author: AMUNDSON, Justice.

text:
    2001 SD 140
    In the Matter of the ESTATE OF Allen R. FOSS, Deceased.
    No. 21863.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Nov. 21, 2001.
    Rehearing Denied Jan. 9, 2002.
    William E. Coester, Milbank, SD, Attorney for appellant.
    George B. Boos of Boos & Grajczyk, LLP, Milbank, SD, Attorneys for appellee.
   AMUNDSON, Justice.

[¶ 1.] The trial court denied Linda Vnuck’s (Linda) claim against Allen Foss’s estate (Allen) for child support. Linda appeals. We affirm.

FACTS

[¶ 2.] Allen (deceased), and Linda were divorced on May 3, 1976, pursuant to a Judgment and Decree of Dissolution made and entered in the Ninth Judicial District Court of Minnesota in Beltrami County, Minnesota. According to the Minnesota decree, Allen was to pay a monthly sum of $210.00 in child support for the couple’s three minor children (Richard, born July 2, 1968 and Katherine and Kenneth, both born January 14, 1970). Allen only paid a portion of the child support. Somewhere between the years of 1980 and 1981, Allen left Minnesota and moved to South Dakota. He later remarried and continued to reside in South Dakota until his death. On June 30, 2000, Allen died without having paid Linda the child support arrearag-es he owed her. The record does not disclose that any action in any South Dakota or Minnesota court had been commenced by Linda to collect the past-due child support prior to Allen’s death.

[¶ 3.] Now, thirteen years after- Allen’s final child support payment was due, Linda commenced this action against Allen’s estate. The trial court held that the ten-year statute of limitation provided in SDCL 15-2-8(1) barred the claim.

[¶ 4.] Linda appeals raising the following issue:

Whether the trial court erred in denying Linda’s claim for child support arrearag-es by applying the ten-year statute of limitation of SDCL 15-2-8 rather than the twenty-year statute of limitation of SDCL 15-2-6.

STANDARD OF REVIEW

[¶ 5.] This case involves a question of statutory interpretation. “Statutory interpretation is a question of law, which we review de novo.” See Coble v. Hanson, 2001 SD 8, ¶ 5, 620 N.W.2d 772, 773 (citation omitted). Under the de novo standard of review, this Court gives “no deference” to the circuit court. In re Sales & Use Tax Refund Request of Media One, Inc., 1997 SD 17, ¶ 11, 559 N.W.2d 875, 878 (citation omitted).

DECISION

[¶ 6.] The trial court held the applicable statute of limitation is ten years as provided in SDCL 15-2-8 because the statutory scheme of 25-7-7.4 simply provides a proper procedure for enforcing orders from other states. The trial court stated “the only judgment to act upon here is the judgment and decree of divorce issued in Minnesota in 1976 ... [T]here being no South Dakota judgment, the ten year foreign statute of limitations would apply.”

[¶ 7.] Linda argues that the trial court should have applied SDCL 15-2-6 to her claim for past-due child support, which would have given her a twenty year statute of limitation in which to enforce her judgment against Alen. SDCL 15-2-6 provides, in pertinent part:

Except where, in special cases, a different limitation is prescribed by statute, the following civil action ... can be commenced only within twenty years after the cause of . action shall have accrued: (1) An action upon a judgment or decree of any court of this state.

[¶ 8.] Linda believes that the twenty-year statute of limitation is applicable because of the language of SDCL 25-7-7.4, which provides:

Any payment or installment of support under an order for support, as defined by § 25-7A-1, whether entered by a court or an administrative entity of this state or of any other state or jurisdiction, which is unpaid after the date it is due, is a judgment by operation of law, with the full force, effect and attributes of a judgment of this state, including enforceability, and is entitled, as a judgment, to full faith and credit in this state.

[¶ 9.] She argues that the words “judgment as a matter of law,” make the Minnesota decree equivalent, in all respects, to a judgment granted by a South Dakota court without having been filed in this state. She argues that child support installments due by anyone residing in South Dakota to a non-resident of the state should be treated as a South Dakota judgment, falling under the ambit of SDCL 15-2-6 and the twenty-year statute of limitation.

