               IN THE SUPREME COURT OF IOWA
                            No. 06 / 06-1443

                            Filed May 2, 2008


STATE OF IOWA,

      Appellee,

vs.

GUY EDWARD FREMONT,

      Appellant.




      Appeal from the Iowa District Court for Worth County, Jon S.

Scoles, Paul W. Riffel, and Bryan H. McKinley, Judges.



      Defendant appeals conviction based upon the admission of

evidence seized pursuant to a warrant issued by a magistrate who was

not neutral and detached. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, and Jeffrey H. Greve, County Attorney, for

appellee.
                                   2

APPEL, Justice.

      In this case, we consider whether the search and seizure

provisions of the United States and Iowa Constitutions require the

suppression of evidence obtained where a search warrant was approved

by a magistrate who, at the time of the execution of the warrant,

simultaneously represented a party in a family law proceeding adverse to

one of the warrant’s named parties. We hold under the facts of this case
that the magistrate was not “neutral and detached” as required by the

Fourth Amendment and that the doctrine of harmless error does not

apply. As a result, the motion to suppress should have been granted.

The conviction of the defendant, therefore, is vacated and the case

remanded to the district court.

      I. Background Facts and Proceedings.

      In August 2005, Mike and Amy Wilson contacted Worth County

Deputy Sheriff Dan Fank regarding their granddaughter.      The Wilsons

told Fank that when they visited their granddaughter, the baby’s clothing

smelled of marijuana. Additionally, Amy told Fank that when the baby’s

mother, Destiny Fremont, visited the Casey’s store where Amy worked,

she exhibited bloodshot eyes and acted “goofy.” When confronted about
being stoned, Amy reported that Destiny merely looked away and giggled.

Fank told the Wilsons that they should contact the Department of

Human Services and report any further incidents to law enforcement.

      The following month, Amy contacted another Worth County deputy

sheriff, Jan Langenbau. Amy advised that after she and her husband

picked up the child, they opened the baby’s blanket and found a leafy

substance they believed to be marijuana.       Langenbau collected the

substance. Tests later confirmed that it was indeed marijuana.
                                    3

      In January 2006, T.C. Simon contacted Fank. Simon was at the

time dating Lacy Nelson, Destiny’s sister, and had recently lived with

Nelson, Destiny and their parents. Simon admitted that he had smoked

marijuana at the residence.     Simon additionally told Fank that the

Fremonts periodically purchased marijuana, that everyone in the home

smoked it, and that they possibly also used methamphetamines. Simon

expressed concern about the small children who resided at the home.
      Two weeks after receiving the report from Simon, Fank and

Northwood Police Officer Jesse Luther removed a bag of garbage from the

sidewalk in front of the Fremont residence. In the garbage, the officers

discovered an envelope addressed to the defendant Guy Fremont,

Destiny’s father, numerous stems and seeds, and a used package of Zig-

Zag rolling papers. The stems later tested positive as marijuana.

      On January 19, 2006, Fank presented an application for a search

warrant to Douglas Krull, a part-time magistrate.        The application

included an affidavit by Fank, a report by Langenbau, and photos of the

items recovered from the garbage bag.     Among other persons, Destiny

Fremont was listed on the search warrant as residing in the home.

      Krull immediately recognized Destiny’s name. Destiny and Bryce
Schnulle were the unmarried parents of the Wilsons’ granddaughter.

Krull, in his capacity as a private attorney, had previously filed a

paternity, custody, and child support action on behalf of Schnulle

against Destiny. Two months prior to the warrant application, Schnulle

through Krull, sought temporary child support.      The court denied the

motion, and ordered Schnulle to pay temporary support. The matter was

still pending at the time the warrant was issued.

      Krull decided to sign the warrant even though he was aware of his

representation adverse to Destiny. Krull reasoned that the evidence was
                                      4

overwhelming, physical in nature, and did not require him to evaluate

the credibility of witnesses.   The search warrant was executed on the

same day Krull signed the warrant.

