author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Gerald R. LONG, Appellant.
    No. 97-1165.
    Supreme Court of Iowa.
    May 31, 2001.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer and John P. Messina, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, John P. Sarcone, County Attorney, and Melodee Hanes and George Karnas, Assistant County Attorneys, for appellee.
   LARSON, Justice.

Gerald R. Long was convicted of first-degree murder and appealed, arguing error of the district court in admitting evidence in violation of our hearsay rules and his confrontation rights under the Sixth and Fourteenth Amendments to the United States Constitution. We reverse and remand.

I. Facts and Prior Proceedings.

Due to problems with the court reporter in this case, the parties have had a difficult time producing a transcript. In fact, significant portions of the transcript were never produced by the reporter. The parties have, however, created a reasonably complete record through stipulation and piecing together portions of the available transcript. This record establishes the following facts.

On July 25, 1996, Jillene Long was shot to death in her home by her husband, this defendant. The defendant admits he shot the victim but defends on a theory of diminished capacity. Jill had lived in fear of the defendant for some time prior to the shooting because he was physically and verbally abusive. In the week prior to the killing, Long became irritated at his wife for waking him, and he shot at her, but missed. Jill phoned 911, but the call was cut short. When the operator called back, the defendant answered the phone. When Jill got on the phone, she said there was no problem. She later said to others she had told the dispatcher there was no problem because Long had threatened her. After this incident, the defendant sought emergency room treatment for paranoid, suicidal, and homicidal thoughts. He was routed to a number of different hospitals and psychiatrists.

As part of the diagnostic protocol for the defendant, Jill was contacted on July 22 by Dr. Preston, a psychiatrist. Dr. Preston described Jill as “anxious and angry,” angry both at Dr. Preston for suggesting she leave her residence and angry at the defendant. Dr. Preston testified that Jill was concerned for her safety and angry because she “wanted [the defendant] to remain hospitalized for an extended length of time, such that he would no longer be a risk to [her] or her family.” However, Dr. Preston informed Jill, “[W]e are not able to do that ... we cannot control when they leave and that we’re not a jail or a prison.”

The next day, July 23, the defendant was transferred to another hospital. A social worker from this hospital contacted the defendant’s wife who, during that conversation, provided additional information that has become the focal point of this appeal. The social worker testified that,

[Jill] said [the defendant’s] brother, David, had been in jail towards attempted murder of his girlfriend. She said that David had coached [the defendant] on what to say to psychiatrists regarding what someone might be trying to say if they were mentally ill, what they would try to say.

On July 24, Jill called the police again. According to the dispatcher, “[Jill] said she wanted us to get him out of there [the hospital] and arrest him. I said that we couldn’t do that.” In his testimony, the dispatcher explained, “He was already locked up. We don’t pick people up from a hospital bed until they’re going to be discharged.” An officer also testified that on the 24th Jill indicated to him she was not satisfied with the actions of various agencies she had contacted for help, including the Des Moines Police Department, and she was particularly concerned about the lack of activity or action being taken by a certain detective. On the same day, Jill met with an attorney to prepare a petition for dissolution of marriage. This attorney described her as “expressing] a great deal of anxiety and a great deal of anger.”

On July 25, the defendant was discharged from the hospital with prescriptions for antipsychotic and antidepressant medications and the understanding he would be voluntarily admitted for substance abuse treatment at another facility. The defendant went to this facility, but when he learned it would cost $9000, he refused treatment. According to the defendant, he went home, fell asleep in his recliner, and the next thing he remembered he found himself standing over his wife’s body. She had been shot several times.

At trial both sides presented expert testimony. The testimony was conflicting as to whether the defendant was suffering from posttraumatic stress disorder stemming from his military service in Vietnam and whether he was in a disassociative state at the time of the killing. The theory of the defense was that the defendant was suffering from diminished capacity to commit first-degree murder. The jury returned a verdict of guilty to the charge of first-degree murder.

II. Application of Rule 803(4).

The sole issue to be resolved is whether the district court erred in admitting hearsay statements made by the vie-tim to the psychiatric social worker. The State, as proponent of the evidence, has the burden of showing the statement falls within an exception to the hearsay rule. State v. Miller, 204 N.W.2d 834, 840 (Iowa 1973). The State relied on Iowa Rule of Evidence 803(4) to support the admission of the victim’s statement about the defendant having been coached on faking a mental condition. Under rule 803,

[t]he following are not excluded by the hearsay rule ...
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

In applying this rule, we have adopted the test of United States v. Renville, 779 F.2d 430 (8th Cir.1985), under which the proponent of the questioned evidence must satisfy a two-part test. See State v. Hildreth 582 N.W.2d 167, 169-70 (Iowa 1998). Under Renville, the test is

first, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.

Renville, 779 F.2d at 436. The second test of Renville is not challenged by the defendant. He concentrates on the first element, claiming the State has failed to carry its burden of demonstrating Jill’s motive was consistent with the purpose of promoting the defendant’s treatment.

According to one authority,

[t]he rationale underlying the Rule 803(4) exception for statements made for purposes of treatment is that the declar-ant’s motive guarantees their trustworthiness, since he has a “motive to disclose the truth because his treatment will depend in part upon what he says.”
As the declarant’s motive to promote treatment or diagnosis is the factor crucial to reliability, Rule 803(4) does not require the statement to be made to a physician. The notes to the Rule indicate that statements to hospital attendants, ambulance drivers, or even members of the family may be admissible provided they are made for purposes of diagnosis or treatment.

4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 803(4)[01], at 803-152 (1994) [hereinafter Weinstein] (quoting Meaney v. United States, 112 F.2d 538, 540 (2d Cir.1940)) (other citations omitted); see also State v. Mann, 512 N.W.2d 528, 535 (Iowa 1994) (noting the rationale of rule 803(4) is the “probability that the patient will not fabricate statements made to the physician if the patient’s future treatment and well-being are at stake”) (citing Devore v. Schaffer, 245 Iowa 1017, 1021, 65 N.W.2d 553, 555 (1954)). The defendant appears to concede that a social worker may be a health care person covered by rule 803(4).

Ordinarily, because of the gravity of the condition for which the declarant is seeking treatment, the assurance of truthfulness is significant. In fact,

a statement made in the course of procuring medical services, where the de-clarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.

White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859 (1992).

The hearsay exception under rule 803(4) does not require the statement to be made by the person to be diagnosed or treated. Third persons who have a strong motivation to obtain satisfactory treatment or diagnosis for a person in a close relationship, such as a parent or spouse, would ordinarily be motivated to be truthful. In fact, courts have generally applied the rationale of rule 803(4) in those circumstances.

Statements relating to someone else’s symptoms, pains, or sensations would be admissible, provided again that they were made for purposes of diagnosis or treatment of that person. The relationship between declarant and patient will usually determine admissibility. In the case of a child, a court would undoubtedly assume the absence of any motive to mislead on the part of the parents. As the relationship becomes less close, the statement becomes less reliable, both because the motive to tell the truth becomes less strong, and because even a stranger in good faith may not be able to describe another’s physical pain and suffering infallibly as an intimate.

Weinstein ¶ 803(4)[01], at 803-152 to 803-153.

But what about a declarant whose motivation is not clearly to receive effective treatment for another but possibly to suppress or twist the truth to accomplish the declarant’s own ends? This phenomenon has been noted in cases in which a parent is suspected of abusing a child. One case, noting the general view that a parent would presumably be truthful in obtaining treatment for a child, noted:

Conversely, the mere fact that the patient’s parent is the declarant does not automatically establish the requisite motivation — ie., that “the declarant’s motive in making the statement to the medical provider must be to promote treatment or diagnosis.” Rather, as with any other foundational fact, the de-clarant’s motivation, which is the touchstone of reliability, must be assessed by the court on a case-by-case basis.

State ex rel. Juvenile Dep’t of Multnomah County v. Pfaff, 164 Or.App. 470, 994 P.2d 147, 155 (1999) (citation omitted).

This defendant argues the State failed to show the declarant was motivated to help the defendant get adequate treatment. The defendant suggests that, rather, the declarant’s purpose in making the statement was suspect — perhaps to secure jail time for the defendant. In addition, the victim had recently initiated a divorce proceeding against the defendant. This suggests, to paraphrase Weinstein, the relationship had become less close and the statement less reliable because the motive to tell the truth had become weaker. See Weinstein § 803(4)[01], at 803-153.