[¶ 10.] In this case, the record does not contain any evidence that Linda filed a Minnesota judgment with a South Dakota court or that Linda attempted to enforce the past due support in either South Dakota or Minnesota. Linda merely filed a Statement of Claim against Allen’s estate after his death based on the Judgment and Decree of Dissolution issued by the Minnesota Court in 1976. Thus, there is no “action upon a judgment or decree of any court of this state ” as required for the implementation of the twenty-year statute of limitations. See SDCL 15-2-6 (emphasis supplied).

[¶ 11.] Although Linda is correct in stating that an order for support from Minnesota becomes a judgment as a matter of law, it does not automatically become a'judgment or decree of this state. The fact remains that a Minnesota court issued the order stating Allen should pay child support, not a South Dakota court. Our laws provide ample methods for registering foreign child support judgments of this very nature. This State’s Uniform Interstate Family Support Act outlines the procedure for registering an out-of-state child support judgment in South Dakota. South Dakota Codified Law 25-9B-602, entitled “Procedure to register order for enforcement,” provides the following:

(a) A support order of another state may be registered in this state by sending the following documents and information to the appropriate tribunal in this state: (1) A letter of transmittal to the tribunal requesting registration and enforcement; (2) Two copies, including one certified copy, of all orders to be registered, including any modification of an order; (3) A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrear-ages; (4) The name of the obligor and, if known: (i) The obligor’s address and social security number; (ii) The name and address of the obligor’s employer and any other source of income of the obligor; and (iii) A description and the location of property of the obligor in this state not exempt from execution; and (5) The name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted, (b) On receipt of a request for registration, the registering tribunal shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form, (c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other laws of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.

[¶ 12.] We have previously acknowledged that “another state’s support order registered in South Dakota may be treated the same as an order originating here.” See, e.g., Taecker v. Taecker, 527 N.W.2d 295, 299 (S.D.1995) (citing SDCL Ch 25-9B, Uniform Interstate Family Support Act; SDCL Ch. 15-16A, Enforcement of Foreign Judgments) (emphasis added). Linda could have used these procedures for registering her foreign child support order, entitling her to have the judgment treated as a judgment by operation of law as if it had originated in this state. See SDCL 25-7-7.4. Linda, however, failed to utilize the proper procedures so that the Minnesota support order could be treated as originating in South Dakota. Therefore, the trial court did not err in its selection of the applicable statute of limitations.

[¶ 1SJ We affirm.

[¶ 14.] SABERS, Acting Chief Justice, and KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 15.] MILLER, Retired Chief Justice, was a member of the Court at the time this action was submitted, but was disqualified and did not participate.

      . Linda claimed that the estate owed her $26,620, plus interest and costs. She calculated this amount by multiplying the number of months Allen failed to pay child support times the amount owed for each of the children, then subtracting any support for their son, Richard, during the months that he lived with Allen.

      . We also find it important to note that our sister state of Minnesota has a statute requiring that full faith and credit be given to child support judgments of other states. See Minn Stat § 548.091 Subd la (stating that a child support judgment issued by a Minnesota court or in any other state "is a judgment by operation of law on and after the date it is due [and] is entitled to full faith and credit in this state and any other”) (amended by 2001 Minn Sess Law Serv 1st Sp Sess Ch 9(SF4) (West)). In conjunction with recognizing full faith and credit, however, it has extensive explanations within the statute on how to properly docket a child support judgment once it is obtained. See id. Subd. 2a (stating that after child support becomes a judgment by operation of law, the obligee or other proper authorities must file documentation identifying that the judgment exists, along with affidavits containing information on the obli-gor and an affidavit of service of notice of intent to docket the judgment). Thus, it appears that Linda failed to properly docket her child support judgment in Minnesota, the state that entered the original order.

      . The Uniform Enforcement of Foreign Judgments Act also provides an effective means for enforcing foreign judgments, while at the same time providing adequate notice to the courts and debtors. See SDCL 15-16A-1-15-16A-10. Under the Act, SDCL 15-16A-2 states:
      A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner.
      In addition to filing with the clerk of courts, the Act provides that debtors shall be given notice of the existing foreign judgment pursuant to SDCL 15-16A-5, which provides in part:
      Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket.
      Based on the filing and notice requirements of this Act, the legislature has made it abundantly clear that foreign judgments must become part of this state's court system before the judgment can be properly enforced.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Michael Allen NAUJOKS, Appellant.
    No. 00-1149.
    Supreme Court of Iowa.
    Nov. 15, 2001.
    Rehearing Denied Jan. 8, 2002.