      The search produced substantial evidence against the adults living

in the home.        Upon entering, Fank immediately recognized the

overwhelming smell of burnt marijuana.        Searches conducted on the

adults present produced additional marijuana and rolling papers. When
Fank pulled Guy aside and asked if there was additional contraband in

the house, Guy directed officers to two trays of marijuana in an upper

cabinet in the kitchen.      In addition, marijuana was seized from an

upstairs bedroom and methamphetamine and marijuana paraphernalia

were discovered, including pipes with residue in the room next to where

small children were playing. Guy also admitted he sold marijuana, but

only to make a life for his family.

      In light of the evidence, the State charged Guy with possession of

marijuana with intent to deliver, failure to affix a drug tax stamp, and

child endangerment.

      Guy filed a motion to suppress the evidence seized in the search,

asserting that Krull was not a neutral and detached magistrate as
required by Article I, section 8 of the Iowa Constitution and the Fourth

Amendment of the United States Constitution. The district court held

that because probable cause was so clearly established, no constitutional

infirmity was present.     Guy was later convicted of all charges.    The

defendant appealed.

      II. Standard of Review.

      Constitutional claims are reviewed de novo. State v. Freeman, 705

N.W.2d 293, 297 (Iowa 2005).          In an action involving a structural

challenge to the validity of a warrant, the burden of proof rests with the
                                       5

defendant.    Franks v. Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674,

2676, 57 L. Ed. 2d 667, 672 (1978).

      III. Discussion on Merits.

      A.   Background of Requirement of a “Neutral and Detached”

Magistrate in Search and Seizure Context. The Fourth Amendment to

the United States Constitution 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, and no Warrants shall issue,
      but upon probable cause, supported by Oath or affirmation,
      and particularly describing the place to be searched, and the
      persons or things to be seized.

U.S. Const., amend IV.

      The Iowa Constitution has a search and seizure provision with

nearly identical language.         Iowa Const. art. I, § 8.    These two

constitutional provisions are generally “deemed to be identical in scope,

import, and purpose.” State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982).

No party has suggested that the Iowa constitutional provision should be

interpreted differently than its federal counterpart on the contested

issues in this appeal and, as a result, we interpret the Iowa Constitution

similarly to its federal counterpart. In re Detention of Garren, 620 N.W.2d
275, 280 n.1 (Iowa 2000) (refusing to deviate from federal analysis in

considering state constitutional claim because appellant “ha[d] suggested

no deficiency in the federal principles . . . nor ha[d] he offered an

alternative test or guideline”).

      The second clause of the Fourth Amendment, known as the

Warrants Clause, is silent on the question of who may issue a valid

warrant. As a result, while the language suggests an intent to limit the

power of police to engage in searches and seizures that are unreasonable

or not based on probable cause and to limit the scope of warrants
                                    6

authorizing intrusions into private lives, there can be no resort to a

textual analysis of the Fourth Amendment to provide guidance on the

question of who may issue a valid warrant.            Lloyd L. Weinreb,

Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 47 (1974).

      The drafting history of the Fourth Amendment is also of little help.

While James Madison’s original draft of the Warrants Clause was

directed solely at the substantive requirements for a valid warrant, the
draft was changed by Congress to include the Reasonableness Clause.

Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. &

Mary L. Rev. 197, 208–09 (1993). There is simply nothing of relevance

on the question of magistrate qualifications that can be teased from this

drafting history.

      In light of the language and limited legislative history, it is not

surprising that authorities have resorted to vague generalities in

characterizing the commands of the Fourth Amendment. Leading Fourth

Amendment scholars declare that the Fourth Amendment embodies “a

spiritual concept” in the value of privacy and a “value judgment” about

privacy and security in a free and open society. See Jacob W. Landynski,

Search and Seizure and the Supreme Court:      A Study in Constitutional
Interpretation 47 (1966); Anthony Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 403 (1974).         These declarations,

however, provide little specific guidance on how Fourth Amendment

values should be implemented in the real world.

      B.   United States Supreme Court Approach to Neutrality and

Detachment of Magistrates Under the Fourth Amendment.

