author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Chad Alexander PRIOR, Appellant.
    No. 99-828.
    Supreme Court of Iowa.
    Sept. 7, 2000.
    Rehearing Denied Oct. 10, 2000.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Denver D. Dillard, County Attorney, and Brian D. Claney, Assistant County Attorney, for appellee.
   CADY, Justice.

Chad Prior appeals his conviction and sentence for possession of a controlled substance in violation of Iowa Code section 124.401(5) (1997). He argues the district court erred in overruling his motion to suppress the marijuana seized from his person pursuant to an “all persons” search warrant. We reverse and remand.

I. Background Facts and Proceedings.

On August 31, 1998, a police officer from the Cedar Rapids Narcotics Bureau received an anonymous telephone call alerting him to the possibility of illegal drugs being sold from an apartment on the northeast side of Cedar Rapids. The caller suspected drugs were being sold from the upper level apartment at 514 16th Street NE. The caller suspected this based largely upon the unusual traffic pattern of visitors to the apartment. On numerous occasions, the caller had observed several people enter the apartment. These people would usually arrive by vehicle, park the vehicle a short distance from the apartment, and approach the apartment on foot. The caller said a male in his mid-twenties lived in the apartment.

The officer who received the tip believed the type of activity described by the caller was indicative of drug dealing. The officer investigated the call by removing a bag of trash left outside the apartment on the day designated for trash pick up in that area of the city. The subsequent search of the trash bag at the police station revealed seven plant stems and numerous sandwich-size baggies. A chemical test confirmed the stems were marijuana. A discarded piece of mail addressed to “A. Langston” at “514 16th Street NE, upper apartment” was also found among the garbage. Police records indicated an individual named Aaron Langston, with the address of 514 16th Street NE, had been arrested in March 1998.

On September 24, 1998, the officer made an application to search the upper level apartment. The officer disclosed the information he obtained from the unnamed informant and his investigation in an affidavit. The officer also provided additional information based on his experience as a narcotics investigator. He opined that people “who use or sell controlled substance[s] will often discard ... marijuana stems and plastic baggies.” The officer further stated that drugs are commonly hidden or held on a person or a vehicle, and that persons who “use, sell or distribute controlled substances out of [their] dwelling or vehicle” have no legal ties to the dwelling or vehicle but “only use ... such places ... to use or sell controlled substances.”

Based on the information in the application and affidavit for search warrant, a magistrate issued a warrant on September 24, 1998. The warrant authorized officers to search the upper level apartment, “all persons located in the upper apartment,” and any vehicles of those who resided in the apartment for controlled substances, drug-related items, and weapons.

Police executed the warrant on October 1,1998. Force was used to gain entry into the apartment after police received no response from knocking on the door. After police entered the apartment, they determined no persons were present. They then began to execute the warrant. While the warrant was being executed, a group of seven men, including Prior and Lang-ston, entered the apartment. Relying upon the “all persons” provision in the warrant, police detained and searched each individual. They discovered marijuana hidden in Prior’s sock. Prior was subsequently arrested and charged with possession of marijuana in violation of Iowa Code section 124.401(5).

Prior moved to suppress the evidence as the fruits of an illegal search. He argued the warrant was an unconstitutional “blanket or general search warrant” in violation of the Fourth Amendment to the United States Constitution and article one, section eight of the Iowa Constitution.

The district court found no probable cause to search Prior. However, it overruled the motion based upon the officers’ good faith reliance upon the validity of the search warrant.

Prior waived his right to a jury trial and agreed to a trial to the court based on the minutes of testimony. The court found Prior guilty as charged and fined him $250, plus court costs and attorney fees. He was also ordered to receive a substance abuse evaluation. Prior appeals his conviction and sentence based upon the district court’s denial of his motion to suppress.

II. Scope of Review.

Prior challenges the district court’s denial of his motion to suppress based on the unreasonableness of the search. “We review this constitutional question de novo in light of the totality of the circumstances.” See State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999) (citing State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996)).

III. “All Persons” Search Warrants.

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV. The Iowa Constitution has a nearly identical provision found in article I, section 8. Iowa Const, art. I, § 8. Consequently, we consider the two provisions nearly identical “in scope, import, and purpose.” State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986) (quoting State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982)).

One important command of the Fourth Amendment which lies at the core of the issue in this case is the warrant that is issued must describe the place or person to be searched with particularity. This important limitation guards the right of privacy from arbitrary police intrusion. State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995). It helps minimize the risk that the officers executing the search warrant will mistakenly search an area or person not intended by the issuing magistrate. See 2 Wayne R. LaFave, Search and Seizure § 4.5, at 513 (1996) [hereinafter LaFave]. The officer must be able to reasonably ascertain and identify the place or person to be searched so that nothing is left to the discretion of the executing officer. Thomas, 540 N.W.2d at 662. Additionally, the particularity requirement can relate to the probable cause requirement in many circumstances. 2 LaFave § 4.5, at 513. The lack of a specific description may indicate an insufficient showing that the items described will be found. Thus, both the probable cause and the particularity requirements are implicated by warrants that are too general.