      Mark C. Meyer, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, and Denver D. Dillard, County Attorney, for appellee.
   STREIT, Justice.

Michael Naujoks challenges the denial of his motion to suppress evidence of a large-scale theft operation gathered as a result of a warrantless search of the apartment where he was staying as an overnight guest. He also argues the search warrant later issued was defective because it violated Iowa Code section 808.3 (1999). Finally, he challenges the trial court’s nunc pro tunc order amending his conviction to burglary in the second-degree as a violation of the Double Jeopardy Clause of the Fifth Amendment. Because we find the officers were not justified in securing the apartment, we reverse in part the trial court’s denial of the motion to suppress. We also reverse the nunc pro tunc order and remand for a new trial.

I. Background Facts & Proceedings

On November 21,1999, at 9:00 a.m. Matthew Grennan awoke to find two strangers in his apartment. The men put clothes in Grennan’s gym bag and took money from his wallet. Grennan watched them go into the apartment building across the street carrying these items. The men left their apartment building several more times and entered neighboring apartments. They returned carrying several items, including stereo equipment, a television, and compact discs. On their last trip out, a third man joined the two men. Grennan called the police and described the thieves and loot.

The responding officers went into the apartment building across the street from Grennan’s. Upon hearing voices coming from apartment number one, the officers knocked on the door and spoke with two men in the apartment. The men lied twice about who was present. From their position standing in the open door of the apartment, the officers could see an unplugged television and stereo positioned on bar-stools. The officers saw a third man in the apartment and heard movement and other noises coming from inside. They secured the three known occupants, and put them in an empty room across the hall. The officers searched the apartment for other people present which led them to three others, including Naujoks, hiding in a locked bedroom. Grennan identified Nau-joks as one of the men who stole his clothes and money. On application for a search warrant, an associate judge issued a warrant based on the officers’ personal observations and the on-scene identification.

The State charged Naujoks with two counts of second-degree burglary in violation of Iowa Code sections 713.1 and 713.5. The court denied Naujoks’ motion to suppress the evidence concluding the officers had legitimate safety concerns to justify securing the apartment. The case was tried to the court and Naujoks was found guilty of two counts of third-degree burglary. The State filed a motion for order nunc pro tunc and the court granted it, amending the judgment to guilty on two counts of second-degree burglary. The court sentenced Naujoks to two concurrent indeterminate ten-year terms of imprisonment.

Naujoks appeals the judgment and sentences. He asserts the following: (1) the court erred in failing to suppress evidence derived from a warrantless search of the apartment where he was staying as an overnight guest; (2) the warrant application failed to comply with Iowa Code section 808.3, as it was not supported by an appropriate affirmation; and (3) the court violated his right to be free from double jeopardy when it changed the verdict.

II. Standard of Review

Naujoks raises two issues involving an alleged violation of a constitutional right. He first challenges the police officers’ warrantless entry into the apartment where he was staying as an overnight guest. Second, he challenges the validity of the search warrant. In assessing an alleged violation of a constitutional right, we review de novo the totality of the circumstances as shown by the entire record. State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000). We are not bound by the district court’s determinations, but we may give deference to its credibility findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). In reviewing the trial court’s ruling, we consider both the evidence presented at the suppression hearing and that introduced at trial. Id. An adverse ruling on a motion to suppress will preserve error for our review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).

III. Warrantless Search and Seizure

The Fourth Amendment of the United States Constitution secures the right of people to be free from unreasonable search and seizure. This court has adopted a two-step approach to determine whether there has been a Fourth Amendment violation. Breuer, 577 N.W.2d at 45. The first step requires us to determine whether the person challenging the war-rantless search has a legitimate expectation of privacy in the premises searched. Id. If we find the person has a legitimate expectation of privacy, we proceed to the second step which requires us to determine whether the State has “unreasonably invaded that protected interest.” Id.

A. Legitimate Expectation of Privacy

The right afforded by the Fourth Amendment is specific to the individual and may not be invoked by third persons. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473, 142 L.Ed.2d 373, 379 (1998). An individual challenging a warrantless search must demonstrate he possessed a legitimate expectation of privacy in the particular area searched. United States v. McCaster, 193 F.3d 930, 933 (8th Cir.1999). Specifically, he must show both a subjective and objective expectation of privacy. Id.

