacture methamphetamine. Shelley admitted she smoked some of the methamphetamine made that night, but denied receiving a share.

The defendant argued at trial that Shelley and Carpenter were accomplices as a matter of law. Although the trial court instructed the jury that Carpenter was an accomplice, it submitted the question of Shelley’s status as an accomplice to the jury. The court told the jury that the defendant could not be convicted on accomplice testimony alone. Over the defendant’s objection, however, the court instructed the jury that “[t]he corroboration of accomplice(s) may come from the defendant himself in the way of an admission, confession, or other evidence.” Similarly, the court gave the jury an instruction that informed them Douglas could not “be convicted by a confession alone,” but that corroboration “may come from an accomplice.” The jury found the defendant guilty.

Douglas now appeals to this court, claiming the trial court erred in failing to instruct the jury that Shelley was an accomplice and in permitting the jury to use accomplice testimony and the defendant’s confession to corroborate one another. While the defendant also claims the evidence was insufficient to support his conviction, this argument rests on his assertion that the only incriminating evidence came from the uncorroborated testimony of two accomplices and the defendant’s uncorroborated confession. Dquglas apparently concedes that if the trial court was right concerning the prevailing law on corroboration, the evidence is sufficient to sustain his conviction. Thus, this appeal turns on whether the trial court accurately applied the law governing corroboration of accomplice testimony and defendants’ confessions. We review for correction of errors of law. See State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997).

II. Was Shelley an Accomplice as a Matter of Law?

An accomplice is a person who “ ‘could be charged with and convicted of the specific offense for which an accused is on trial.’ ” State v. Berney, 378 N.W.2d 915, 917 (Iowa 1985) (citation omitted). Thus, proof that the person had knowledge that a crime was planned or proof that the person was present when the crime was committed is insufficient standing alone to make the person an accomplice. Id. It must be established by a preponderance of the evidence that the person was involved in some way in the commission of the crime. Id.

When the facts and circumstances are undisputed and permit only one inference, whether a witness is an accomplice is a question of law for the court. State v. Harris, 589 N.W.2d 239, 241 (Iowa 1999). If the facts are disputed, however, or give rise to different inferences, the question is for the jury. Id.

Here, the facts and circumstances are disputed and different inferences could be drawn from the evidence with respect to Shelley’s involvement in the conspiracy to manufacture methamphetamine. One element of this crime is that the accused agreed with one or more persons that one or more of them would manufacture or attempt to manufacture methamphetamine. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001). In addition, the accused must make this agreement “with the intent to promote or facilitate the manufacture of methamphetamine.” Id. Although the defendant argues the evidence established that Shelley was an accomplice, the testimony of Carpenter and Shelley would also support a finding that Shelley did not participate in the decision to manufacture methamphetamine and was so intoxicated that she was unaware of what her visitors were doing until the manufacturing process was well underway. See Stanley v. United States, 245 F.2d 427, 430 (6th Cir.1957) (“It is well established that one who has no knowledge of the object of a conspiracy cannot be a conspirator, for the intent to participate is lacking.”).

In view of the contrary inferences that could be drawn from the evidence, it was for' the jury to choose which inferences were warranted under the testimony given at trial. Berney, 378 N.W.2d at 917. Therefore, the court did not err in instructing the jury to decide whether Shelley was an accomplice. See Harris, 589 N.W.2d at 241-42 (holding court properly refused to instruct that witnesses were accomplices where the criminality of the witnesses could not be determined as a matter of law); Berney, 378 N.W.2d at 918 (same).

III. Can the Defendant’s Confession and the Accomplice’s Testimony Corroborate Each Other?

As noted above, confessions or admissions by a defendant and accomplice testimony require corroboration. This requirement arises, in part, from concerns about the trustworthiness of such evidence. Accomplice testimony is suspect by virtue of an accomplice’s self-interest in focusing blame on another person. Ware, 338 N.W.2d at 710. The requirement of corroborating evidence for a defendant’s confession is intended to reduce the incidence of convictions based on false confessions. Polly, 657 N.W.2d at 466. By encouraging the development of more reliable evidence through competent investigation and discouraging dependence on possibly coercive and untrue confessions, this requirement also promotes the use of more desirable investigatory techniques by police. Id.

With these purposes in mind, we consider the defendant’s contention that two items of evidence, both legally insufficient to independently support a conviction, should not be adequate in combination to convict an accused. While this argument has superficial appeal, under closer examination, it is unpersuasive.

We first note that we have held in prior decisions that a defendant’s out-of-court confessions and admissions may corroborate the testimony of an accomplice. See State v. Bizzett, 212 N.W.2d 466, 468 (Iowa 1973) (stating “the defendant himself may furnish the required corroboration of accomplice testimony”); Brandt, 242 Iowa at 388, 44 N.W.2d at 693 (holding defendant’s “statement or confession” in which he admitted his presence at the crime scene was “sufficient corroboration of the testimony of accomplices”); State v. Morrison, 221 Iowa 3, 7, 265 N.W. 355, 357 (1936) (holding defendant’s admissions to deputy sheriff provided satisfactory corroboration of accomplice); accord State v. Jones, 511 N.W.2d 400, 405 (Iowa Ct.App.1993) (“A defendant’s admissions may be considered corroboration.”). Although we did not explain our rationale for allowing cross corroboration in these cases, we think our decisions withstand the present scrutiny.

The potential weakness in accomplice testimony is that an accomplice might lie to divert attention from or minimize his own culpability. Common sense suggests that this tendency is only exacerbated if multiple accomplices point the finger at the same defendant, because one accomplice may be emboldened to accuse the defendant, knowing another accomplice has already done so. Thus, it is not particularly reassuring that two accomplices testify to the defendant’s commission of an offense. Hence, the rule that the testimony of one accomplice may not corroborate the testimony of another accomplice has developed.

Confessions by defendants do not suffer from the same concern. A false confession by the defendant might result, for example, from coercion, a desire to protect another, or mental illness. But unlike accomplices who might be motivated to give a common fabricated account of the crime, implicating the defendant for their mutual benefit, a defendant and an accomplice would not share a unified goal of blaming the defendant. Therefore, we do not perceive a similar danger of wrongful conviction when an accomplice’s testimony is corroborated by the defendant’s confession as compared to the risk of an erroneous conviction when two accomplices corroborate each other. For this reason, we reaffirm the legal principles applied in our prior cases and hold that the testimony of an accomplice and the confession of a defendant constitute acceptable corroboration, one for the other.

IV. Summary.

We conclude the trial court properly determined there was a factual issue as to whether Shelley Douglas was an accomplice. Therefore, the court did not err in submitting this issue to the jury. In addition, the court properly instructed the jury that although the testimony of an accomplice could not corroborate the testimony of another accomplice, accomplice testimony could corroborate the defendant’s confession and, similarly, the defendant’s confession could serve as corroboration of the accomplice’s account of the crime. Finding no merit in the issues raised by Douglas on appeal, we affirm his conviction.

AFFIRMED.

      . Although there is a distinction between confessions and admissions, see State v. Capper, 539 N.W.2d 361, 364 (Iowa 1995), overruled on other grounds by State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000), a defendant's " 'admissions of essential facts or elements of the crime, subsequent to the crime,' ” must be corroborated just like a defendant's confession, Polly, 657 N.W.2d at 466 n. 1 (citation omitted).

      . For the reasons discussed, we decline the State's request to overrule our. prior decisions holding that one accomplice may not corroborate the testimony of another accomplice. The concerns identified here call for continued adherence to this prohibition.