A search warrant is typically directed at a particular location or thing to be searched. However, it can also authorize the search of both a place and persons. See 2 id. § 4.5(e), at 542-45. When this is done, the particularity requirement separately applies to the place to be searched and to each person to be searched. See State v. Gogg, 561 N.W.2d 360, 368 (Iowa 1997); 2 LaFave § 4.5(e), at 545. In this case, the warrant not only targeted the apartment unit and any vehicles of the residents of the apartment, but “all persons located in” the apartment.

Although general warrants are impermissible under the Fourth Amendment, we have previously indicated that an “all persons present” warrant is not per se unreasonable. Thomas, 540 N.W.2d at 664-66 (noting the court was not condemning an “all persons” warrant across the board). When issued in connection with drug trafficking at a specific location, “all persons” warrants must be viewed differently from the general exploratory warrants condemned in the past. State v. Kinney, 83 Ohio St.3d 85, 698 N.E.2d 49, 58 (1998). Illegal drug trafficking is a catastrophic problem in this country and individuals present in a residence used by drug traffickers raise serious concerns for police. Id. A drug house often has numerous people present, many who may be armed and dangerous. Obvious concerns for the safety of all individuals on the premises exist, which helps distinguish an “all persons” warrant from a general exploratory search. Id. Yet, despite these legitimate concerns, the Fourth Amendment requires an “all persons” warrant to be supported by facts showing a “substantial probability that the authorized invasions of privacy will be justified by the discovery of the items sought from all persons present when the warrant is executed.” Thomas, 540 N.W.2d at 664 (quoting People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26, 34 (1975)). Thus, the particular facts of each case must be examined to determine the sufficiency of a warrant to search persons identified in the warrant by their presence at a particular place.

In State v. Gogg, we held the affidavit for an “all persons” warrant was insufficient to justify the search of three unnamed people present in the residence to be searched. Gogg, 561 N.W.2d at 368. The affidavit in question failed to mention the anticipated presence of anyone other than the two named in the warrant, nor specified why any third parties, if present, would be likely to have evidence of a crime on their person. Id. We recognized the reasonableness of the issuing judge’s inference of illegal drug sales at the residence, but noted there were “no statements [in the affidavit] that give rise to an inference that all persons on the premises would necessarily be involved in this activity.” Id.

In State v. Thomas, we held a warrant for the search of all persons located at a particular drinking establishment known as a “focal point” of drug activity was unsupported by sufficient facts in light of the legitimate and public nature of the bar. Thomas, 540 N.W.2d at 665. There were no facts showing the bar to be an “illegal after hours drinking house.” Id. Instead, it was a business where completely innocent, unsuspecting people could enter to make a legitimate purchase of legal merchandise. Id. at 665-66.

In State v. Jamison, 482 N.W.2d 409 (Iowa 1992), we held a search of an unnamed and previously unidentified visitor’s car after leaving the residence to be searched was unsupported by the affidavit. Jamison, 482 N.W.2d at 413. The warrant was based upon police surveillance of a residence suspected of illegal drug activity, a controlled purchase of cocaine from the individual listed on the warrant, and information from a confidential informant. Id. at 410-11. At no time prior to the execution of the warrant was the defendant or his vehicle seen at the premises, nor linked to the suspected drug dealer. Id. at 413. The warrant authorized the search of “the person and vehicles of any other subjects at the residence after the signing of the search warrant.” Id. at 411. We found “a complete absence of probable cause” authorizing the search of Jamison’s person or automobile. Id. at 413.

Our cases reveal the difficulty with “all persons present” warrants is not the lack of particularity to guide the executing officer to locate those covered under the warrant, but the particularity of the warrant in the sense of probable cause regarding whether all persons in the particular place to be searched are involved in criminal activity in such a manner that they will possess the evidence to be seized. See Gogg, 561 N.W.2d at 368; 2 LaFave § 4.5(e), at 546-47. There must be evidence “that give[s] rise to an inference that all persons on the premises would necessarily be involved in th[e] [illegal] activity.” Gogg, 561 N.W.2d at 368. Thus, “all persons” warrants meet the particularity and probable cause requirements of the Fourth Amendment only in limited circumstances where there is “probable cause to believe that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the articles sought.” Nieves, 369 N.Y.S.2d 50, 330 N.E.2d at 34.

In Thomas, we identified several criteria to help determine the validity of an “all persons” warrant. Thomas, 540 N.W.2d at 664. In adopting the factors established in Nieves, 369 N.Y.S.2d 50, 330 N.E.2d at 34, we said:

Under the Nieves standards, the application must set out the character of the premises, including its location, size, and public or private character; the nature of the illegal conduct at issue; the number and behavior of persons expected to be present when the warrant is to be executed; whether any persons unconnected with the alleged illegal activity have been seen on the premises; and the precise area and time in which the alleged activity is to take place.