      1.    “Neutral and detached” magistrate.      Left with the broad

language of the Fourth Amendment and the unilluminating historical

context, the burden of translating the generalized constitutional
                                          7

commands of the Fourth Amendment into a workable body of law has

fallen    on   the   United    States    Supreme     Court.        The   first   clear

pronouncement by the United States Supreme Court that a warrant

under the Fourth Amendment must be issued by a “neutral and

detached” magistrate surfaced in Johnson v. United States, 333 U.S. 10,

68 S. Ct. 367, 92 L. Ed. 436 (1948). In Johnson, Justice Robert Jackson

emphasized that the inferences drawn from evidence to determine
whether probable cause existed to engage in a search must be made by

“a neutral and detached magistrate instead of being judged by the officer

engaged in the often competitive enterprise of ferreting out crime.” Id. at

14, 68 S. Ct. at 369, 92 L. Ed. at 440.             As originally formulated by

Justice Jackson, the requirement of a “neutral and detached” magistrate

was tied to the concept of separation of powers—the magistrate

approving the warrant must not be an eager (or sullen) police

apparatchik or agent. Id.

         The   requirement     of   a   “neutral    and   detached”      magistrate

announced in Johnson has been subsequently repeated, usually as

background dicta, in dozens of United States Supreme Court cases. In

light of the Supreme Court’s stated preference for searches based on
warrants issued by magistrates upon a showing of probable cause, Katz

v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967),

the inherently vague concept of probable cause, the ex parte nature of

the   proceeding,     and     limited   appellate   review    of   probable      cause

determinations only for abuse of discretion, academic commentators

have stated that the securing of a warrant from a “neutral and detached”

magistrate has evolved into the “centerpiece,” “cornerstone,” and “critical

protection” of the Fourth Amendment.            Silas J. Wasserstrom & Louis

Michael Seidman, The Fourth Amendment as Constitutional Theory, 77
                                    8

Geo. L.J. 19, 34 (1988) (centerpiece); Robert B. Mosteller, Testing the

Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall

Lead Them,” 82 Ind. L.J. 917, 973 n.208 (2007) (cornerstone) [hereinafter

Mosteller]; George R. Nock, The Point of the Fourth Amendment and the

Myth of Magisterial Discretion, 23 Conn. L. Rev. 1, 21 (1990)

(cornerstone).

      2. Separation of powers. The Johnson case involved a question of
the separation of power between the police seeking a warrant and the

magistrate reviewing it for legal sufficiency. Johnson, 333 U.S. at 14, 68

S. Ct. at 369, 92 L. Ed. at 440.     In addition to Johnson, three other

United States Supreme Court cases have developed the neutral-and-

detached-magistrate requirement in the separation of powers context. In

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d

564 (1971), the state attorney general issued a search warrant even

though he was actively in charge of the investigation and was later to be

the chief prosecutor at trial.   403 U.S. at 450, 91 S. Ct. at 2028, 29

L. Ed. 2d at 573. The Supreme Court held that “there could hardly be a

more appropriate setting than this for a per se rule of disqualification

rather than a case-by-case evaluation of all the circumstances.” Id.
      The notion of separation of powers was further explored in

Shadwick v. City of Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed. 2d

783 (1972). In this case, the Supreme Court held that a court clerk who

was an employee of the judicial branch was sufficiently disassociated

from the role of law enforcement to issue arrest warrants for violators of

municipal ordinances.     407 U.S. at 350–51, 92 S. Ct. at 2123, 32

L. Ed. 2d at 789. The court noted that “[w]hatever else neutrality and

detachment might entail, it is clear that they require severance and
                                     9

disengagement from activities of law enforcement.” Id. at 350, 92 S. Ct.

at 2123, 32 L. Ed. 2d at 789.

      Similarly, in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct.