We determine whether a person has a legitimate expectation of privacy on a case-by-case basis. Breuer, 577 N.W.2d at 46. One relevant factor to consider is the location of the person seeking its safeguards. Carter, 525 U.S. at 88, 119 S.Ct. at 473, 142 L.Ed.2d at 379. A person’s home is covered by the protections of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908, 919 (1966). The courts have further held a legitimate expectation of privacy extends beyond a person’s home, to afford protection to even an overnight guest in their host’s home. Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85, 95 (1990). A guest does not have a legitimate expectation of privacy if he is on the premises merely to conduct a business transaction. Carter, 525 U.S. at 91, 119 S.Ct. at 474, 142 L.Ed.2d at 381.

Naujoks asserted he was an overnight guest in the apartment searched in both his motion to suppress and appellate brief. During these proceedings, the State has not challenged Naujoks’ status as an overnight guest, and has conceded his status. Though slight, the record indicates Naujoks was an overnight guest. As such, we conclude Naujoks had a legitimate expectation of privacy in the apartment. We now turn to the issue of the reasonableness of the police officers’ actions in entering the apartment without a warrant.

B. Reasonableness of Warrantless Entry

The Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution protect individuals against unreasonable searches and seizures. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). The essential purpose of the Fourth Amendment “is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents in order ‘to safeguard the privacy and security of individuals against arbitrary invasion ....’” State v. Loyd, 530 N.W.2d 708, 711 (Iowa 1995) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979)).

In examining the lawfulness of the officers’ actions, we must balance the parties’ respective interests. Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 950, 148 L.Ed.2d 838, 848 (2001); State v. Keehner, 425 N.W.2d 41, 44 (Iowa 1988) (citing Prouse, 440 U.S. at 653-54, 99 S.Ct. at 1396, 59 L.Ed.2d at 674). On the one hand, we consider Naujoks’ Fourth Amendment interests. On the other hand, we must also consider the promotion of legitimate governmental interests, including “realistic standards of law enforcement.” State v. Wiese, 525 N.W.2d 412, 415 (Iowa 1994), overruled on other grounds by Cline, 617 N.W.2d at 281 (quoting People v. Parisi, 393 Mich. 31, 35, 222 N.W.2d 757, 759 (1974)); Keehner, 425 N.W.2d at 44. This balancing test requires us to determine:

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

State v. Legg, 633 N.W.2d 763, 765 (Iowa 2001) (quoting State v. Hilleshiem, 291 N.W.2d 314, 316 (Iowa 1980)).

Searches and seizures are unconstitutional if they are unreasonable and reasonableness depends on the facts of the particular case. State v. Roth, 305 N.W.2d 501, 504 (Iowa 1981). Warrantless searches are per se unreasonable if they do not fall within one of the well-recognized exceptions to the warrant requirement. Canas, 597 N.W.2d at 492. Those exceptions include: (1) consent search; (2) search based on probable cause and exigent circumstances; (3) search of items in plain view; or (4) search incident to a lawful arrest. Cline, 617 N.W.2d at 282. The State must prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000).

Under the circumstances of this case, the reasonableness of the officers’ actions is determined by the presence or absence of probable cause and exigent circumstances. Legg, 633 N.W.2d at 770; State v. Brecunier, 564 N.W.2d 365, 367 (Iowa 1997). Probable cause is based on the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527, 544 (1983). If we find a basis for probable cause, we will then determine whether exigent circumstances existed to justify the warrantless entry.

1. Probable Cause

The standard for probable cause is whether a person of reasonable prudence would believe a crime has been committed or that evidence of a crime might be located in the particular area to be searched. State v. Poulin, 620 N.W.2d 287, 290 (Iowa 2000). Several facts are relevant to determine the merits of the probable cause issue. The man who answered the door lied to the officers. He said he was alone, but when questioned about other voices in the apartment, admitted that his roommate was present. Then, the roommate lied to the officers. The roommate said no one else was present in the apartment. However, another man quickly appeared bringing the total count of occupants to three. The third man would not cooperate or identify himself to the officers. Instead, he left the officers’ field of view and joined the roommate who had earlier retreated to the back of the apartment. As the officers spoke with the men, they noticed an unplugged television and stereo positioned on bar stools inside the apartment. As all this transpired, the officers heard movement and other noises inside the apartment.