A. Standard of review. In Mann we considered the admissibility of a statement made by a sex-abuse victim to her doctor, which related details of the event (including the type of truck involved). The defendant claimed such details were not necessary to her treatment, and thus portions of her statement fell outside the rule 803(4) exception. We held the court properly allowed the evidence, applying an “abuse of discretion” standard. Mann, 512 N.W.2d at 536. Other courts, including the eighth circuit, have applied an abuse-of-discretion standard as well in applying rule 803(4). See, e.g., Stull v. Fuqua Indus., Inc., 906 F.2d 1271, 1274 (8th Cir.1990); United States v. Iron Thunder, 714 F.2d 765, 772 (8th Cir.1983); see also Weinstein ¶ 803(4)[01], at 803-158 n. 19 (“[T]he appellate court may only reverse for a clear abuse of discretion” in applying rule 803(4).).

What we have, perhaps erroneously, referred to in cases such as Mann as the district court’s exercise of discretion in applying rule 803(4) is perhaps more accurately a matter of deference. If a court’s factual findings with respect to application of the hearsay rule are not “clearly erroneous” or without substantial evidence to support them, they are binding on appeal. See Young v. Commonwealth, — S.W.3d —, —, 2001 WL 431243 (Ky.2001) (discussing excited-utterance exception to hearsay rule). This is properly characterized as deference to the fact-findings rather than the exercise of discretion.

Whether a particular statement qualifies as an excited utterance depends on the circumstances of each case and is often an arguable point; and “when this is so the trial court’s decision to admit or exclude the evidence is entitled to deference.” That is but another way of saying that when the determination depends upon the resolution of a preliminary question of fact, the resolution is determined by the trial judge under [Kentucky Rule of Evidence] 104(a) on the basis of a preponderance of the evidence, and the resolution will not be overturned unless clearly erroneous, ie., unless unsupported by substantial evidence.

Id. at-(citations omitted).

Iowa Rule of Evidence 104(a) provides for preliminary resolution of fact issues underlying the admissibility of evidence. Under this rule,

[preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision “b” [relevancy conditioned on fact]. In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Iowa R. Evid. 104(a) (emphasis added). Under federal rule 104(a), the standard of proof is a preponderance of the evidence, Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144, 152-53 (1987), and we believe that is the proper standard of proof to be applied under our rule 104(a).

The rationale for federal rule 104(a) is explained in the advisory committee’s comment to the rule, and we believe that comment is pertinent here. It states:

The applicability of a particular rule of evidence often depends upon the existence of a condition. Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable? Was a stranger present during a conversation between attorney and client? In each instance, the admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations.
To the extent that these inquiries are factual, the judge acts as a trier of fact. Often, however, rulings on evidence call for an evaluation in terms of a legally set standard. Thus when a hearsay statement is offered as a declaration against interest, a decision must be made whether it possesses the required against-interest characteristics. These decisions, too, are made by the judge.
In view of these considerations, this subdivision refers to preliminary requirements generally by the broad term “questions” without attempt at specification.

Fed.R.Evid. 104(a) advisory committee’s note (citations omitted).

The comment to Iowa’s rule 104(a) explains additional rationale for the rule:

Rule 104(a) establishes a procedure whereby preliminary matters concerning both exclusion and admission of evidence can be addressed by the Court. While Iowa has enjoyed the liberal use of the motion in limine with regard to the exclusion of an anticipated eviden-tiary offer, there is no Iowa counterpart regarding an advance determination with respect to admission. It is felt that the rule would greatly facilitate the orderly admission of evidence.

Iowa R. Evid. 104(a) committee comment (1983) (emphasis added).

As rule 104(a) envisions, it has been common for courts to use the rule to preliminarily determine the admissibility of proffered evidence. We have recommended the use of rule 104(a), for example, to determine in advance the admissibility of expert testimony. See Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 534 (Iowa 1999).

In a military court of appeals case, the court approved the use of a rule of evidence identical to our rule 104(a) and concluded:

When the medical exception to the hearsay rule [803(4)] is involved, the question whether the patient has the requisite state of mind and expectation of receiving a medical benefit is a preliminary question of fact under [rule of evidence 104(a)]. As such, it will be set aside “only if clearly erroneous.”

United States v. Kelley, 45 M.J. 275, 280 (C.A.A.F.1996) (citation omitted).

In another case, a federal court discussed the preliminary fact-finding function of rule 104(a) in assessing a claimed exception to the hearsay rule under Federal Rule of Evidence 801:

Following the procedure contemplated by Fed.R.Evid. 104(a), the trial judge found not only that the narrative contained in the hospital record was attributable to [the declarant] but also that its trustworthiness was sufficient to permit the jury to consider it and to pass upon its (ultimate) reliability. These factual findings have ample record support.

Onujiogu v. United States, 817 F.2d 3, 5 (1st Cir.1987).

In a case regarding the exception to the hearsay rule for statements of co-conspirators, a federal court said:

Under [Federal] Rule 801(d)(2)(E), an out-of-court statement is not hearsay with respect to a given party if it was made by a co-conspirator of that party in furtherance of the conspiracy. In order to admit such a statement, the trial court is required to find, as preliminary facts under Fed.R.Evid. 104(a), that a preponderance of the evidence supports the conclusions that there was a conspiracy, that both the declarant and the party against whom the statement is offered were members of it, and that the statements were made in furtherance of the conspiracy.... The trial court’s determinations of these preliminary facts may not be disturbed unless they are clearly erroneous. We have no difficulty in upholding the findings of the trial court in the present case.

New York v. Hendrickson Bros., 840 F.2d 1065,1073 (2d Cir.1988) (citations omitted).

In Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997), the court approved the trial court’s use of a rule 104(a) hearing to determine if the prerequisites for the medical-treatment exception were established. Stringer, 956 S.W.2d at 887-88.

We review the admission of hearsay for errors at law, not for abuse of discretion. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000); State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). However, we give deference to the district court’s factual findings and uphold such findings if they are supported by substantial evidence. See Tangie, 616 N.W.2d at 569 (“We review a district court’s determination that a conspiracy existed [for purposes of Iowa Rule of Evidence 801(d)(2)(E)] under the substantial-evidence test.”).

B. The declarant’s motive. We note no specific findings by the district court concerning the elements of the State’s proffer of evidence under the rule 803(4) exception. Perhaps that is because we have an incomplete record. This shortcoming is not fatal to our resolution of the appeal, however, because we will merely assume the court made a factual finding that the requirements of the Renville test were satisfied. In Renville the court also noted a lack of specific findings. It said:

The record, however, provides no clear statement of the reasoning or findings supporting the admission of the evidence. See Fed.R.Evid. 104(a). We must therefore review the record evidence ourselves....

Renville, 779 F.2d at 440; see also State v. Florie, 411 N.W.2d 689, 695 (Iowa 1987) (“Trial court findings of conspiracy by a preponderance of the evidence were implicit in the trial court’s rulings in [prior] cases ... [, and] we upheld those implicit findings based on our conclusion that they were supported by substantial evidence in the record.”).

In reviewing the record in this case, we find no substantial evidence to support the district court’s implicit finding that the victim was primarily motivated to obtain effective diagnosis and treatment for her husband. In fact, she seemed intent on seeing him kept in some type of confinement facility — a mental hospital or jail. We believe the evidence of her statements was clearly inadmissible. Moreover, we presume prejudice to the nonoffering party unless the contrary is affirmatively established. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). Because introduction of the victim’s statement concerning his possible intent to fake a mental condition went to the heart of his only defense, diminished capacity, we reverse and remand for a new trial.

REVERSED AND REMANDED.

      . One authority has cautioned against confusing the deference accorded to preliminary fact-findings under rule of evidence 104(a) with the exercise of discretion:

      Some courts have suggested that Rule 104 was intended to confer discretion on the trial judge regarding the admissibility of evidence, a suggestion totally at odds with Rule 403, which is intended to limit and control judicial discretion in order to protect litigants.
      21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5053, at 146 (2001 Supp.).


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    In re DETENTION OF Harold WILLIAMS. State of Iowa, Appellee, v. Harold Williams, Appellant.
    No. 99-2055.
    Supreme Court of Iowa.
    May 31, 2001.

      Mark Smith, First Assistant State Public Defender, and Thomas J. Gaul and Catherine Johnson, Assistant Public Defenders, for appellant.
    Thomas J. Miller, Attorney General, and Scott D. Brown and Roxann M. Ryan, Assistant Attorneys General, for appellee.
   NEUMAN, Justice.