2319, 60 L. Ed. 2d 920 (1979), a town justice signed a warrant to search

an adult book store, and then accompanied police in order to make a

case-by-case determination of obscenity. 442 U.S. at 321, 99 S. Ct. at

2322, 60 L. Ed. 2d at 925. The Supreme Court held that by becoming
part of the prosecution team, the magistrate could not be considered

neutral and detached for Fourth Amendment purposes. Id. at 327, 99

S. Ct. at 2325–26, 60 L. Ed. 2d at 929.

      Johnson, Coolidge, Lo-Ji Sales, and Shadwick suggest that the

warrant requirement reflects “a preference for one sort of government

officer—a judge—over the far more competitively charged police officer”

when it comes to making the discretionary decisions that authorize

searches. Mosteller, 82 Ind. L.J. at 973 n.208. The issue posed by this

case, however, is whether a constitutional attack may be mounted on the

neutrality or detachment of a magistrate based on other grounds of bias

not rooted in separation of powers concepts.

      3.   Direct, personal, substantial, pecuniary interest.   In one case,
the United States Supreme Court demonstrated a willingness to consider

a constitutional challenge to the neutrality and detachment of a

magistrate on grounds other than traditional separation of powers. In

Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444

(1977), the police sought and obtained a warrant to search a home for

controlled substances from a justice of the peace. 429 U.S. at 246, 97

S. Ct. at 546, 50 L. Ed. 2d at 446. Under Georgia law, justices of the

peace were not salaried, but were compensated five dollars for every

warrant issued but nothing in cases where the warrant was denied. Id.
                                    10

at 246, 97 S. Ct. at 546–47, 50 L. Ed. 2d at 446.           In a per curiam

opinion, the Supreme Court invalidated the warrant on the ground that

the magistrate was not neutral and detached as required by the Fourth

Amendment. Id. at 249–50, 97 S. Ct. at 549, 50 L. Ed. 2d at 448.

      Although the compensation scheme in Connally could have been

characterized as making the magistrate a paid agent of law enforcement

and therefore violating separation-of-powers principles, the Supreme
Court did not rely on a separation-of-powers analysis.         Instead, the

Supreme Court noted that the magistrate had “ ‘a direct, personal,

substantial, pecuniary interest’ ” in his decision to issue the warrant. Id.

at 250, 97 S. Ct. at 598, 50 L. Ed. 2d at 448 (quoting Bennett v.

Cottingham, 290 F. Supp. 759, 762–63 (N.D. Ala. 1968)). This “direct,

personal, substantial, pecuniary interest” had the potential of distorting

the magistrate’s judgment in a fashion that offended Fourth Amendment

values.    Arguably, Connally opened the door to an analysis of the

neutral-and-detached-magistrate     requirement    that    extends   beyond

ensuring that the magistrate is not an agent of the state or otherwise

engaged in the prosecutorial process.

      4.   Incorporation of due process principles.       Another important
feature of Connally is its incorporation of due process principles into the

analysis of the Fourth Amendment.            Specifically, Connally relied

primarily on the due process analysis provided in Tumey v. Ohio, 273

U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) and Ward v. Village of

Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972) in

resolving the Fourth Amendment question of whether a magistrate was

“neutral and detached.”

      In Tumey, the court formulated a test of judicial impartiality for

due process purposes.     In language often quoted, the Supreme Court
                                    11

noted that the appropriate due process inquiry was whether the facts

revealed a situation

      which would offer a possible temptation to the average man
      as a judge to forget the burden of proof required to convict
      the defendant, or which might lead him not to hold the
      balance nice, clear, and true between the state and the
      accused.

Tumey, 273 U.S. at 532, 47 S. Ct. at 444, 71 L. Ed. at 758.

      The Tumey test was further applied by the Supreme Court in the

case of Ward, 409 U.S. at 57, 93 S. Ct. at 80, 34 L. Ed. 2d at 267. In

Ward, the Supreme Court held that an Ohio statute that authorized

mayors to sit as judges with respect to ordinance violations and traffic

offenses violated due process because a major portion of the village’s

income came from the fines, fees, and costs imposed in the mayor’s

court. 409 U.S. at 60, 93 S. Ct. at 83, 34 L. Ed. 2d at 271. The Supreme

Court concluded that this structure put the mayor in a position that

“ ‘might lead him not to hold the balance nice, clear, and true between

the state and the accused. . . .’ ” Id. (quoting Tumey, 273 U.S. at 534, 47

S. Ct. at 444, 71 L. Ed. at 759). But see Dugan v. Ohio, 277 U.S. 61, 48

S. Ct. 439, 72 L. Ed. 784 (1928) (holding where mayor had only limited

functions, the mayor’s relationship to the finances and financial policy of

the city was too remote to give rise to due process concerns when the

mayor acted as a judge and imposed fines on offenders).