We find ample evidence in the record to support a finding of probable cause to believe a crime had been committed and evidence of it was located in the apartment. The occupants’ lies about who was present in the apartment suggested they were trying to conceal the presence of other people. The officers had further support for probable cause when they saw the television and stereo equipment in the apartment. All of the items were unplugged and positioned on bar stools. The items seemed out of place. Furthermore, the items matched the description of those items Grennan saw the suspects carry out of one apartment building and back to their apartment. After the officers spoke with the occupants of apartment number one, it became clear there was a connection between the occupants of the apartment and the recent burglaries. We conclude there was probable cause that evidence of a crime was in the apartment.

2. Exigent Circumstances

We now turn to the issue of exigency, as probable cause alone is not sufficient to justify the officers’ warrantless search of the apartment. In determining whether exigent circumstances exist, we look to several factors. Brecunier, 564 N.W.2d at 367 (citing the test articulated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970)). For the purposes of a warrantless search and seizure, we have found exigent circumstances exist in the following situations: danger of violence and injury to the officers; risk of the subject’s escape; or the probability that, unless immediately seized, evidence will be concealed or destroyed. State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983).

The officers must have specific, articulable grounds to justify a finding of exigency. There is testimony from the officers they believed there was an officer safety concern. However, the legality of a warrantless search is not determined by the officers’ subjective beliefs. See Cline, 617 N.W.2d at 281 (citing State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996)). Rather, the reasonableness of the officers’ search is determined on an objective standard. See Cline, 617 N.W.2d at 280-82 (citing State v. Jones, 586 N.W.2d 379, 382 (Iowa 1998)). The following considerations are pertinent to our determination of whether exigent circumstances existed to justify an invasion of Naujoks’ reasonable expectation of privacy.

First, there is no evidence in the record to suggest the officers were faced with elevated circumstances of burglary justifying the warrantless search and seizure. There is no evidence that guns or any other weapons were involved. Moreover, the officers both testified that they had no information suggesting the occupants of the apartment were otherwise dangerous. The occupants had not made any threatening remarks or gestures towards the police officers. This situation did not involve any objective indication of fear of violence or jeopardy more than any other police encounter with persons suspected of criminal activity would involve.

Second, there is no evidence of risk of escape. The suspects were confined to the apartment unit. There were two officers outside of the apartment building guarding the window to apartment number one. These two officers were also watching the other entrances of the apartment complex. During the officers’ initial contact with the occupants of the apartment, the door was open such that the officers were able to see inside of the apartment. See Latham v. Sullivan, 295 N.W.2d 472, 478 (Iowa Ct.App.1980) (no risk of escape where posting officers outside door could have prevented any escape). At their position just outside of the apartment door, these officers would have been aware if anyone had left the apartment. At the time the officers first entered the apartment, a total of six officers were present at the scene. In addition to the police presence on the ground, a police helicopter was overhead monitoring the situation. Given the significant police presence at the scene, there could be no legitimate fear of escape.

Third, this is not a situation where the police officers were in hot pursuit of suspects. Hot pursuit describes the situation when the police are pursuing a suspect who is in the process of fleeing from a recently committed crime. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782, 787 (1967). We cannot, under the facts of this case, conclude the officers were in “hot pursuit” of the suspects allowing them to enter the protected area without a warrant.

We also reject the claim of exigent circumstances on the basis of potential destruction of evidence. The victim reported the suspects carried a television and stereo equipment back to their apartment. It would have been very difficult for the occupants of the apartment to destroy or disfigure these items in such way as to make identification of the serial numbers impossible. In addition to these larger items, a duffle bag, assorted clothing, compact discs, cash and a wallet containing an ATM debit card were stolen. This is not a case where drugs were involved which are easily destroyed by flushing them down the toilet or through ingestion. See, e.g., State v. Strong, 493 N.W.2d 834, 838 (Iowa 1992) (finding exigent circumstances where officers were confronted with a situation where delay to obtain warrant would cause destruction of evidence of narcotics through the digestive process). Though the police were aware smaller items were missing, they were only able to see the large items in the apartment. Even if some of the items were susceptible to destruction, given it was approximately ten o’clock in the morning, it would not have taken long to obtain a warrant.