This is another in a series of appeals concerning the Sexually Violent Predator Act, Iowa Code chapter 229A (1999) . See In re Detention of Garren, 620 N.W.2d 275 (Iowa 2000); In re Detention of Morrow, 616 N.W.2d 544 (Iowa 2000). The case before us is distinguished by the fact that the respondent, Harold Williams, demanded and received a jury trial. See Iowa Code § 229A.7(2) (Supp. 1999). The jury’s unanimous verdict found, beyond a reasonable doubt, that Williams is a sexually violent predator. That means he must be committed to the custody of the director of the Department of Human Services (DHS) for control and treatment until he is “safe to be at large.” Id. § 229A.7(3).

Williams’ appeal includes several issues resolved in Garren that need not be revisited here. To begin, his claim that chapter 229A is criminal in nature, not civil, has been decided to the contrary. Garren, 620 N.W.2d at 283. Because commitment proceedings under chapter 229A are civil, neither ex post facto nor double jeopardy principles apply. See id. at 283-84. Our opinion in Garren also rejected the same substantive due process claim urged here by Williams. We held that although chapter 229A affords no less-restrictive alternative than placement in a secure facility, the statute nevertheless passes constitutional muster because a “reasonable fit” exists between the State’s goal of protecting the public “and the means chosen to advance that purpose.” Id. at 285 (quoting In re B.B., 516 N.W.2d 874, 879 (Iowa 1994)).

Turning to Williams’ remaining issues, we shall address his equal protection argument because it turns on a different classification than similar claims urged, and rejected, in Morrow and Garren. Williams also challenges the size of the jury impaneled to try him, the admissibility of evidence concerning prior bad acts, and the court’s refusal to instruct the jury on two topics: less-restrictive treatment alternatives and Williams’ claim that commitment requires proof of a “high” likelihood of reoffending.

The State cross-appeals the court’s refusal to permit victim testimony in its case in chief. It also challenges the court’s pretrial ruling regarding jury unanimity.

Pertinent facts will be detailed as they relate to the issues addressed.

Our appellate review of this action, tried at law, would ordinarily be for the correction of legal error. Iowa R. App. P. 4. To the extent Williams’ arguments rest on constitutional principles, however, we review them de novo in light of the totality of the circumstances. Morrow, 616 N.W.2d at 547. For the reasons that follow, we affirm on Williams’ appeal and affirm in part and reverse in part on the State’s cross-appeal.

I. Equal Protection.

Williams argues that Iowa Code chapter 229A violates both his federal and state rights to equal protection because “it treats mentally ill sexual offender commitments differently than other mentally ill civil commitments.” His argument rests on the premise that individuals subject to commitment under chapter 229A are similarly situated to mentally ill persons committed pursuant to chapter 229. The State counters that the two classes are not similarly situated because they do not have the same treatment needs. Urging the application of a rational basis test — not strict scrutiny, as Williams seeks — the State contends no equal protection violation can be shown. We agree.

A. Fundamental legal principles. Both the United States and Iowa Constitutions guarantee equal protection under the law to all persons. U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 6. Both require that similarly situated persons be treated alike under the law. Morrow, 616 N.W.2d at 548. Conversely, persons who are not similarly situated need not be treated the same for equal protection purposes. Id. When two groups are similarly situated, the court must determine the rights implicated by the challenged classification and the appropriate level of review. See generally 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.3, at 213-26 (3d ed. 1999).

The first step in any equal protection analysis is to determine what level of scrutiny applies. The determination rests on the rights implicated by the statutory classification. Because his liberty is at stake, Williams urges us to apply strict scrutiny to his challenge. This highest level of review is applied only when the challenged statute classifies persons in terms of their ability to exercise a fundamental right or when it classifies or distinguishes persons by race or national origin. Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 793 (Iowa 1994). Such a statute is not presumed constitutional. Rather, the State carries the burden of showing that the classification is narrowly tailored to serve a compelling government interest. Garren, 620 N.W.2d at 286.

The State asserts that the challenged classification need only satisfy the rational basis test. Under this familiar test, differential treatment is allowed so long as it is rationally related to a legitimate government interest. See Miller v. Bd. of Med. Exam’rs, 609 N.W.2d 478, 482 (Iowa 2000). Because statutes not subject to strict scrutiny enjoy presumptive constitutionality, a challenger must prove that the statutory classification is arbitrary and bears no rational relationship to a legitimate government interest. Id.

In Garren we noted that other states have not been uniform in deciding which level of scrutiny to apply when faced with an equal protection challenge to a sexually violent predator (SVP) statute. See Garren, 620 N.W.2d at 286 (citing jurisdictions). Without resolving the issue, we elected to apply strict scrutiny, confident that chapter 229A “passes muster” even when judged by the highest standard. Id.; cf. Morrow, 616 N.W.2d at 548 n. 1 (applying rational basis standard because strict scrutiny argument not preserved for appeal).

It is significant, we think, that the equal protection challenges addressed in Morrow and Garren differ markedly from the one urged here by Williams. Morrow’s claim of inequality asserted that he was being treated differently than other “violent offenders with ... antisocial personality disorder[s] who have served their prison sentences and are due for release.” Morrow, 616 N.W.2d at 548 (alterations in original). Garren claimed unequal treatment as compared to “all other recidivists.” Garren, 620 N.W.2d at 286.

Here Williams challenges classification by type of mental illness or abnormality. Neither the United States Supreme Court nor other state courts have ever applied a strict scrutiny standard in this circumstance. See, e.g., Heller v. Doe, 509 U.S. 312, 321-28, 113 S.Ct. 2637, 2643-47, 125 L.Ed.2d 257, 271-76 (1993) (applying rational basis standard to review different procedures used to commit those who are mentally ill and those who are mentally retarded); Illinois v. Pembrock, 62 Ill.2d 317, 342 N.E.2d 28, 30 (1976) (applying rational basis test to different commitment procedures for sexually violent predators and mentally ill). Importantly, “mentally ill” is not a suspect classification. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445-46, 105 S.Ct. 3249, 3257, 87 L.Ed.2d 313, 324 (1985). As the Arizona Court of Appeals recently observed, governmental classifications of the mentally ill have historically been analyzed under the rational basis test even when individual liberty was at stake. Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 796 (1999).

We therefore hold that the classification at issue here was properly reviewed by the district court using a rational basis standard.

B. Applying rational basis test. We are convinced that the differentiation between SVP commitment under chapter 229A, as compared to general commitment of the mentally ill under chapter 229, reveals a legislative scheme that is rationally related to a legitimate state interest. We have said that a classification is reasonable

if it is “based upon some apparent difference in situation or circumstances of the subjects placed within one class or the other which establishes the necessity or propriety of distinction between them.” A classification “does not deny equal protection simply because in practice it results in some inequality; practical problems of government permit rough accommodations.... ”

Morrow, 616 N.W.2d at 548 (quoting State v. Mann, 602 N.W.2d 785, 792 (Iowa 1999)) (citations omitted).

The legislation under review plainly states the reasons for distinguishing between mentally ill sex offenders and other mentally ill persons. It explains that among those convicted of sex crimes there exists a

small but extremely dangerous group of sexually violent predators ... who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment provisions for mentally ill persons under chapter 229, since that chapter is intended to provide short-term treatment to persons with serious mental disorders and then return them to the community.

Iowa Code § 229A.1. Contrasting those committed under chapter 229, the legislation states that sexually violent predators “have antisocial personality features that are unamenable to existing mental illness treatment modalities and that render them likely to engage in sexually violent behavior.” Id. Finally, the legislation recognizes that the mental condition of sexually violent predators makes “the existing involuntary commitment procedure under chapter 229 ... inadequate to address the risk these sexually violent predators pose to society.” Id. Thus the treatment required for sexually violent predators differs greatly from the treatment available under chapter 229. Id.; accord Morrow, 616 N.W.2d at 549.

As Williams rightly notes, persons committed under chapter 229 because of mental illness “lack[ ] sufficient judgment to make responsible decisions” and are likely to physically injure themselves or others without treatment. Iowa Code § 229.1(15)(a)-(b). But their mental illness does not predispose them to commit sexually violent acts. This important distinction between those committed under chapter 229 and SVPs committed under chapter 229A dictates different treatment, both in method and duration. As this court noted in Morrow, “[t]he particularly devastating effects of sexual crimes on victims, and the offenders’ need for specialized treatment provide a rational basis for the classification.” 616 N.W.2d at 549. So also here, the specialized treatment needs of SVPs, when compared to others who suffer from different mental abnormalities, justify the different classification and treatment chosen by the legislature.