Thomas, 540 N.W.2d at 664.

We also emphasized the need to consider the necessity for the particular search, the nature of the suspected crime, and the difficulty of being more specific in the description. Id. (noting the Nieves court’s emphasis on these three factors). These same factors have been adopted by other state courts as the basis for supporting “all persons” warrants. See Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, 107 (1976); Kinney, 698 N.E.2d at 56. One commentator summarized it this way:

The more public a place, the less likely a search of all persons will be sustained. The warrant must carefully describe the character of the premises and the nature of the illegal activity going on; also, the magistrate must be told how many people frequent the place, when they come and leave, and what they appear to be doing. Another important factor is whether anyone who seems to have no connection with the illegal conduct is ever seen there. If such a showing is not made, the warrant will be struck down.

I William E. Ringel, Searches & Seizures, Arrests and Confessions § 5.6(e), at 5-48 (2d ed.1999) (citing Wilson v. State, 136 Ga.App. 70, 221 S.E.2d 62 (1975), and Nieves, 369 N.Y.S.2d 50, 330 N.E.2d at 26).

Although some jurisdictions find “all persons” warrants to be unconstitutional, most jurisdictions, like Iowa, draw on the particular facts and circumstances to determine the validity of such warrants. See Betts v. State, 920 P.2d 763, 764-66 (Alaska Ct.App.1996) (application included surveillance, controlled buys, numerous tips, and a complaint from one hour earlier of drug transactions); People v. Johnson, 805 P.2d 1156, 1161 (Colo.Ct.App.1990) (premises were source of major drug traffic, in a tightly controlled access apartment which was heavily guarded); State v. Range, 642 So.2d 1318, 1322 (La.Ct.App.1994) (“Common sense suggests that there is a much greater likelihood that a person found in a small private residence containing drugs will be involved in the drug activity occurring there than an individual who happens to be in a public tavern where the bartender is suspected of possessing drugs. Police officers are not blind to these realities and [courts] should not encourage them to be.”) (quoting United States v. Reid, 997 F.2d 1576, 1578-79 (D.C.Cir.1993)); State v. Allard, 674 A.2d 921, 922 (Me.1996) (affidavit for warrant included laundry list of facts supporting finding that premises used primarily for drug transactions); Smith, 348 N.E.2d at 106 (confidential informant saw drug transactions firsthand, police surveillance revealed known drug players were active in premises); State v. Hinkel, 365 N.W.2d 774, 776 (Minn.1985) (search of “afterhours joint” valid as it was “unreasonable to expect the officers to name in the warrant the people to be searched in such a place because customers could vary from day to day” and those there would only be there for one reason); State in re L.Q., 236 N.J.Super. 464, 566 A.2d 223, 226-27 (App.Div.1989) (“the description of the activity actually observed provided a firm foundation for the suspicion or belief that any person in the private premises was involved in the overt unlawful activity,” also “the premises involved, a basement apartment, were private and, therefore, less likely to contain innocent bystanders”) (quoting People v. Betts, 90 A.D.2d 641, 456 N.Y.S.2d 278, 279 (N.Y.App.Div.1982)); State v. De Simone, 60 N.J. 319, 288 A.2d 849, 851 (1972) (search of automobile passenger upheld as “presence in an automobile is more apt to suggest complicity in the illegal use to which the car is then being put”); Kinney, 698 N.E.2d at 55-56 (small, private nature of premises, pattern of traffic for short periods of time at all hours, controlled buys, and low possibility of innocent bystanders); Commonwealth v. Graciani, 381 Pa.Super. 626, 554 A.2d 560, 562 (1989) (confidential informant’s tips which had proven to be reliable in past sufficient); State v. Covington, 904 P.2d 209, 213 (Utah Ct.App.1995) (affidavit supported finding of likelihood that all persons present in apartment were dealing drugs, sufficient nexus established, search of unnamed defendant upheld); see also Angela S. Ov-ergaard, Comment, People, Places, and Fourth Amendment Protection: The Application of Ybarra v. Illinois to Searches of People Present During the Execution of Search Warrants on Private Premises, 25 Loy. U. Chi. L.J. 243, 267-68 (1994). A review of these cases confirms that the pivotal inquiry is whether the facts and circumstances as revealed in the application for the search warrant demonstrate probable cause that each person on the premises to be searched will possess, at the time of the search, the evidence sought under the warrant. Kinney, 698 N.E.2d at 54.