      Significantly, the Supreme Court in Connally did not simply

discuss Tumey and Ward, but expressly embraced the application of the

due process reasoning in Fourth Amendment cases involving challenges

to the neutrality and detachment of magistrates.      The Connally court

noted that the facts of its case were not precisely the same as in Tumey

and Ward, but concluded that “the principle of those cases” is applicable
                                    12

to the Georgia system for issuance of search warrants. Connally, 429

U.S. at 250, 97 S. Ct. at 548, 50 L. Ed. 2d at 448.         In light of this

unambiguous language, the Supreme Court has incorporated the Tumey-

Ward due process principles into Fourth Amendment analysis.           Thus,

although the defendant has not expressly raised a due process challenge,

his challenge to the magistrate’s impartiality based on due process

concepts is fully preserved by his Fourth Amendment attack.
      At least one due process case decided by the United States

Supreme Court subsequent to Connally suggests that certain grounds for

due process attack (and by implication any attack on the neutrality and

detachment of a magistrate under the Fourth Amendment), which do not

involve direct pecuniary interest of judges, may be narrow. In Aetna Life

Insurance Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823

(1986), the Supreme Court considered a case where Justice Embry of the

Alabama Supreme Court joined in a five-four opinion related to the

availability of a bad faith cause of action in Alabama when he

simultaneously was a plaintiff in an action against an insurance

company seeking to recover based upon a bad faith claim. 475 U.S. at

816–17, 106 S. Ct. at 1583, 89 L. Ed. 2d at 829. In Aetna, the Supreme
Court rejected the notion that the general hostility of Justice Embry

against insurance companies that were dilatory in paying claims was

sufficient to raise a due process violation. Id. at 820, 106 S. Ct. at 1585,

89 L. Ed. 2d at 832. Noting that not all claims of judicial qualifications

involving “ ‘kinship, personal bias, state policy, [ ] [or] remoteness of

interest’ ” are constitutional in dimension, the court emphasized that

such bias or prejudice would rise to offend due process only in the most

extreme of cases. Id. at 820, 106 S. Ct. at 1584, 89 L. Ed. 2d at 831

(quoting Tumey, 273 U.S. at 523, 47 S. Ct. at 441, 71 L. Ed. 2d at 754).
                                        13

The Supreme Court did, however, find a due process violation because

Justice Embry had a “direct, personal, substantial, pecuniary interest” in

the outcome of the case before the Alabama Supreme Court. That case

would set binding precedent in the bad faith case wherein Embry was a

named plaintiff. Id. at 822, 106 S. Ct. at 1586, 89 L. Ed. 2d at 833.

      In an important concurring opinion, however, Justice Brennan

suggested in Aetna that the Court did not state that nonpecuniary
interests could not arise to a due process violation. Id. at 829, 106 S. Ct.

at 1589, 89 L. Ed. 2d at 838 (Brennan, J., concurring). Justice Brennan

noted that in In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942

(1955), the Supreme Court held that due process disqualified a judge

who presided over a proceeding alleging contempt of a grand jury in

which the same judge was the grand jury’s only member. Aetna, 475

U.S. at 830, 106 S. Ct. at 1580–90, 89 L. Ed. 2d at 838. As noted by

Justice Brennan, the judge in Murchison, had no direct or indirect

pecuniary interest, but due process was nonetheless violated because of

the conflicting roles assumed by the judge. Id. Justice Brennan noted

that nothing in the Aetna opinion was inconsistent with Murchison’s

assertion that the interests which trigger a due process problem “cannot
be defined with precision.” Id.

      C.      Lower    Court      Application   of   Fourth   Amendment

Requirement     of    Neutral     and    Detached    Magistrate   Involving

Nonpecuniary Interests.