Because the legislative scheme of chapter 229A is rationally related to the State’s interest in protecting the public while effectively treating those with this particular mental disorder, the statute does not violate equal protection under either the federal or Iowa Constitution. The district court was correct in so ruling.

II. Jury Issues.

A. Size. By motion to adjudicate law points filed prior to trial, Williams asserted that the correct jury size in a trial held pursuant to Iowa Code section 229A.7(2) (Supp. 1999) was twelve persons. He rested his argument on the Iowa Constitution, which provides for a twelve-person jury unless the legislature authorizes a lesser number. Iowa Const, art. I, § 9. The only reference to jury size in chapter 229A directs that “[t]he number and selection of jurors shall be determined as provided in chapter 607A.” Iowa Code § 229A.7(2) (Supp. 1999). However, chapter 607A addresses only the procedure for calling jurors; it is silent on the number of jurors required in a particular ease.

Williams contends that chapter 607A’s silence on the question means the general assembly has not authorized a jury of less than twelve for chapter 229A proceedings. In Garren, however, this court held that chapter 229A is a civil statute. Garren, 620 N.W.2d at 283. The Iowa Rules of Civil Procedure govern the practice in all courts of this state unless otherwise provided by statute. See Iowa R. Civ. P. 1. Rule 187(i) calls for an eight-person jury in civil jury trials.

Consistent with our holding in Garren, we presume that the legislature intended the rules of civil procedure to apply in actions brought under chapter 229A unless the statute specifically states otherwise. Cf. § 229A.7(3) (Supp. 1999) (requiring determination by criminal standard of “beyond a reasonable doubt”). Thus the district court committed no error when it deemed an eight-person jury sufficient under the Iowa Constitution to adjudicate Williams’ commitment under chapter 229A.

B. Unanimity. On a related point, chapter 229A specifically provides that a jury’s finding of SVP status must be by unanimous verdict. Iowa Code § 229A.7(3). Iowa Rule of Civil Procedure 203(a), however, permits a civil jury to return a less-than-unanimous verdict of seven to one after it has deliberated for at least six hours. Williams successfully argued in advance of trial that, if the rules of civil procedure apply, rule 203(a) should permit a jury to find by a vote of seven to one that the respondent is not an SVP. In other words, Williams claimed entitlement to be released — rather than face retrial — if the jury’s non-unanimous verdict favored him. The district court agreed.

The State resisted Williams’ contention on the ground rule 203(a) does not apply to prevent a mistrial in this context. Although the jury’s verdict here was unanimous, and so the point is moot, the State urges this court to address the district court’s ruling so that the matter may be clarified for future trials under chapter 229A.

We think the State’s position has merit. Although the statute is civil in nature, the liberty interests at stake prompted the legislature to impose a higher burden of proof on the State. Corresponding to this higher standard of proof, the jury’s verdict to commit must be unanimous. See Iowa Code § 229A.7(3) (Supp. 1999). That does not mean the legislature intended to hybridize the rules of civil and criminal procedure concerning the verdict.

There is only one issue on trial in a case like this — whether the respondent is a sexually violent predator under section 229A.7(3). Given that fact, and the fact that commitment requires a unanimous verdict, we think it would be absurd to conclude the legislature intended to permit a less-than-unanimous verdict to release the respondent. Such a result finds no support in this legislative scheme.

We hold that rule of civil procedure 203(a) does not apply in chapter 229A proceedings. If the jury cannot return a unanimous verdict, the court must discharge the jury and order a new trial. See Iowa Code § 229A.7(5) (Supp. 1999) (upon mistrial, court shall order respondent held pending retrial within ninety days); accord Iowa R. Civ. P. 200.

III. Evidentiary Issues.

A Background. Before turning to Williams’ evidentiary issues, we need to elaborate on the record leading up to this proceeding and the facts revealed at trial.

The State commenced this action as Williams was about to discharge a sentence for second-degree sexual abuse, having served ten years on an indeterminate twenty-five year term. See Iowa Code §§ 709.3(2), 902.9(1) (1987) (defining crime of second-degree sexual abuse and punishment therefor). The victim of Williams’ sexual assault was the five-year-old daughter of friends with whom he was then living. This incident, which involved digital penetration, followed four other convictions for sexual misconduct with children. In 1977, Williams pled guilty to lascivious acts with a child. Iowa Code § 725.10 (1977). He was released after serving roughly one-half of his five-year sentence. In 1981 he pled guilty and served a short prison term for indecent contact with a child. 1981 Iowa Acts ch. 204, § 7 (codified at Iowa Code § 709.12(1) (1983)). Again, in 1984, Williams pled guilty and served time for two more charges of indecent contact and lascivious acts. Iowa Code §§ 709.12(1), 709.8(1) (1983).

Williams, who was forty-three years old at the time of these commitment proceedings, claims to be a recovering pedophile. In chilling testimony he estimated that, prior to 1992, he engaged in sexual fantasies about children “probably as frequently as breathing.” During his most recent incarceration he took part in a sex offender program. Through self-help and work with a psychologist, Williams testified, he has learned to scrupulously avoid the “trigger” for his sexual misconduct — “the sight close up and the smell close up of a young girl.”

Beginning in 1999, and continuing up to the time of trial, Williams has taken regular injections of Depo Provera, a form of chemical castration designed to curb his sex drive. Two psychologists examined Williams in advance of trial and administered a battery of diagnostic tests. Dr. Catón Roberts, testifying on behalf of the State, stated that Williams suffers from pedophilia as well as a general personality disorder, a combination making him highly likely to reoffend unless kept in a secure facility. Williams’ own expert, Dr. Loren Rogers, confirmed the diagnosis of pedophilia. He testified, however, that Williams also suffers from posttraumatic stress disorder and schizoid personality. In his opinion, Williams’ disorders could more effectively be treated in a less-secure environment than the state medical facility at Oakdale.

B. Proof of prior convictions. Prior to trial, Williams moved in limine to prevent the State from introducing proof of his prior convictions, either through the testimony of victims or by any other means. Williams rested his argument on his willingness to stipulate to the underlying offenses. He also argued that the testimony of his own expert would confirm that he suffers from a mental abnormality, pedophilia. Thus, from his perspective, the only relevant and material evidence concerned whether he would be likely to reof-fend unless confined to a secure facility. See Iowa Code § 229A.2(9) (Supp. 1999).

The State urged the court to reject Williams’ argument, stressing that proof of prior conviction is not only an essential element of the State’s case, prior sexually violent behavior is a relevant predictor of future dangerousness. The district court agreed with the State on both counts. It granted Williams’ limine motion, however, to the extent the State sought to prove its case through victim testimony. Such means of proof was not essential to the State’s case, the court reasoned, and the probative value of such inquiry would be outweighed by its inherently prejudicial nature.

Neither Williams nor the State was content with the court’s ruling, and each has challenged it on appeal. They each face an uphill battle. Rulings on relevance of evidence and method of proof are entrusted to the sound discretion of the trial court. State v. Griffin, 564 N.W.2d 370, 372 (Iowa 1997). Reversal is warranted only upon a showing that the court has abused its discretion. Id. Neither party has made that showing here.

Iowa Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

We have observed that the listed exceptions are not exclusive; the key question is “whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts.” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (quoting State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987)).

The test to determine admissibility under rule 404(b) is two-pronged. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001). First the court must determine whether evidence of other crimes is relevant to prove a legitimate issue in question. Id. Evidence is relevant if it tends to make the existence of any consequential fact more probable or less probable than it would be without the evidence. Iowa R. Evid. 401. If the court determines that the evidence is relevant for some purpose other than proving bad character, it must then decide if the evidence’s probative value is substantially outweighed by the danger of unfair prejudice. Castaneda, 621 N.W.2d at 440. If the court determines the prejudicial effect outweighs the probable probative value of the contested evidence, the evidence, though relevant, is inadmissible. Id.