We begin our consideration of the affidavit and application for search warrant in this case with the nature of the premises. Although a private residence, the apartment did not possess signs that it was used exclusively or even primarily as a drug house. The typical traffic pattern of visitors to the apartment and a search of the trash from the apartment supported probable cause that illegal drug transactions occurred in the apartment. Yet, there was no evidence to further suggest all persons in the apartment were involved in the transactions. The affidavit indicated the apartment was located in a residential neighborhood and was used by Aaron Langston as his residence. The traffic pattern identified by the neighbor informant implied it was not the exclusive means for visitors to approach the apartment. The observations of the informant were confined to “numerous” occasions and “most” of the visitors. This necessarily implied there were other occasions when people would approach the apartment in a manner not indicative of drug transactions. Police did not investigate or conduct surveillance to determine if all persons who went to the apartment were involved in drug transactions, or the amount of time visitors would spend in the apartment, or the time of day of the suspicious activity.

The officer’s attempt to transform the apartment into a drug house through his opinion was contradicted by other information. The apartment was identified as a residence and the trash revealed mail was delivered at the apartment. Thus, contrary to the premise of the officer’s opinion, the apartment was not a place in which no person maintained a legal connection. We agree with the line of cases which recognize the likelihood of innocent persons being present in a residence, regardless of the existence of illegal activity on the premises. See State v. Wynne, 552 N.W.2d 218, 221 (Minn.1996) (“relatives, guests or hired workpeople could have been present on the -residential premises to be searched”); State v. Anderson, 415 N.W.2d 57, 61 (Minn.Ct.App.1987) (“salesmen, mailmen, repairmen, friends” and family are likely to be present in a residential neighborhood); State v. Reid, 319 Or. 65, 872 P.2d 416, 419 (1994) (“The affidavit described a residence. Persons who might reasonably be expected to be found approaching the front door of a residence include a uniformed mail carrier or package delivery person, a volunteer soliciting donations for charitable purposes, or a neighbor seeking to borrow a cup of sugar.... ”). This is particularly true during daylight hours. Kinney, 698 N.E.2d at 56. In this case, there was no indication of the time of day police executed the warrant.

We acknowledge the private nature of the apartment in this case is a factor to support the issuance of an “all persons” warrant. This is because it is generally more likely that persons with no connection to criminal activity would be in a public place where criminal activity has been observed, as opposed to a private place. Nevertheless, a private place used as a residence also makes it likely that persons with no connection to criminal activity may be present. Furthermore, there was no evidence of the size of the apartment or whether other persons may have resided in the apartment.

To support an “all persons present” warrant, the police must present the magistrate with facts sufficient to permit a finding that the purpose of the residence was for the promotion of the criminal activity such that any person present is likely to be involved or to have evidence on their person. In order to fulfill this tall task, we reiterate our support for the factors identified by the Nieves court, and previously adopted by us in Thomas. Additionally, the warrant must be narrowly tailored to the facts which create the probable cause to search. The affidavit in this case did not fulfill these requirements, and therefore did not demonstrate probable cause to believe all persons present would likely be associated with the criminal activity. As a result, the portion of the warrant authorizing the search of “all persons” lacked the specificity required under our state and federal constitutions.

We reiterate that “all persons” warrants are not per se unconstitutional. However, the individual liberty and privacy interests protected under our state and federal constitutions demand they be issued only under constrained circumstances, based on the standard and factors articulated in this opinion. This standard protects individual rights, while recognizing the interests of law enforcement. It does not mean, however, that police must know with certainty that all persons in the premises will possess evidence of criminal activity at the time of the search. It also does not mean that innocent people will never be caught in the middle of an “all persons” search. The Fourth Amendment only protects people “against unreasonable search and seizure.” State v. Hagen, 258 Iowa 196, 137 N.W.2d 895, 899 (1965). Moreover, probable cause does not require absolute certainty, but a probable determination through the eye of a reasonably prudent person. See State v. Seager, 341 N.W.2d 420, 426-27 (Iowa 1983). Thus, we adhere to our practical common sense approach to the determination of probable cause, and rely upon the factors identified in this opinion to guide us in this determination.

IV. Good Faith Exception.

In State v. Cline, filed contemporaneously with this opinion, we rejected the good faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Cline, 617 N.W.2d 277, 284 (Iowa 2000). Although Cline dealt with a search pursuant to statute, the rationale for rejecting the good faith exception under our state constitution applies with equal force to searches pursuant to a warrant. Id. Regardless of the good faith of police in relying upon a search warrant approved and issued by a judicial officer, the exclusionary rule remains the best way to protect the integrity of the judicial process and an individual’s right under our state constitution to be free from government conduct ultimately determined to be unlawful Accordingly, even if the search of Prior was conducted by officers within the framework of the good faith doctrine recognized in Leon, the exclusionary rule nevertheless applies to Prior’s claim under our state constitution. We therefore reverse the district court and remand the case for further proceedings.

V. Conclusion.

We conclude there was no probable cause for the issuance of an “all persons” warrant under the Fourth Amendment to the federal constitution and article I, section 8 of our state constitution. We also conclude the evidence seized from Prior as a result of the search must be excluded from trial based on our conclusion that the search violated our state constitution. We reverse and remand for further proceedings.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. George R. REMER, Respondent.
    No. 00-0066.
    Supreme Court of Iowa.
    Sept. 7, 2000.
    Dee Ann Wunschel of Wunschel Law Firm, P.C., Carroll, for respondent, and George R. Remer, Battle Creek, pro se.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
   TERNUS, Justice.