      1. Overview.    While the cases are relatively rare, several courts

have implemented the Connally framework in nonpecuniary settings. For

example, in State v. Burnam, 672 P.2d 1366, 1380 (Or. Ct. App. 1983), a

state court found that a personal interest prevented a magistrate from

being neutral and detached when the warrant related to the rape of his
                                     14

clerk. In another case, State v. Edman, 915 A.2d 857, 867 (Conn. 2007),

another state court found that where a former court employee had

recently threatened to sue a judge over an employment dispute, that

judge could not function as a “neutral and detached magistrate”

regarding a search of the employee’s residence.      A result similar to

Edman was reached in People v. Lowenstein, 325 N.W.2d 462, 467 (Mich.

Ct. App. 1982), where a magistrate previously prosecuted the defendant
and was sued by the defendant was held not be neutral and detached.

      These decisions by implication recognize the holding of Connally

that due process concepts apply to Fourth Amendment challenges to the

neutrality and detachment of magistrates.      These cases also appear

consistent with the United States Supreme Court’s due process holding

in Murchison that constitutional challenges to the impartiality of a judge

may include nonpecuniary interests that must be evaluated in the

specific factual context of a given case.

      The courts have been careful, however, to set clear limits to claims

that nonpecuniary interests defeat magistrate neutrality and detachment

under the Fourth Amendment. For example, mere past association or

knowledge of a defendant is generally not deemed to give rise to a
constitutional infirmity.   As was colorfully stated in United States v.

Heffington, 952 F.2d 275 (9th Cir. 1991),

      Assuming that an appearance of partiality may lurk in the
      fact that judges and police officers in rural counties often
      know more about local criminal recidivists than their more
      urban colleagues, we are not prepared to disqualify small
      town judges on demand.

952 F.2d at 279. Similarly, past legal representation either on behalf of

or adverse to a defendant is not ordinarily grounds for attacking the

neutrality or detachment of a magistrate. United States v. Guthrie, 184
                                     15

Fed. App’x 804, 807 (10th Cir. 2006) (holding that there was no Fourth

Amendment violation where magistrate represented, several years earlier,

son of owner of private residence to be searched); United States v. Outler,

659 F.2d 1306, 1312 (5th Cir. 1981) (holding no nexus between

magistrate’s   prior   prosecution   of   the   defendant   and   subsequent

proceedings); State v. Mandravelis, 325 A.2d 794, 795 (N.H. 1974) (noting

that before becoming a judge the magistrate represented the accused on
several charges, some of which resulted in conviction, and had

knowledge of defendant’s problems with drugs when younger). Remote

claims of bias also have little prospect of success in the Fourth

Amendment context. United States v. Czuprynski, 46 F.3d 560, 564 (6th

Cir. 1995) (holding that evidence of employment dispute thirteen years

earlier too remote). The above cases generally stand for the proposition

that there is no Fourth Amendment requirement for the perfect or best

“neutral and detached magistrate.” Heffington, 952 F.2d at 279–80.

      The closest case to the facts presented here is State v. Slaughter,

315 S.E.2d 865 (Ga. 1984).      In that case, a magistrate who issued a

search warrant in a drug case was also the attorney of record in a civil

case against the defendant.      Slaughter, 315 S.E.2d at 866.       After a
productive search, the defendant was charged with drug offenses.         Id.

The defendant claimed that his arrest on criminal charges provided

grounds for his impeachment in the civil case and hampered his ability

to vigorously participate in his defense. Id.

      In Slaughter, the Georgia Supreme Court rejected the challenge to

the search warrant.     Id. at 869–70.    The court noted that the fact of

representation adverse to the defendant alone might be sufficient to show

that a magistrate is not neutral and detached in some cases it does not

necessarily require disqualification in all cases.          Id.   The court
                                     16

emphasized, however, that it was quite possible that the magistrate did

not even recognize the name of the defendant when the search warrant

was issued. Id. at 870.

      2. Role of canons of judicial ethics. The defendant claims that Iowa

Code of Judicial Ethics 3(D)(1) establishes the standard for determining

whether a magistrate is “neutral and detached” under the Fourth

Amendment. This canon provides that a judge should disqualify himself
or herself in a proceeding if “the judge’s impartiality might be reasonably

questioned.” See State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). The

State challenges this approach, arguing that the demands of the Fourth

Amendment are fundamentally different than the canon requirements.