Consequently, we cannot conclude there was sufficient evidence of exigent circumstances to justify the warrantless search and seizure. The record is devoid of an articulable basis to support a legitimate officer safety concern. We find only a mere assertion by one of the officers there was fear for officer safety. Beyond this assertion, we cannot find any indicia of danger. The officers were not in “hot pursuit” of the suspects. See Legg, 633 N.W.2d at 772 (finding exigent circumstances where officers were in hot pursuit of an intoxicated defendant who retreated to her garage). There was no legitimate concern for the potential destruction of evidence. See United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300, 305 (1976); see also Legg, 633 N.W.2d at 772. Finally, because the apartment was well guarded by police officers, there was no reason to fear the occupants’ escape.

From a societal standpoint, officer safety is important to us. However, it is not enough to simply assert a concern for the life or safety of an officer. Some reasonable indication of security concerns, other than unarticulated suspicions, is necessary before we can find exigent circumstances to justify a violation of a person’s Fourth Amendment rights. When we balance the legitimate government interests against Naujoks’ privacy-related rights, we find the officers’ conduct was not fair and reasonable. See State v. Johnson, 395 N.W.2d 661, 664 (Iowa Ct.App.1986). We reverse the district court’s denial of Nau-joks’ motion to suppress and remand for a new trial.

IV. Legality of the Search Warrant

It is necessary to address two issues regarding the legality of the issued search warrant. Given our finding the police officers illegally entered the apartment, we must determine if there is sufficient probable cause for the issued search warrant to stand. But first, we will address the issue regarding whether the application for the search warrant failed to comply with Iowa Code section 808.3.

A. Application for the Search Warrant

Naujoks attempts to invalidate the issued search warrant arguing it does not comply with the requirements of Iowa Code section 808.3. The relevant portion of this section provides, in part:

[a] person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person’s oath or affirmation which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist.

The application for the search warrant was prepared and signed by officer Been of the Cedar Rapids Police Department. An associate district court judge witnessed his signature. Naujoks contends there is a defect in the application with respect to the phrase, “WHEREFORE, the undersigned asks that a search warrant be issued.” The names of county attorney, Denver Dillard and assistant county attorney, Harold Denton, are printed after this phrase. Naujoks asserts it was assistant county attorney Denton who applied for the search warrant, rather than officer Been who prepared and signed the application and served as affiant. There is nothing in the record to indicate that assistant county attorney Denton was the affi-ant or applicant. Instead, the record reflects he reviewed the search warrant and approved it. The procedure used complies with Iowa Code section 808.3. We affirm.

B. Admissibility of Evidence

We concluded above the officers had sufficient evidence to constitute probable cause to apply for a search warrant. However, since the police officers were not justified in entering the apartment without a search warrant, any evidence or information obtained after the illegal entry is tainted evidence. Consequently such evidence may not form the basis of probable cause to issue a search warrant. “An unlawful search taints all evidence obtained in the search or through leads uncovered by that search and bars its subsequent use.” State v. Ahart, 324 N.W.2d 317, 318 (Iowa 1982) (citing State v. Swartz, 244 N.W.2d 553, 555 (Iowa 1976)); accord Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453-54 (1963). Thus, the tainted evidence is not admissible under the exclusionary rule. We must determine whether there is legally obtained evidence to constitute probable cause for the issued search warrant.

Before we turn to the merits of this issue, we will briefly examine the background and purpose of the exclusionary rule. Eighty-seven years ago the United States Supreme Court enunciated the exclusionary rule to discourage disregard for constitutional guarantees. The rule requires suppression at trial of evidence discovered as a result of illegal government activity. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). The concept was expanded to include other indirect evidence that was said to be “tainted” by the original illegality. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 321 (1920). Justice Frankfurter coined the phrase, “fruit of the poisonous tree,” to illustrate the concept of tainted evidence. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939). The purpose of excluding such evidence is twofold: to deter lawless police conduct and to protect the integrity of the judiciary. State v. Hamilton, 335 N.W.2d 154, 158 (Iowa 1983) (citing Brown v. Illinois, 422 U.S. 590, 599-600, 95 S.Ct. 2254, 2259-60, 45 L.Ed.2d 416, 424-25 (1975)).

