Gardels v. Brewer

BECKER, Justice

(dissenting).

I respectfully dissent.

I. I cannot concur with Division IV which re-affirms our prior holdings that it is constitutionally permissible to revoke a parole without notice or hearing. See dissent by Rawlings, J., in Cole v. Holliday, 171 N.W.2d 603, 609 (Iowa 1969).

II. The other problem inherent in this case is more difficult a solution. Under the Montana and Iowa law defendant (plaintiff here) was entitled to a hearing *808 and to counsel before extradition was complete. 1

On the record as we now have it, the rights of the defendant were violated and in the violation thereof the law officers themselves broke the law. 2 In my view it will not do to say that this defendant must attack the irregularity of extradition proceedings in the asylum state. The peace officers of Montana turned his physical custody over to peace officers of Iowa and between the two groups of officers the defendant was taken out of Montana without an opportunity to be afforded a lawyer or a hearing.

The State takes the position that it does not make any difference how the person was returned to the State, legally or illegally, the fait accompli cannot be challenged even though illegal. This was the rationale of State v. Tonn, 195 Iowa 94 , 191 N.W. 530 (1923), (illegally obtained evidence is nonetheless admissible in evidence). Finally the United States Supreme Court interfered and protected the rights of the accused in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , 84 A.L.R.2d 933 (evidence obtained by unreasonable search and seizure is inadmissible against a criminal defendant and this rule applies to the states). A like fate can (and should) befall this latest State contention if individual statutory and constitutional rights are consistently ignored.

In the context of this case I do not feel it is necessary to return the defendant to Montana to afford him his rights. However, I suggest that it is the duty of this court to plainly state that if such disregard of the Uniform Criminal Extradition Act is continued the court will interfere to protect the rights of the accused. In such cases it can and should order defendant returned to the state from which he has been illegally transported.

In conclusion I would order a revocation of parole hearing for this defendant and affirm in all other respects with the above noted caveat to the executive authorities of the State.

RAWLINGS, J., joins in this dissent.

. “759.10. Testing legality of arrest. No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.” (Uniform Criminal Extradition Act.)

. “759.11. Penalty for wilful disobedience Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor’s warrant, in wilful disobedience to the last section, shall be guilty of a misdemeanor and, on conviction, shall be fined not more than $100.00 or be imprisoned not more than thirty days.” (Uniform Criminal Extradition Act.)