This matter comes before the court for a de novo review of the findings of fact, conclusions of law, and recommendations of the Grievance Commission of the Iowa Supreme Court. See Ct. R. 118.10. Because we conclude that the Commission erred in admitting into evidence two district court rulings in a related civil case, we vacate the Commission’s report and remand this matter to the Commission for a new hearing.

I. Procedural Background.

The respondent, George Remer, acted as the guardian and conservator of his aunt, Bessie Jordan, for many years prior to her death in 1992. In 1996, the administrator of Jordan’s estate filed a petition in the conservatorship against Remer and Garden Farms, Inc., a corporation owned by Remer’s wife, Carol. The administrators sought various forms of relief based, in part, on Remer’s alleged self-dealing and breaches of fiduciary duty. Simultaneously, the administrators filed a petition in the estate seeking damages from Carol Remer. These actions were consolidated and tried to the court in equity.

The court found that Remer had engaged in self-dealing and had breached his fiduciary duties to Jordan. A judgment for damages was entered in favor of the administrators against Remer, his wife, Carol, and Garden Farms, Inc. The court’s decree was later amended in particulars not pertinent to this disciplinary action.

In an opinion issued today, this court, in a de novo review of the judgment in the civil suit, held that the issue to be decided was whether the transactions in which Remer engaged on behalf of the conserva-torship should be approved. In re Guardianship & Conservatorship of Jordan, 616 N.W.2d 553, 556 (Iowa 2000). We held that the challenged transactions should not be approved either because they were not advantageous to the ward or because the ward did not have any obligation for the alleged debts paid from conservatorship funds. Id. at 556. Accordingly, we affirmed the money judgment against Remer and Garden Farms, Inc., but reversed that part of the court’s order refusing to set aside the sale of Jordan’s farm to Remer. Id. at 557.

Upon completion of the civil matter in the district court, the Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint against Remer alleging that his conduct in connection with the Jordan guardianship and conservatorship violated the Iowa Code of Professional Responsibility. The Board stated that it intended to rely on the doctrine of issue preclusion to prove the allegations of the complaint. Remer filed an answer and statement of affirmative defenses.

The matter was heard before a division of the Grievance Commission. At the hearing, the Board offered three exhibits: (1) an order of public reprimand issued by the Iowa Supreme Court against Remer in 1987; (2) the district court’s decree in the civil matter; and (3) the court’s later amendment to its decree. The Board introduced no other evidence.

The Grievance Commission issued its report finding that Remer, as Jordan’s fiduciary, had engaged in a long course of extreme and pervasive self-dealing. The Commission concluded that Remer had violated several provisions of the Iowa Code of Professional Responsibility. Although the Commission made no findings that the prerequisites for application of the issue preclusion doctrine were met, it implicitly found the doctrine applicable because there was no factual basis for its findings other than the two district court rulings.

The matter is now before this court for our de novo review pursuant to Court Rule 118.10. Although we give respectful consideration to the Commission’s findings, conclusions and recommendations, it is ultimately the responsibility of this court to determine whether discipline is appropriate. See Iowa Supreme Ct. Bd. of Prof' l Ethics & Conduct v. Apland, 577 N.W.2d 50, 52 (Iowa 1998). The Board must prove the alleged ethical violations by a convincing preponderance of the evidence. See id.

In evaluating the strength of the case presented by the Board, we must first determine whether the doctrine of issue preclusion was properly applied. Our decision on that question will govern the propriety of the Commission’s acceptance into evidence of the two district court orders entered in the civil case.

II. Applicability of Issue Preclusion.

CourURule 118.7 provides in part as follows:

Principles of issue preclusion may be used by either party in a lawyer disciplinary case if:
1. The issue has been resolved in a civil proceeding that resulted in a final judgment, even if the Iowa Supreme Court Board of Professional Ethics and Conduct was not a party to the prior proceeding;
2. The burden of proof in the prior proceeding teas greater than a mere preponderance of the evidence; and
3. The party seeking preclusive effect has given written notice to the opposing party, not less than ten days prior to the hearing, of the party’s intention to invoke issue preclusion.

(Emphasis added.) Upon our consideration of these prerequisites, we conclude that the second requirement — that the burden of proof in the prior proceeding was greater than a preponderance of the evidence — is not met here.