There are three exceptions to the exclusionary rule. One exception permits use of certain evidence when circumstances independent of the initial illegality have so attenuated the causal connection as to purge the taint of the unlawful police action. Hamilton, 335 N.W.2d at 158. Another exception to the exclusionary rule admits evidence, even though it was unlawfully obtained, if the government can show the discovery of the evidence by lawful means was inevitable. Id.; see, e.g., Brewer v. Williams, 430 U.S. 387, 406 n. 12, 97 S.Ct. 1232, 1243 n. 12, 51 L.Ed.2d 424, 441 n. 12 (1977). Evidence may also be admitted if the discovery of the evidence can be traced to a source independent of the originally illegally obtained fruits. Id.; see, e.g., Wong Sun, 371 U.S. at 488, 83 S.Ct. at 418, 9 L.Ed.2d at 455.

These exceptions to the exclusionary rule are based on the belief:

[t]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position [than] they would have been in if no police error or misconduct had occurred.

State v. Seager, 571 N.W.2d 204, 211 (Iowa 1997) (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387-88 (1984)). If one of the three exceptions to the exclusionary rules applies, the challenged evidence is admissible because to exclude such evidence would “put the police in a worse position than they would have been in absent any error or violation.” Id.

Now, turning to the particular facts of this case, we must determine whether the information offered in the application for the search warrant was legally obtained by the police officers. We first look to the facts cited in the application for the search warrant. Then we must establish how the officers obtained those facts.

We find, upon reviewing the application, the associate judge based her decision to issue a search warrant on the following information. The police officers spoke with the victim, Grennan, who described the physical appearance of the thieves. One of the occupants seen in the apartment matched the description of a suspect given by Grennan. Grennan also described the stolen items and the items he saw the suspects carry out of other apartments and into apartment number one. These items included a television, stereo equipment, and assorted clothing. The officers went to apartment number one and spoke with the man who answered the door. As the officers stood just outside the doorway to the apartment, they could see a television and stereo equipment positioned on bar stools. The items were unplugged and looked out of place. Moreover, the items matched Grennan’s description of certain stolen items. When the officers asked the occupants who owned the electronic equipment, one of the men responded he had no idea where the items came from. The occupants also lied numerous times about who was present in the apartment. They did not cooperate with the officers and refused to identify themselves. Two of the occupants retreated to the back of the apartment. The officers contacted other victims who reported additional stolen items. The application included several attachments listing all of the stolen items from the various victims.

These above facts were all obtained through the officers’ observations prior to the illegal entry. The following facts were also included in the application for a search warrant, but they were obtained after the officers’ illegal entry. The officers entered apartment number one and identified six people. They were detained in a vacant room of the apartment building. The officers brought Grennan to this room where he identified two men, including Naujoks, as the thieves who were earlier in his apartment. The two men were subsequently arrested for burglary.

The issue is whether the illegal entry tainted all of the information in the application for the search warrant. The application included evidence of stolen property in the apartment. This information was not discovered as a result of the illegal entry. Rather, the suspicious items were in plain view even before the officers illegally crossed the threshold of the apartment. The officers personally observed one of the occupants matched Grennan’s description of the thieves. Before the officers secured the apartment, they noted the occupants’ lies and other suspicious behavior. Other than Grennan’s identification of the defendants, the rest of the evidence was legally discovered through the officers’ personal observations prior to the warrant-less entry. All of the evidence, other than the on-scene identification, was therefore properly considered by the associate judge in her decision to issue a search warrant because the police officers legally obtained the evidence.

“When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue.” James v. United States, 418 F.2d 1150, 1151 (D.C.Cir.1969). “If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admitted.” Id. at 1152.

It is amply demonstrated that Grennan’s identification of the suspects on the day of the crime was erroneously considered because it was derived as a result of the warrantless entry. However, under these facts, absence of the tainted evidence does not create a “grave doubt” the warrant would not have been issued without it. See United States v. Nelson, 459 F.2d 884, 895 (6th Cir.1972). In reaching this conclusion, we do not dismiss the significance of Grennan’s on-scene identification of the defendants. Rather, given the facts before us, we conclude the remaining untainted evidence substantial enough to constitute probable cause to issue the search warrant. The State may retry Naujoks without the use of the tainted evidence.