      Some cases have held that the canons of ethics define the Fourth

Amendment     standard    for   a   neutral      and   detached     magistrate.

Commonwealth v. Brandenburg, 114 S.W.3d 830, 832 (Ky. 2003) (holding

“appearance    of   impropriety”    test   is    incorporated     into   Fourth

Amendment).    Other cases, however, have suggested that the judicial

canons are not incorporated wholesale into Fourth Amendment analysis.

United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir. 1985).

      We reject the wholesale incorporation of Canon 3(D)(1) for a
number of reasons.    The canons of judicial ethics are designed not to

protect individual defendants, but to protect the judiciary from charges

of partiality. Id. The canons of judicial ethics thus often extend further

than what is constitutionally required.         Aetna, 475 U.S. at 821, 106

S. Ct. at 1585, 89 L. Ed. 2d at 832 (noting most matters relating to

judicial qualification do not rise to a constitutional level); Fed. Trade

Comm’n v. Cement Inst., 333 U.S. 683, 702, 68 S. Ct. 793, 804, 92 L. Ed.

1010, 1035 (1948) (same). A number of the canons of judicial ethics,

particularly those involving “appearances of impropriety,” are not bright-
                                      17

line tests which are easy to apply in individual factual settings. The last

thing that Fourth Amendment law needs is another amorphous test

lacking in predictability.

      Finally, the contours of what is constitutionally required are not

subject to the vagaries of rulemaking in the various jurisdictions. The

scope of constitutional protections does not depend upon whether a

jurisdiction has adopted certain model codes of judicial ethics. We thus
conclude that while ethical guidelines may be instructive, they are not

determinative on the constitutional question of whether a particular

magistrate is neutral and detached under the Fourth Amendment.

      D. Application of Fourth Amendment Principles. In light of the

above, we must now consider whether the facts of this case establish a

Fourth Amendment violation.           The magistrate in this case was

simultaneously representing the putative father against one of the

targets of the search in a child custody proceeding. A successful search

of the home, which sought to find evidence of drug offenses, could make

the position of the mother more difficult in the child custody matter and

advance the position of the father.

      The case is thus similar to Ward, where the mayor did not receive
a direct benefit when he engaged in judicial acts adverse to defendants,

but the city that the mayor served was benefited by the mayor’s actions.

Ward, 409 U.S. at 57, 93 S. Ct. at 80, 34 L. Ed. 2d at 267. Moreover,

this case contrasts with situations where the magistrate was involved in

past representations of parties affected by the warrant decision, and thus

the decision could have no impact on the outcome of the prior

proceedings or where a challenge is based upon the mere acquaintance

of judge with the accused. Guthrie, 184 Fed. App’x. at 804; Outler, 659

F.2d at 1312; Mandravelis, 325 A.2d at 794.
                                    18

      We also believe this case is distinguishable from Slaughter, 315

S.E.2d at 865.     Here, there is a clear nexus between the current

representation and the issuance of a search warrant. The issuance of

the warrant could lead to a drug charge against Destiny Fremont.          A

drug charge in a child custody dispute is a serious matter and goes to

the core of the fundamental question in child custody matters—the best

interests of the child. Further, unlike in Slaughter, the magistrate in this
case was aware of his representation adverse to one of the accused.

      Under the unusual circumstances of this case, we conclude that

the magistrate had a nonpecuniary personal interest in the matter that

objectively cast doubt on his ability to hold the balance, nice, clear, and

true, between the state and the accused. Tumey, 273 U.S. at 532, 47

S. Ct. at 444, 71 L. Ed. at 758. A probable cause determination must be

made by a person unfettered by other potentially conflicting professional

commitments. Cf. People v. Payne, 381 N.W.2d 391, 395 (Mich. 1985)