Generally, in civil matters, the party bearing the burden of proof must establish the elements of his or her case by a preponderance of the evidence. Iowa R.App. P. 14(f)(6); State ex rel. Miller v. Rahmani, 472 N.W.2d 254, 257 (Iowa 1991); 29 Am.Jur.2d Evidence § 157, at 183 (1994). Under certain circumstances, however, the court may, for policy reasons, require proof by a clear and convincing preponderance of the evidence. E.g., Midwest Home Distrib., Inc. v. Domco Indus. Ltd., 585 N.W.2d 735, 738 (Iowa 1998) (requiring proof of fraudulent misrepresentation by a preponderance of clear, satisfactory, and convincing evidence); In re J.P., 574 N.W.2d 340, 342 (Iowa 1998) (stating that application for involuntary commitment must be supported by clear and convincing evidence); First Fed. Sav. & Loan Ass’n v. Blass, 316 N.W.2d 411, 414 (Iowa 1982) (holding that party asserting the defense of laches must prove its essential elements by clear, convincing, and satisfactory evidence); Iowa Code § 668A.1 (1999) (requiring proof of defendant’s willful and wanton disregard for the rights or safety of another by a preponderance' of clear, convincing and satisfactory evidence to sustain award of punitive damages).

Here, the Commission admitted into evidence and relied on the rulings issued in the underlying civil matter. The issue in that case was whether there was “adequate reason for the transaction[s]” in which the conservator engaged as required by Iowa Code section 633.155 (1987). In re Guardianship & Conservatorship of Jordan, 616 N.W.2d at 558. We are aware of no statute or rule of law that calls for a heightened burden of proof in such a case. Therefore, the fiduciary was merely required to establish the desirability of the challenged transactions, from the ward’s viewpoint, by a preponderance of the evidence.

The fact that the trial court in the civil matter awarded punitive damages, which were affirmed on appeal, is of no assistance to the Board. It is true that, in order to recover punitive damages, the administrator of Jordan’s estate was required to prove Remer’s willful and wanton disregard of Jordan’s rights by a preponderance of clear, convincing, and satisfactory evidence. See Iowa Code § 668A.1. But that issue merely went to the nature of Remer’s conduct. The propriety of the underlying conduct, to the extent it was litigated in the civil suit, was determined by the lower standard of preponderance of the evidence.

Because the burden of proof in the prior proceeding was not greater than a mere preponderance of the evidence as required by rule 118.7, the requirements for the application of issue preclusion under that rule are not met. Accordingly, the Commission erred in admitting into evidence in this disciplinary matter the rulings issued by the trial court in that proceeding.

III. Disposition.

Upon our de novo review, we hold that the Commission erred in admitting the orders entered in the underlying civil suit because those orders did not meet the prerequisites established by rule 118.7 for the use of issue preclusion. Therefore, we vacate the Commission’s report and remand this matter to the Commission for a new hearing. See Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 578 (Iowa 1997) (remanding case for new trial where trial court had erroneously admitted evidence); State v. Deases, 518 N.W.2d 784, 792 (Iowa 1994) (same).

REPORT VACATED AND CASE REMANDED FOR NEW HEARING.

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


author: CARTER, Justice.

text:
    CITY OF CEDAR RAPIDS, Iowa, Appellee, v. Edward G. ATSINGER III, Appellant.
    No. 98-1066.
    Supreme Court of Iowa.
    Sept. 7, 2000.
    Rehearing Denied Oct. 10, 2000.

      Kevin P. Shea of Shea Law Offices, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant Attorney General, for appellee.
   CARTER, Justice.

Edward G. Atsinger III, a motorist convicted of driving at an excessive speed in violation of an ordinance of the City of Cedar Rapids, challenges the uniform citation and complaint on which the charge was brought. He urges that the complaint was not an “information under oath,” as required by article I, section 11 of the Iowa Constitution. For reasons discussed in this opinion, we agree with Atsinger’s contention and reverse the conviction entered in the district court.

On October 19, 1997, Atsinger’s vehicle was pulled over by police on Interstate 380 in the city limits of Cedar Rapids. He was given a citation charging him with driving seventy-four miles per hour in an area where the maximum speed limit was sixty miles per hour in violation of Ordinance No. 61.029 of the City of Cedar Rapids. The offense charged was a simple misdemeanor. On the uniform citation and complaint that the officers issued, two names and officer identification numbers were printed beneath a certification that recited: “I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct.”

The procedure provided in the Iowa Rules of Criminal Procedure for the charging of a simple misdemeanor is:

Prosecutions for simple misdemeanors must be commenced by filing a subscribed and sworn to complaint with a magistrate or district court clerk or the clerk’s deputy.

Iowa R.Crim. P. 35. In the case of traffic citations, the commissioner of public safety, the director of transportation, and the director of natural resources, acting jointly, are authorized by law to adopt a uniform document serving as both a citation and complaint. Iowa Code § 805.6 (1997). One of the copies of the citation retained by the officer becomes the complaint when filed, as provided in Iowa Rule of Criminal Procedure 35.

Subsection 4 of section 805.6 provides: The uniform citation and complaint shall contain a place for the verification of the officer issuing the complaint. The complaint may be verified in accordance with section 622.1.