Y. Double Jeopardy

The State charged Naujoks with two counts of second-degree burglary. There was evidence supporting the charges of second-degree burglary. However, the trial court found Naujoks guilty of two counts of third-degree burglary. The State filed a motion for order nunc pro tunc to clarify the degree of the convictions, and the court granted the motion. The court issued an order nunc pro tunc finding Naujoks guilty of two counts of second-degree burglary.

One purpose of a nunc pro tunc order is to correct clerical errors. Iowa R.Crim. P. 22(3)(g); State v. Suchanek, 326 N.W.2d 263, 265-66 (Iowa 1982). A clerical error is one that is not the result of judicial reasoning and determination. Smith v. State , 801 S.W.2d 629, 632 (Tex.Ct.App.1991). An order nunc pro tunc cannot be used to remedy an error in judicial thinking, a judicial conclusion, or a mistake of law. Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969).

The State now agrees the order nunc pro tunc violated Naujoks’ right to be free from double jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This clause protects against successive prosecutions after acquittal or conviction. In the present case, Naujoks was found guilty of two counts of third-degree burglary. Having been found guilty of third-degree burglary, Naujoks could not be found guilty of a higher offense based on these same events. See, e.g., State v. Taft, 506 N.W.2d 757, 761 (Iowa 1993). The court was not correcting a clerical error. Rather, in its order nunc pro tunc, the court stated it “incorrectly recited that the defendant is guilty of burglary in the third degree in each count. This was an error by the court.” As such, the order nunc pro tunc violated the principle of double jeopardy. Consequently, Naujoks may not be retried on the charge of burglary in the second degree. He may, however, be properly retried on the charge of burglary in the third degree. We reverse the trial court’s nunc pro tunc order and remand for a new trial on two counts of third-degree burglary.

REVERSED IN PART AND REMANDED FOR A NEW TRIAL.

      . The record is unclear as to how many people the officers discovered behind the locked door. The district court determined three people were behind the door, but Officer Kin-kead's testimony suggests there were four people behind the door. In either case, the total number of people in the apartment was six.


author: LARSON, Justice.

text:
    Evelyn R. GARNAS, Appellant, v. Mary Ellen BONE, Roberta A. Ausenhus, and John E. Ausenhus, Appellees.
    No. 99-1726.
    Supreme Court of Iowa.
    Dec. 19, 2001.
    Michael G. Byrne of Winston & Byrne, PC, Mason City, for appellant.
    John H. Greve, Northwood, for appel-lees.
   LARSON, Justice.

Clarence Ausenhus and Robert Garnas, predecessors to the present parties in this case, began a farm rental relationship under an unwritten agreement beginning in approximately 1958. In 1985 the parties executed a written lease. The 1985 lease was renewed for the following crop year. In 1987 Ausenhus and Garnas enrolled in the Conservation Reserve Program (CRP) for the crop years 1987 through 1996. As part of the CRP agreement, the tenant was to receive fifteen percent of the CRP proceeds for mowing the land. During the CRP period, both the original landlord and the original tenant died. Enrollment in the CRP was terminated in August 1996 by agreement of the parties. The parties had discussions in November 1996 concerning arrangements for the 1997 crop year, but no agreement was reached. In April 1997 the owner executed a lease with new tenants, and this action followed.

The plaintiffs contend that the 1985 lease remained in force during the ten-year CRP enrollment and then, following termination of the CRP agreement, through the crop years of 1997, 1998, and 1999 because notice of termination had not been served on the tenant as required by Iowa Code section 562.6 (1997). The trial court ruled that the tenant was not entitled to notice of termination because she had merely been mowing the land pursuant to the CRP agreement and therefore was not cultivating it so as to require notice of termination under the statute. See Dorsey v. Dorsey, 545 N.W.2d 328, 331-32 (Iowa Ct.App.1996) (tenant’s use of land for pasture not “cultivation” for purposes of termination notice).

On appeal the parties argue several issues, including whether the land was under cultivation for notice purposes. However, we believe one issue raised by the defendant is dispositive: when the parties replaced their farm lease with the CRP agreement, the parties mutually abandoned their 1985 lease agreement, and no notice of termination under section 562.6 was required to terminate it. It is unrealistic to believe that a preexisting lease was somehow held in suspension during the ten-year period of the CRP enrollment and then automatically reimposed on the parties so as to require a notice of termination. We therefore affirm the ruling of the district court, although on a different ground.

AFFIRMED.