Plainly the proof of Williams’ prior convictions was essential, and therefore relevant, to the State’s case. No commitment could be had without it. And Williams’ willingness to so stipulate did not prevent the State from tendering evidence on the issue. State v. Cuevas, 288 N.W.2d 525, 530 (Iowa 1980). At the same time, Williams’ direct testimony on these crucial matters minimized the State’s need for victim testimony. Victim testimony would have added little substance, but potentially distracting emotion, to the questions of prior sexual misconduct and likelihood of reoffending. We think the district court wisely balanced the issues of relevance and unfair prejudice here. No ground for reversal appears.

C. Rebuttal testimony concerning other bad acts. The fighting issue at trial concerned the State’s use of victim testimony to rebut Williams’ testimony concerning an outing at Clear Lake in 1983. Williams admitted fondling two girls, aged five and thirteen, for which he was convicted of indecent contact and lascivious acts. Upon further questioning by the State, Williams denied having sexual contact with any of the other children who accompanied him to the lake. He later testified to the importance of “total honesty” concerning victims of his sex acts in order to further his progress in treatment. In that connection he volunteered his involvement in several unprosecuted sex acts with children dating back to his teenaged years.

Over Williams’ objection, the court then permitted the State to offer the brief rebuttal testimony of three sisters, now adults, who were among the other children with Williams at Clear Lake in 1983. They were then aged seven through nine. Each clearly recalled being fondled by Williams, and urged to touch his penis, after he pulled down their swimming suits.

The question on appeal is whether the court abused its discretion in permitting the rebuttal evidence just described. We conclude that it did not. The purpose of rebuttal testimony is to explain, controvert or disprove evidence tendered by the other side. State v. Miller, 229 N.W.2d 762, 770 (Iowa 1975). The sisters’ rebuttal evidence was relevant and served that purpose here.

First, the evidence directly countered Williams’ claim that he has come to terms with his disorder and, therefore, need not be confined in a secure facility for treatment. Second, it was not cumulative of the conviction evidence permitted under the court’s limine ruling. See id. Its purpose was not to paint Williams as a bad person but to give a complete picture of a person unable, or unwilling, to own up to past behaviors. Having an accurate portrait of Williams was crucial to the jury’s decision regarding his dangerousness and likelihood of reof-fending.

Nor was the probative value of the rebuttal testimony outweighed by its prejudicial impact. The testimony was brief and straightforward. These were not eight-year-olds describing recent traumatic events. They were adults matter-of-factly recalling unpleasant sexual encounters with Williams during their childhoods. We conclude the court was well within its discretion to admit it.

IV. Jury Instructions.

A “Highly likely” v. “more likely than not.” Williams contends the court denied him due process when it refused to instruct the jury that “likely to engage in predatory acts of sexual violence” means “highly likely to engage in acts of a sexually violent nature in the future if released.” Williams rests his argument on an alleged ambiguity in chapter 229A. The SVP act’s preamble states that “[t]he general assembly finds that sexually violent predators’ likelihood of engaging in repeat acts of predatory sexual violence is high .... ” Iowa Code § 229A.1 (emphasis added). But the statute defines the term “likely to engage in predatory acts of sexual violence” as “the person more likely than not will engage in acts of a sexually violent nature.” Iowa Code § 229A.2(3) (Supp. 1999) (emphasis added). The district court instructed the jury in accordance with the statutory definition. Williams claims this was wrong and erroneously reduced the State’s burden, contrary to due process. We disagree.

Two courts have wrestled with the issue posed by Williams. He relies heavily on In re Linehan, 557 N.W.2d 171 (Minn.1996), vacated and remanded sub nom. Linehan v. Minnesota, 522 U.S. 1011, 118 S.Ct. 596, 139 L.Ed.2d 486, on remand, 594 N.W.2d 867 (Minn.1999). Like chapter 229A, Minnesota’s Sexually Dangerous Persons Act states that future harm must be “likely.” Linehan, 557 N.W.2d at 180. But, unlike its Iowa counterpart, the Minnesota statute requires only “clear and convincing evidence” to support commitment. Id. To comport with due process and assure “a degree of overall certainty consistent with the statute,” the Minnesota court required a showing that it was “highly likely” that alleged predators would commit sexually violent acts in the future. Id.; see also In re Linehan, 594 N.W.2d 867, 876 (Minn.1999).

The Washington Court of Appeals, responding to an argument identical to the one urged here by Williams, rejected Minnesota’s insistence on the “highly likely” standard because — like Iowa — commitment under Washington’s SVP statute requires proof beyond a reasonable doubt. In re Detention of Brooks, 94 Wash.App. 716, 973 P.2d 486, 491 (1999), petition for review granted, 138 Wash.2d 1021, 989 P.2d 1136 (1999). The court observed that “clear and convincing” proof is all that is required to meet due process in ordinary civil commitments. Id. (citing Addington v. Texas, 441 U.S. 418, 428, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323, 332 (1979)). It therefore reasoned that because Washington requires the highest standard of proof, “the term ‘likely' can be given its ordinary meaning without the risk of falling below the constitutionally required minimum of clear and convincing evidence.” Id.

We agree with the Washington court’s analysis. In determining what process is due an individual threatened with the loss of a right, we are guided by the factors announced in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). We must consider (1) the private interest affected, (2) the State’s interest, and (3) the risk of erroneous deprivation of the individual’s interest under the process already provided and the value, if any, of additional or different safeguards. Id. Put another way, due process requires that “[an] individual ... not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” Addington, 441 U.S. at 427, 99 S.Ct. at 1810, 60 L.Ed.2d at 331-32.

In this case, Williams’ interest in freedom from restraint is matched by the State’s equally compelling interest in protecting society from a person prone to sexually assaulting children. The statute contemplates that the fact finder’s decision will not be made lightly, for chapter 229A imposes on the State the highest burden of proof — beyond a reasonable doubt. The State, rather than Williams, bears the risk of error because any doubt as to Williams’ likelihood of reoffending must be resolved in his favor.

We thus conclude that defining the statutory term “likely” as “more likely than not” or “more probable than not” will not diminish the required high level of proof. The instruction given by the district court not only comports with the statutory definition, due process requires nothing more. Williams’ argument to the contrary is without merit.

B. Less restrictive alternative. Williams also challenges the court’s mar-shalling instruction. He has consistently maintained that he could be prevented from reoffending through placement in a community-based facility rather than in the sex offender treatment unit at Oak-dale. He claimed at trial, and urges on appeal, that chapter 229A implicitly provides for a less-restrictive-alternative defense. The court allowed Williams, over the State’s objection, to present evidence on this point, but refused to instruct the jury on the specific defense. Williams contends the court’s refusal violated his right to present a defense.

Williams’ proposed instruction stated, in pertinent part:

If you find that the State has shown beyond a reasonable doubt that Harold Williams is a sexually violent predator, you must further find that[:]
1. The State has shown beyond a reasonable doubt that unless Harold Williams is confined in a secure facility, he will engage in the predatory acts as defined in these instructions;
2. That the State has proven beyond a reasonable doubt that ... there are no less restrictive alternative treatment facilities or programs in which to place Harold Williams to protect society.

Williams also requested a special verdict form requiring the jury to answer the following question: “Has the State proven beyond a reasonable doubt that [Williams] must be kept only in a secure facility to prevent him from engaging in predatory acts constituting sexually violent offenses?” The court denied Williams’ request. Instead, the court gave the following instruction:

To find the Respondent is a sexually violent predator, each of the following elements must be proved beyond a reasonable doubt[:]
1. The Respondent has been convicted of a crime of sexual violence;
2. The Respondent suffers from a mental abnormality;
3. That such mental abnormality makes the Respondent likely to engage in predatory acts constituting sexually violent offenses if not confined in a secure facility.
If you find from the evidence that each of these elements has been proven beyond a reasonable doubt, then it will be your duty to return a verdict that the Respondent is a sexually violent predator.

In support of the court’s instruction, the State contends that chapter 229A does not authorize commitment to anything less than a secure facility. Under the statute, the jury’s choices are limited: civil commitment in a secure facility or release. Because the fact finder’s duty is limited, the State argues, the trial court has no authority to read into the SVP statute less-restrictive treatment options.

It is axiomatic that courts must correctly instruct the jury on the law pertaining to material issues supported by evidence in the record. State v. Monk, 514 N.W.2d 448, 451 (Iowa 1994). And a defendant — or, in this ease, a respondent — is “entitled to have instructions presented relating to any theory of defense for which there is foundation in the evidence if he or she makes a timely request and it sets out a correct declaration of the law.” Id. (quoting State v. Stewart, 445 N.W.2d 418, 421 (Iowa Ct. App. 1989)).