Iowa Code section 622.1, which was enacted in 1984, provides:

When the laws of this state or any lawful requirement made under them requires or permits a matter to be supported by a sworn statement written by the person attesting the matter, the person may attest the matter by an un-sworn written statement if that statement recites that the person certifies the matter to be true under penalty of perjury under the laws of this state, states the date of the statement’s execution and is subscribed by that person. This section does not apply to acknowledge-ments where execution is required by law, to a document which is to be recorded under chapter 558 or to a self-proved will under section 633.279, subsection 2.

Before section 805.6 was amended in 1995 (1995 Iowa Acts ch. 81, § 1(a)), subsection 4 of that section had provided:

The uniform citation and complaint shall contain a place for the verification of the officer issuing the complaint. The complaint may be verified before the chief officer of the law enforcement agency, or the chief officer’s designee, and the chief officer of each law enforcement agency of the state is authorized to designate specific individuals to administer oaths and certify verifications.

Atsinger contends that verification of the uniform citation and complaint by the procedure prescribed in Iowa Code section 622.1 in lieu of the former requirement that the information to be given under oath in the presence of someone empowered by law to administer oaths is in violation of article I, section 11 of the Iowa Constitution. That constitutional provision states:

All offenses less than felony and in which the punishment does not exceed a fine of one hundred dollars, or imprisonment for thirty days, shall be tried summarily before a justice of the peace or other officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, saving to the defendant the right of appeal.

Iowa Const, art. I, § 11 (emphasis added).

Atsinger contends that in order to have an information under oath the declarant must appear and take an oath before a public official empowered to administer an oath. He relies on two prior decisions of this court as supporting this contention.

The first case relied on by Atsinger is State v. Phippen, 244 N.W.2d 574 (Iowa 1976). Like the present case, Phippen was a challenge to a uniform citation and complaint on the basis that it was not made under oath. The issues involved both statutory interpretation and the application of article I, section 11 of our state constitution. The citation and complaint in Phippen was subscribed to by the officer at a time when the statutory law required a uniform citation and complaint to contain an oath to be administered by one empowered by statute to administer oaths. The uniform citation and complaint at issue contained a jurat, which recited:

subscribed and sworn to before me on _19_A.D.
(Signature of Official Administering Oath)

The uniform citation and complaint on which Phippen was tried contained a jurat that at all times remained completely blank. He challenged this deficiency in the district court where a judgment of conviction resulted. On appeal this court held:

We hold that the complaint was not shown to be under oath’or affirmation and was deficient under § 11 of our Bill of Rights [article I, § 11 of the Iowa Constitution] and § 753.13 of the Code.

Phippen, 244 N.W.2d at 576.

The Phippen case is significant for two reasons. First, it is a square holding that, if a uniform citation and complaint does not comply with the constitutional oath requirement of article I, section 11, the charge must be dismissed. Second, in discussing the necessary formalities of a valid oath, the Phippen case refers to and considers as instructive the decision of this court in Dalbey Bros. Lumber Co. v. Crispin, 234 Iowa 151, 12 N.W.2d 277 (1943). Dalbey is the other case on which Atsinger relies. In referring to the Dalbey case, this court stated in Phippen:

This court considered the necessary formalities for an “oath” in Dalbey Bros. Lumber Co. v. Crispin. Our statutes list the officers who may administer oaths and take affirmations in § 78.1 of the Code. See also §§ 78.2 and 753.13. Under the Dalbey decision, undoubtedly either an “oath” or “affirmation” would suffice, and the present form [of jurat], if completed, would be sufficient; undoubtedly the oath or affirmation could be administered or taken by any of the officials listed in § 78.1, or in §§ 78.2 or 753.13 where applicable; and undoubtedly an oath or affirmation, if actually administered or taken, could be proved by a completed jurat of the official or, if the jurat was not completed, by evidence aliunde.

Phippen, 244 N.W.2d at 575-76 (citations omitted).

At issue in the Dalbey case was whether a mechanic’s lien had contained “a verified statement of account.” The challenge raised in the Dalbey case was that the notary had used an acknowledgement form rather than a jurat. The acknowledgement only stated that the declarant had “executed the same as his voluntary act and deed.” In discussing the formalities of an oath in Dalbey, this court referred to a discussion in 39 Am.Jur. Oath & Affirmation § 13, which stated:

[T]o make a valid oath, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.

Dalbey, 234 Iowa at 156, 12 N.W.2d at 279. Relying on proof aliunde that the declar-ant had sought out an officer authorized to administer an oath for the purpose of giving a sworn account, the court found that the mechanic’s lien was sufficiently verified. Id. at 157, 12 N.W.2d at 280.