(holding that magistrate’s status as a deputy sheriff rendered him

incapable of satisfying the neutral-and-detached requirement).          The

magistrate’s simultaneous and conflicting dual roles rendered him

unable to meet the requirements of a neutral and detached magistrate
under the Fourth Amendment. Id. As the court in Tumey emphasized, a

situation where one person “occupies two practically and seriously

inconsistent positions, one partisan and the other judicial, necessarily

involves a lack of due process of law in the trial of defendants charged

with crimes before him.” Tumey, 273 U.S. at 534, 47 S. Ct. at 445, 71

L. Ed. at 759.

      We agree with the State that the defendant has made no showing

of actual prejudice in this case.   In Tumey, Connally, and Murchison,

however, the Supreme Court did not require such a showing.            These
                                     19

cases stand for the proposition that some conflicts are just so fraught

with danger that a showing of actual prejudice is not required. We hold

that the facts in this case present such an occasion.

      Because of this Fourth Amendment violation, the evidence seized

as a result of the execution of the warrant is subject to suppression.

Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S. Ct. 407, 416, 9

L. Ed. 2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa
1981).

      E.   Avoidance of Exclusionary Rule through Harmless Error.

The State urges that the district court was correct when it held that

because there was ample probable cause for the warrant, any

constitutional infirmities in its execution are irrelevant.

      Even if we were to agree with the State that there were ample

grounds to support a finding of probable cause based on the affidavit

presented to the magistrate in this case, that is not the end of the

matter. As noted by Justice Jackson in Johnson,

      [a]ny assumption that evidence sufficient to support a
      magistrate’s disinterested determination to issue a search
      warrant will justify the officers in making a search without a
      warrant would reduce the Amendment to a nullity and leave
      the people’s homes secure only in the discretion of police
      officers.

Johnson, 333 U.S. at 14, 68 S. Ct. at 369, 92 L. Ed. at 440. An invalid

warrant is the equivalent of no warrant at all. Coolidge, 403 U.S. at 450–

51, 91 S. Ct. at 2030, 29 L. Ed. 2d at 574. As a result, Justice Jackson’s

admonition is fully applicable to this case and harmless error analysis

does not apply. Cf. Chapman v. California, 386 U.S. 18, 23 n.8, 87 S. Ct.

824, 828 n.8, 17 L. Ed. 2d 705, 710 n.8 (1967) (holding that harmless

error rule does not apply to charge of a partial judge).      The lack of a
                                    20

neutral and detached magistrate is a structural defect that defeats any

application of the harmless error doctrine.

      F.   Summary.      We hold that when a magistrate approves an

application for a search warrant at a time when the magistrate knows he

or she is engaged in legal representation against a target of the search

warrant in a child custody matter which could be impacted in favor of

the magistrate’s client if the search is successful, a violation of the
Fourth Amendment requirement that a magistrate be neutral and

detached occurs. Further, the doctrine of harmless error has no

application where a warrant is issued by a magistrate lacking the

required neutrality and detachment. We reach these conclusions under

the   Fourth   Amendment     of   the   United   States   Constitution   and

independently under Article I, section 8 of the Iowa Constitution.

      We recognize that some may not regard this case as presenting an

egregious violation of the Fourth Amendment.       As observed by Justice

Bradley over one hundred years ago in the seminal Fourth Amendment

case of Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746

(1886), abrogated on other grounds by Bellis v. United States, 417 U.S.

85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974):

      It may be that it is the obnoxious thing in its mildest and
      least repulsive form; but illegitimate and unconstitutional
      practices get their first footing in that way, namely: by silent
      approaches and slight deviations from legal modes of
      procedure. This can only be obviated by adhering to the rule
      that constitutional provisions for the security of person and
      property should be liberally construed. A close and literal
      construction deprives them of half their efficacy, and leads to
      gradual depreciation of the right, as it is consisted more in
      sound than substance. It is the duty of courts to be
      watchful for the constitutional rights of the citizen, and
      against any stealthy encroachments thereon.

Boyd, 116 U.S. at 635, 6 S. Ct. at 535, 29 L. Ed. at 752.
                                    21

      IV. Conclusion.

      The ruling of the district court denying the motion to suppress is

reversed and the conviction in this case is vacated.          The case is

remanded to the district court for further proceedings.

      REVERSED AND REMANDED.

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