We are convinced, as was the district court, that Williams’ proposed instruction is not a correct statement of the law. Essential to any finding that an accused is a sexually violent predator is a finding that the person’s mental abnormality makes him “likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.” Iowa Code § 229A.2(9) (Supp. 1999) (emphasis added). The “secure facility” issue is part and parcel of the SVP finding under the statute, not a separate issue addressed after determining the respondent is a sexually violent predator.

Nor do we find any support in the statute for Williams’ claim that the State must prove beyond a reasonable doubt that no less-restrictive alternative treatment facilities are available. The statute simply does not contemplate placement in a less-restrictive facility. Any evidence presented by Williams to show that he could be kept from reoffending by placement in other than a secure facility generated the possibility of doubt on a crucial element of the State’s case. But such defense did not burden the State with an additional proof requirement not mentioned in chapter 229A.

Because Williams’ proposed instruction misstated the law, the trial court committed no error when it refused to give the instruction to the jury.

V. Conclusion.

We affirm the judgment of commitment entered by the district court on the jury’s verdict in accordance with Iowa Code section 229A.7(3) (Supp. 1999). Our affir-mance includes approval of the court’s decision — challenged by the State on its cross-appeal — to restrict the presentation of victim testimony except on rebuttal. Although it has no bearing on the judgment in this case, we reverse on the State’s cross-appeal to the extent the court erroneously believed chapter 229A permits a less-than-unanimous verdict to avoid mistrial on the question of commitment or release.

AFFIRMED ON APPEAL; CROSS-APPEAL AFFIRMED IN PART AND REVERSED IN PART.

      . All statutory references shall be to the 1999 Code of Iowa unless otherwise indicated.

      . Under the statute, a "sexually violent predator” is defined as
      a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.
      Iowa Code § 229A.2(9) (Supp. 1999).


author: CADY, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. Tammy Jo REINIER, Appellant.
    No. 99-1963.
    Supreme Court of Iowa.
    May 31, 2001.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
   CADY, Justice.

This case presents the question whether a warrantless entry of a home by police officers based upon a “knock and talk” investigative encounter with the homeowner followed by a full search of the home conducted pursuant to the consent of the homeowner violated the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. The district court found both the initial entry into the home by police and the subsequent search were accomplished by voluntary consent. The court of appeals determined the initial entry into the home by police was illegal, but the subsequent search was done with voluntary consent. On our review, we conclude the illegal entry into the home, in combination with the other surrounding circumstances, rendered the consent to search involuntary. We vacate the decision of the court of appeals, reverse the district court, and remand the case to the district court for further proceedings.

I. Background Facts and Proceedings.

In late November 1998, Des Moines police received a complaint of drug activity at a Kwik Shop on the east side of Des Moines. The complaint indicated Tammy Reinier, a Kwik Shop employee, was selling drugs. Two officers from the vice and narcotics unit of the police department were assigned to investigate the complaint. The officers initiated their investigation by conducting a surveillance of Reinier’s home. Over the course of a week, however, they were unable to observe any evidence of drug activity at the house. The officers then decided to conduct a “knock and talk” investigation of Reinier’s home.

On December 2, 1998, at approximately 6:00 p.m., the officers approached Reinier’s house and knocked on the front door. They wanted to determine if Reinier would talk about the complaint and give them consent to search her house for evidence of drug activity.

The front door of Reinier’s house included a screen door which opened out and a heavy-solid wood door which opened into a room described as a porch. The wood door was secured with a deadbolt lock. The outside walls of the porch had the same siding as the remainder of the house and the roof of the porch also conformed to the roof of the remainder of the house. The porch had glass-encased windows with blinds. There was another heavy wooden door which led from the porch area into the living room of the home.

The officers were not in uniform at the time of the “knock and talk” encounter. It was dark outside. One of the officers carried a consent-to-search form attached to a clipboard.

When Reinier walked into the porch to open the front door, she closed the door leading to the living room to prevent her dog from coming onto the porch. She then opened the wooden door to the porch. The officers felt Reinier invited them into the porch by opening the door. They described Reinier as opening the door “wide.” Without asking to enter, the two officers stepped inside the porch. As they entered, Reinier appeared curious and surprised at their presence. The officers then identified themselves as Des Moines police and explained to Reinier that they were investigating a narcotics complaint involving methamphetamine. One of the officers told Reinier they preferred to investigate drug complaints by going to the suspect’s home and, instead of obtaining a warrant, simply looking around the house to rule out bogus or petty use complaints. The officers further indicated they were concerned with major drug dealers and drug labs, and asked Reinier if they could look around her house and search the basement for a drug lab. Before Reinier responded, one of the officers also asked if she had any drugs or drug paraphernalia in the house. She acknowledged that she did. The officers reiterated that they were not concerned about the petty use of drugs and again asked to look through the house. The officers also told Reinier that because she had acknowledged that there were drugs inside, they now had probable cause to apply for a warrant. Reinier consented to a search.

The officers then asked Reinier if they could go into the living room where there was more light. Reinier invited the officers into the living room. The officers immediately observed a scale and a bag of methamphetamine on the coffee table when they walked into the living room. One of the officers read the written consent form to Reinier and she signed the form after again reading it herself. A subsequent search of the house revealed additional drugs other than those observed in the living room.

Reinier was charged with two counts of possession of a controlled substance with intent to deliver, conspiracy to deliver drugs, possession of marijuana, and failure to possess a drug tax stamp. She moved to suppress the drugs found in her home. The district court denied the motion and the case proceeded to a bench trial. The court found Reinier guilty of all charges except the conspiracy count and sentenced her to a term of incarceration not to exceed twenty-five years on each of the two possession with intent to deliver counts, in addition to shorter prison terms on the other drug offenses, to be served concurrently.

Reinier appealed. We transferred the case to the court of appeals, which determined that the district court correctly denied the motion to suppress because the search of the home was accomplished by voluntary consent. We granted further review.

II. Scope of Review.

We employ a de novo review when resolving issues involving constitutional claims. See State v. Campbell, 326 N.W.2d 350, 352 (Iowa 1982). The record we consider includes both the evidence from the trial as well as from the suppression hearing. State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989).

III. Search of the Premises.

Law enforcement officials pursue a variety of investigative techniques in an effort to gather information in the course of investigating crimes and complaints of crimes, including searching property for evidence of criminal activity. While courts recognize the vital need for law enforcement agencies to gather information and evidence of crimes and to utilize new techniques and technology to do so, the Fourth Amendment exists to protect the right of the people to be free from unreasonable searches and seizures by government officials and limits the means police can use to gather evidence. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This same fundamental right of privacy is found in article I, section 8 of the Iowa Constitution.

It is axiomatic that the chief evil sought to be addressed by the Fourth Amendment was the physical entry of the home. United States v. United States Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972). Although the Fourth Amendment protects the privacy of an individual in a variety of settings, none is “more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.” Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639, 653 (1980). The special sanctity of the home has deep roots in our history, and “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion” lies at the very core of the Fourth Amendment. Id. at 589-90, 100 S.Ct. at 1382, 63 L.Ed.2d at 653 (citation omitted). Thus, “[i]t is a ‘basic principle of Fourth Amendment law’ that [all] searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 586, 100 S.Ct. at 1380, 63 L.Ed.2d at 651 (citation omitted); see Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 742 (1984).

The principal protection against the unreasonable intrusion into a home by government officials is the warrant requirement of the Fourth Amendment. See United States Dist. Ct., 407 U.S. at 313, 92 S.Ct. at 2134, 32 L.Ed.2d at 764. The judicial scrutiny required for the issuance of a warrant helps minimize the risk of unreasonable intrusion into the privacy of a home. Payton, 445 U.S. at 585, 100 S.Ct. at 1379-80, 63 L.Ed.2d at 650. Thus, searches of homes conducted outside the judicial process are per se unreasonable and will not be sanctioned, “subject only to a few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971) (citation omitted).

One well-established exception to the warrant requirement is a search conducted by consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854, 858 (1973). A warrantless search conducted by free and voluntary consent does not violate the Fourth Amendment. See id.; State v. King, 191 N.W.2d 650, 655 (Iowa 1971).