The city counters Atsinger’s reliance on the Phippen and Dalbey cases by suggesting that this court in a more recent case has approved a more flexible approach in the determination of what constitutes an oath. It bases that assertion on State v. Walker, 574 N.W.2d 280 (Iowa 1998), in which the issue was whether making a false return of service on a subpoena was punishable as perjury. In Walker the defendant had appeared before a notary, placed his signature on the verification of service, and the notary had completed a jurat reciting “subscribed and sworn to before me.” There was evidence presented that the defendant had appeared before the same notary on other occasions to have his process serving verified. Evidence was presented that on some of these occasions the notary had advised the defendant that he was certifying that his statements on the return of service were true. Apparently, that admonition was not given in the situation that led to the perjury charge. Although Walker testified that he did not raise his hand and recite an oath and the notary had not recited an oath to him, we held that there was sufficient evidence for the trier of fact to find that the defendant’s statement on the return of service was made under oath. Walker, 574 N.W.2d at 286.

Because the acts of perjury relied on by the state in Walker did occur before a public officer empowered to administer an oath and that officer executed a jurat asserting that the statement had been sworn to, the case is of little assistance in deciding the present controversy. The language in Walker on which the city relies to show a relaxation of the formal requirements for an oath had to do with the formalities of having the affiant raise his hand and the notary orally administer an oath. We held that it was sufficient to certify to the facts in writing. Id. at 287. In so deciding, Walker was only being consistent with earlier decisions of this court holding that the formality of an oral recitation of the oath is not necessary. E.g., State v. Boner, 186 N.W.2d 161, 164 (Iowa 1971). The significant aspect of an oath, which was found to be crucial in Walker, was whether the affiant’s “conscience was bound” by the events that took place at the time the oath was administered. Walker, 574 N.W.2d at 286.

Support for Atsinger’s contention that the procedure in the present case violated article I, section 11 of the Iowa Constitution was found in a 1987 opinion of the Iowa Attorney General. That opinion responded to a request concerning whether the procedure established in section 622.1 could be utilized in the verification of a uniform citation and complaint under the version of section 805.6(4) that existed pri- or to 1995. The opinion expressed the view that it could not. Although it was primarily based on statutory interpretation, the opinion expressed the view that to do so would be a violation of article I, section 11 of the Iowa Constitution. 1987 Op. Iowa Att’y Gen. 52.

We are persuaded that on balance the arguments on the issue strongly favor Atsinger’s position. Both the Phippen and Dalbey decisions concluded that a statement under oath involved an appearance before an officer empowered to administer oaths. So does the opinion of the attorney general to which we have referred. We are convinced that the factor of binding one’s conscience, which was highlighted in Walker, is not to be accomplished alone in the oath-taking process. Some person must be present to assure that this occurs. Perhaps the strongest evidence that this is what the constitution requires is that appearance before a designated officer was accepted as being a requirement for an oath for more than 125 years between the adoption of the constitutional provision at issue in 1857 and the enactment of section 622.1 in 1984. We are persuaded that this requirement should remain.

The city’s arguments, in order to succeed, require a conclusion that the penalty of perjury is the equivalent of a verification under oath. We are convinced that it is not. When the law was changed to provide an alternative form of verification in lieu of an oath, the legislature observed the distinction by referring to the alternative as attestation by “an unsworn written statement.” 1984 Iowa Acts ch. 1048, § 1.

The conclusion that if a false assertion is made punishable as perjury then that assertion has been made under oath is based entirely on circular reasoning to wit:

Q. When is a statement made under oath? A. When it is punishable as perjury if false.
Q. When is a false statement punishable as perjury? A. When it has been made under oath.

Notwithstanding the fact that perjury may be a consequence of violating an oath, if the legislature were to repeal all statutes on perjury, the constitutional and statutory provisions requiring statements to be made under oath would remain in full force and effect.

The city asks us to favor its position by taking into account societal changes, whether drastic or subtle in nature, occurring with the passage of time. When pierced to the core, the crux of the city’s argument is convenience. We perceive no societal changes that suggest we should modify, on grounds of convenience, the elements of an oath that existed in 1857. Indeed, the opposite appears to be true. In 1857 there were a limited number of persons available to administer an oath. Today, there are many such persons, and by appropriate legislation, this number can be broadened. Under the version of section 805.6(4) that existed prior to the 1995 amendment, law enforcement agencies were granted broad discretion in designating persons who might administer oaths. We are convinced that article I, section 11 of the Iowa Constitution requires that misdemeanor charges be tried on information under oath and not on unsworn informa-tions that for reasons of convenience might be accepted as a functional equivalent of an oath.

The judgment of the district court is reversed.

REVERSED.

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

      . Both the Phippen case and the Dalbey case equate verification with a statement under oath. Phippen, 244 N.W.2d at 575; Dalbey, 234 Iowa at 157, 12 N.W.2d at 279.

      . A fundamental reason to require the presence of another is that this serves to enhance the conscience of the person taking the oath. A practical reason for requiring the presence of another is to assure that the person who had knowledge of the facts is the same person who subscribed to the verification. An example of the latter situation is found in Dalbey in which the court considered whether the affi-ant was in fact the person who signed the verification. Dalbey, 234 Iowa at 157, 12 N.W.2d at 280. If the city's position is adopted, there is no way of assuring that the citation has actually been certified by the officer instead of some administrator in the system.