Consent is considered to be voluntary when it is given without duress or coercion, either express or implied. See Schneckloth, 412 U.S. at 225-26, 93 S.Ct. at 2047, 36 L.Ed.2d at 862. This test balances the competing interests of legitimate and effective police practices against our society’s deep fundamental belief that the criminal law cannot be used unfairly. See id. at 224-25, 93 S.Ct. at 2046-47, 36 L.Ed.2d at 861. Thus, the concept of vol-untariness which emerges as the test for consent represents a fair accommodation of these interests and values. See id. In the end, the inquiry becomes a question of fact based upon the totality of the relevant circumstances. See id. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862. The State is required to establish the consent was voluntary by a preponderance of the evidence. State v. Garcia, 461 N.W.2d 460, 462 (Iowa 1990).

Two questions often arise when the government relies on consent as an exception to the warrant requirement to search a home. The first question is whether the consent was given. The second is whether it was voluntary. The first question turns on whether the defendant manifested his or her consent, while the second question examines the validity of the consent given.

A number of factors have been developed to help determine the validity of the consent given. These factors consider both the circumstances surrounding the consent given and the characteristics of the defendant. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862. None of the factors, however, are individually controlling in most instances, but must be considered in combination with all of the circumstances. See id. at 227, 93 S.Ct. at 2047, 36 L.Ed.2d at 862; United States v. Bye, 919 F.2d 6, 8-9 (2d Cir.1990). These factors include knowledge by the defendant of the right to refuse to consent. Schneckloth, 412 U.S. at 226-27, 93 S.Ct. at 2047, 36 L.Ed.2d at 862; State v. Lamp, 322 N.W.2d 48, 53 (Iowa 1982), overruled on other grounds by State v. Heminover, 619 N.W.2d 353 (Iowa 2000). Another factor is whether police asserted any claim of authority to search prior to obtaining consent. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797, 801-02 (1968) (consent not voluntary when official claims he possesses a search warrant); State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983) (mere acquiescence to a search in the face of a claim of authority does not establish voluntary consent). The show of force or other types of coercive action by police are additional factors to consider. See State v. Holland, 389 N.W.2d 375, 381 (Iowa 1986). The use of deception by police without a justifiable and reasonable basis is also considered. State v. Ahart, 324 N.W.2d 317, 319 (Iowa 1982). Furthermore, a threat by police to obtain a search warrant and forcibly execute it is a factor to consider when the police lack a sufficient basis to obtain a warrant. See State v. Owens, 418 N.W.2d 340, 343-44 (Iowa 1988). The existence of illegal police action just prior to the time the consent is given is also an important factor. See State v. Howard, 509 N.W.2d 764, 767-68 (Iowa 1993) (considered police officer’s promises of leniency). Other factors are also considered. See generally 3 Wayne R. LaFave, Search and Seizure § 8.2, at 634-713 (3d ed.1996) [hereinafter LaFave] (discussing factors bearing upon the validity of consent).

A. “Knock and Talk Encounter.”

In this case, we begin our analysis of the surrounding circumstances by considering the general investigative procedure utilized by the police which culminated in the consent given by Reinier to search her house. This procedure was characterized by police as a “knock and talk” investigation, which involves officers knocking on the door of a house, identifying themselves as officers, asking to talk to the occupant about a criminal complaint, and eventually requesting permission to search the house. See United States v. Cruz, 838 F.Supp. 535, 537 (D.Utah 1993). If successful, it allows police officers who lack probable cause to gain access to a house and conduct a search. See United States v. Miller, 933 F.Supp. 501, 505 (D.N.C.1996).

The “knock and talk” procedure has generally been upheld as a consensual encounter and a valid means to request consent to search a house. See United States v. Cormier, 220 F.3d 1103, 1110-09 (9th Cir.2000); United States v. Taylor, 90 F.3d 903, 909 (4th Cir.1996); United States v. Kim, 27 F.3d 947, 951 (3d Cir.1994); United States v. Tobin, 923 F.2d 1506, 1511-12 (11th Cir.1991); Cruz, 838 F.Supp. at 543; State v. Green, 598 So.2d 624, 626 (La.Ct.App.1992); State v. Land, 106 Or.App. 131, 806 P.2d 1156, 1157-59 (1991). But see United States v. Jerez, 108 F.3d 684, 691-93 (7th Cir.1997). The general response to the procedure has been summarized as follows:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964). Yet, when consent to search is obtained as a result of the “knock and talk” investigative encounter, the validity of the encounter ultimately hinges on the voluntariness of the consent given. See Miller, 933 F.Supp. at 505. Thus, the specific circumstances surrounding the “knock and talk” procedure become part of the totality of the circumstances to consider in determining if the consent eventually given was voluntary. See id.

Reinier claims the particular “knock and talk” procedure utilized by police in this case did not result in a consensual encounter, and her specific consent to search given to police officers was not voluntary. She asserts the police entered the porch of her home without her permission, and used intimidation and coercion to elicit her consent to search the house. Thus, we must not only consider the validity of the consent given to search, but also whether there was consent for the officers to initially enter the home.

A search occurs under the Fourth Amendment any time the government intrudes upon a person’s legitimate expectation of privacy. State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). If Reinier had a reasonable expectation of privacy in the porch of her home, the entry by police after Reinier opened the door could only be reasonable under the Fourth Amendment if she gave consent.

The porch of Reinier’s house was just like any other portion of her house. It had glass-encased windows covered with blinds. The entrance to the porch had a solid wood door with a deadbolt lock and a screen door. Reinier stored personal belongings in the porch and kept the wood door locked at night. These circumstances reveal Reinier maintained an expectation of privacy which society clearly recognizes as reasonable. Thus, entry into the area by police constituted a search under the Fourth Amendment, and we must determine if consent was given to enter the porch based on the manner Reinier opened the door after the officers knocked on it.

B. Consent to Enter Home.

Consent does not necessarily need to be given verbally. State v. Phillips, 218 Wis.2d 180, 577 N.W.2d 794, 802 (1998). It may be found not only by words, but by gestures and non-verbal conduct. Id.; United States v. Griffin, 530 F.2d 739, 742 (7th Cir.1976); see United States v. Donlon, 909 F.2d 650, 655 (1st Cir.1990), overruled on other grounds by Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 8139, 111 L.Ed.2d 638 (1990); United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir.1975); People v. James, 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135, 1138-39 (1977); State v. Dawson, 233 Mont. 345, 761 P.2d 352, 356-57 (1988). But see State v. Harris, 642 A.2d 1242, 1246-47 (Del.Super.Ct.1993). The officers in this case could not recall if they actually engaged in any conversation with Reinier before they stepped onto the porch, but felt she invited them into the porch because it was cold outside and she opened the door wide in response to their knock. The officers acknowledged they did not identify themselves as police officers or announce their business before stepping onto the porch.

The act of opening a door in response to a knock could under certain circumstances constitute consent. Griffin, 530 F.2d at 743 (leaving door open and stepping back was invitation for officers to enter); Turbyfill, 525 F.2d at 59 (opening door and stepping back constitutes implied invitation to enter); Dawson, 761 P.2d at 356-57 (same). But see Harris, 642 A.2d at 1246-47 (shrugging of shoulders insufficient gesture of consent). However, the officers in this case were unable to recall the specific details of the event that would support a finding of consent. The State carried the burden of proof on this issue, and the evidence was insufficient to objectively show Reinier consented by opening the door. In fact, the officers acknowledged Reinier appeared surprised when they entered the porch without an oral request. This reaction was understandable and does not support consent. It would be more reasonable for an occupant of the home to wait for a stranger at the door to be identified before inviting the person into the home, especially during the nighttime hours, just as it would be reasonable for two strangers to identify themselves and ask to be invited in before stepping into the house. See United States v. Shaibu, 920 F.2d 1423, 1427-28 (9th Cir.1990) (no implied consent where defendant’s conduct was not preceded by a police request for admission into residence). We conclude the initial entry into the home by the police officers was not consensual and was unreasonable under the Fourth Amendment.

Our determination that the initial entry by police into the porch was unreasonable becomes a factor to consider in determining whether the subsequent search consented to by Reinier was voluntary. Although the illegal entry was limited to the porch and did not directly contribute to the subsequent consent, it did imply authority to enter the home. It “had a quality of purposefulness.” Brown v. Illinois, 422 U.S. 590, 605, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416, 428 (1975). Thus, we must consider the impact of this factor on the subsequent consent given by Reinier for the officers to search the remainder of the house.

In examining the presence of coercive tactics to determine the voluntariness of the consent to search a house, it is important to take subtle police actions into account as well as direct actions. The form of coercion which bears on the volun-tariness of consent, whether direct or implied, is of no consequence. Griffin, 530 F.2d at 742; see Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48, 36 L.Ed.2d at 862-63 (consent not voluntary when a product of duress or coercion, either expressed or implied). “Subtle coercion, in the form of an assertion of authority ... by the law enforcement officers [can] make what appears to be a voluntary act an involuntary one.” Griffin, 530 F.2d at 742; see Schneckloth, 412 U.S. at 229, 93 S.Ct. at 2049, 36 L.Ed.2d at 864.

The illegal initial entry into the house was limited to the area of the porch and did not immediately precede the subsequent consent to search the house. On the other hand, the illegal entry subtly implied authority by police. It gave the impression the police were authorized to act in the manner that they did. More importantly, the illegal entry must be considered in conjunction with the events that followed.

C. Other Factors Bearing on Volun-tariness of Consent.

Once inside the porch, the police explained to Reinier that they preferred to investigate drug complaints by simply looking around the home instead of getting a warrant. This explanation tended to imply that the police were authorized to act in a manner consistent with their usual method of operation. See United States v. Penar-Saiz, 161 F.3d 1175, 1177-78 (8th Cir.1998) (consent to search not voluntary when officers stopped defendant at airport without reasonable suspicion and said “This is what we do. We talk to people, we search people’s bags, we pat-search people. This is what we do every day.”). It implied the search was an authorized part of the normal overall investigative encounter. Thus, prior to the time Reinier gave her consent, the police not only asserted authority to enter the house but they also asserted authority to search. These two factors combine to weigh against a finding of voluntary consent. The same purposefulness projected by the illegal entry into the home continued to be projected by the officers’ explanation of their standard procedure of operation. The actions by police can be best explained as a means directed to obtain acquiescence to search rather than the need for police to get out of the cold or for homeowners to know the preferred method of a police investigation. Additionally, there is another factor which weighs against a finding that the consent was voluntary.

The officers told Reinier prior to obtaining her consent that they were not looking for small quantities of drugs but “meth labs” and “major dealers.” These comments bear upon the voluntariness of the consent because they are limitations on the nature of the crime under investigation and the objects sought by the search. See 3 LaFave § 8.2(n), at 707. The comments also tend to minimize the seriousness of possessing drugs for personal use or casual sales, and subtly create a false belief that no adverse consequences will result from a search if there is no meth lab in the house and the occupants are not major dealers. Howard, 509 N.W.2d at 766-67 (consent to search was involuntary where officer told defendant he was only interested in retrieving property, not using it as evidence for prosecution). These comments by police constitute a subtle form of deception with no reasonable basis.

There is other evidence which tends to support voluntary consent. Reinier’s consent was preceded by an acknowledgement that drugs could be found in the house. See 3 LaFave § 8.2(g), at 676. Furthermore, the officers did not mislead Reinier when they told her, after she acknowledged that drugs were in the house, that they had probable cause to apply for a search warrant. Moreover, Reinier signed a written consent form. Yet, the acknowl-edgement of the presence of drugs and the written consent came after the officers had entered the house uninvited, explained their normal procedure for investigating drug complaints, and indicated drugs kept for personal use were not the subject of the search.

Considering the totality of the circumstances, we conclude the State failed to establish the consent to search was voluntary. In balancing the interests between effective and fair law enforcement, the legitimate practice of investigating criminal complaints by a “knock and talk” encounter can be successfully accomplished without the subtle coercive actions engaged in by police in this case. Police can request consent to enter and search a home in the course of investigating a complaint without intimidation, implied authority, or minimizing the consequences. We think the fair accommodation between the interest in effective law enforcement and our fundamental belief in fair law enforcement procedures requires this conclusion. Additionally, the legitimacy of the consent to search obtained from the occupant of the house during the course of a “knock and talk” encounter can be greatly enhanced by the absence of such conduct.

IV. Conclusion.

We conclude the search conducted by the police officers did not satisfy the consent exception to the warrant requirement and was done in violation of the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. We vacate the decision of the court of appeals, reverse the decision of the district court, and remand the case to the district court for further proceedings.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except CARTER and NEUMAN JJ., who dissent.

CARTER, Justice

(dissenting).

I dissent.

Irrespective of whether the entry of the police officers onto the enclosed porch area was without defendant’s consent, I am convinced that the record fully supports the district court’s finding that the subsequent entry into the home’s living area was made with her consent.

The type of construction that features an enclosed porch placed as a buffer to entry into the living area of a home is quite common among older homes in this state. Such porches serve as a place where conversations may be had with delivery persons, peddlers, bill collectors, and others who come to the house with the intention of briefly conversing with the occupants. The entry onto the porch, which is criticized in the majority opinion, occurred in Iowa in December. It does not seem out of the ordinary that the discussions between the police and the defendant took place inside the enclosed porch area rather than through an open door, with the police standing in the cold.

In Schneckbth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Court discussed the element of volun-tariness in the consent-to-search context. In discussing its past decisions, involving that issue, the Court stated:

[I]f under all the circumstances it has appeared that the consent was not given voluntarily — that it was coerced by threats or force, or granted only in submission to a claim of lawful authority— then we have found the consent invalid and the search unreasonable.

Schneckloth, 412 U.S. at 233, 93 S.Ct. at 2051, 36 L.Ed.2d at 866. There is no evidence that the officers who engaged defendant in conversation on the porch employed any force. Nor did they issue any threats other than to advise her that if she did not consent they would seek a warrant. The message which that statement conveys is that the police had no right of entry without a warrant. This negates any suggestion that their entry into the living portion of the home was under claim of lawful authority.

Because I find that the challenged entry into defendant’s home was freely consented to, I would affirm the decision of the court of appeals and the judgment of the district court.

NEUMAN, J., joins this dissent.

      . There was no direct evidence either at trial or at the suppression hearing to explain how the screen door was opened, or who opened it. The evidence implies, however, that the officers had opened the screen door before Reinier opened the wooden door.

      . The other well-recognized exception to the warrant requirement for the search of a home is exigent circumstances. See Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38, 45 (1981). There is no claim made of any exigent circumstances in this case to justify a warrantless entry.

      . The illegal action by the police in entering the porch during the "knock and talk” procedure actually requires a dual analysis. When a claim of a consensual search is preceded by illegal police action under the Fourth Amendment, the government must not only show the voluntariness of the subsequent consent under the totality of the circumstances, but must also establish a break in the illegal action and the evidence subsequently obtained under the so-called "fruit of the poisonous tree” doctrine. United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.1994); see 3 LaFave § 8.2(d), at 655-56. While the two tests overlap, they can produce different results and must be considered independently. 3 LaFave § 8.2(d), at 655-56. The government must show any taint from the illegal search has been purged or attenuated not only because of the possible effect on the voluntariness of the defendant’s consent, but also to effectuate the exclusionary rule. Melendez-Garcia, 28 F.3d at 1054. In this case, because we conclude the consent was not voluntary under the totality of the circumstances, it is unnecessary for us to additionally consider whether there was a break in the illegal entry and the subsequent consent. See Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416, 424 (1975) (consent to search following illegal seizure is valid only if the evidence is found by means sufficiently distinguishable so as to purge the primary taint).


text:
    Harlan OAKGROVE, Relator, v. MCTO, Self Insured, Respondent, and Commissioner of Minnesota Department of Labor and Industry, Intervenor.
    No. C2-01-581.
    Supreme Court of Minnesota.
    June 25, 2001.
    David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, for Relator.
    Roger H. Willhaus, Pustorino, Tilton, Parrington & Lindquist, P.L.L.C., Minneapolis, for respondent employer.
    Mike Hatch, Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul, for intervenor Minnesota Department of Labor and Industry.
   ORDER

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 9, 2001, be, and the same is, affirmed without opinion. See Minn.R.Civ.App.P. 136.01, subd. 1(b).

BY THE COURT:

/s/ Joan Ericksen Lancaster Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    Orville RUPPERT, Respondent, v. SANDOZ/NORTHRUP KING and Liberty Mutual Insurance Company, Relators, and Special Compensation Fund, Intervenor.
    No. C3-01-637.
    Supreme Court of Minnesota.
    June 27, 2001.
    Roger H. Willhaus, Pustorino, Tilton, Parrington and Lindquist, LLP, Minneapolis, for Relator.
    Steven J. Drummond, Alexandria, for employee-respondent.
    Tad Jude, St. Paul, for Special Compensation Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 8, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice