                IN THE SUPREME COURT OF IOWA
                              No. 09–0709

                          Filed October 29, 2010


IN RE THE DETENTION OF
MARVIN ALLEN MEAD,

MARVIN ALLEN MEAD,

      Appellant,


      Appeal from the Iowa District Court for Scott County, Mark D.

Cleve, Judge.



      In this interlocutory appeal, the respondent in a sexually violent

predator civil commitment action argues the district court erred in

holding a second Iowa Code section 229A.5(2) probable cause hearing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Michael H. Adams,

Assistant Public Defender, for appellant.



      Thomas J. Miller, Attorney General, Kyle P. Hanson and Susan R.

Krisko, Assistant Attorneys General, and Michael J. Walton, County

Attorney, for appellee.
                                     2

BAKER, Justice.

      In this interlocutory appeal, Marvin Mead, the respondent in a

sexually violent predator (SVP) civil commitment action argues: (1) the

district court erred when it denied his motion to dismiss and held a

second Iowa Code section 229A.5(2) (2007) probable cause hearing as

there is no statutory authority for a second hearing, (2) the court violated

his right to due process when it held a second probable cause hearing,

and (3) the court lacked jurisdiction to hold a second probable cause

hearing because the State’s second SVP petition was filed at a time when

the respondent was being wrongfully held as the original probable cause

order had been vacated and he had already discharged his criminal

sentence. We find the district court erred in vacating the original finding

of probable cause, as sufficient evidence existed to provide probable

cause to believe that Mead is an SVP.

      I.    Background Facts and Proceedings.

      In 1986, Marvin Mead was convicted of burglary in the first degree

and two counts of sexual abuse in the third degree. Mead pleaded guilty

to these crimes and received a twenty-five year term of imprisonment for

burglary and two ten-year prison terms for sexual abuse, to run

consecutively.     His anticipated release date for these offenses was

October 1, 2008.

      On September 24, 2008, the State filed a petition alleging that

Mead is an SVP, and pursuant to Iowa Code chapter 229A, should be

committed to the department of human services for care, control and

treatment in a secure facility.    This petition was accompanied by a

statement of probable cause in accordance with the requirements of

chapter 229A. This statement explained Mead’s past sexual offenses and

the preliminary findings of Dr. Canton Roberts, a psychologist hired by
                                   3

the State to determine if probable cause existed to commit Mead under

chapter 229A. Roberts’s findings were based upon his review of Mead’s

records and his personal interview with Mead on September 22.

      A probable cause hearing was held on September 29.          At the

hearing, the court concluded that probable cause existed to believe that

Mead is an SVP as defined in section 229A.2. The court ordered Mead to

undergo a medical evaluation to determine whether he is an SVP and set

the case for trial within the next fifteen days.   At the probable cause

hearing, Mead claimed that his Sixth Amendment rights were violated by

Roberts’s evaluation because Roberts did not inform him of his right to

consult with counsel prior to consenting to the interview. The judge took

Mead’s claim under advisement but made no ruling on the motion.

      On November 21, Mead filed a motion to dismiss, again claiming

that his Sixth Amendment rights had been violated by Roberts because

Roberts obtained his consent to the meeting without informing him of his

right to consult with counsel. The State resisted his motion. Two weeks

later, Mead filed a motion to continue the trial and a conditional waiver

of his right to a speedy trial. The trial was tentatively rescheduled for

April 6, 2009.

      On December 22, Mead filed a supplemental motion to dismiss. In

this motion, Mead amended his earlier claim that his Sixth Amendment

right to counsel had been violated by Roberts’s interview.         Mead

acknowledged that because the proceedings under Iowa Code chapter

229A are civil rather than criminal he does not have a Sixth Amendment

right to counsel. Mead, however, claimed that his right to counsel under

article I, section 10 of the Iowa Constitution and his statutory right to

counsel under chapter 229A had been violated by Roberts.
                                     4

      The State filed a resistance to Mead’s supplemental motion. In this

motion, the State argued that the right to counsel afforded by article I,

section 10 of the Iowa Constitution was reserved for criminal defendants

and therefore did not apply to Mead. Alternatively, the State argued that

even if Roberts’s interview violated Mead’s right to counsel, the

information gleaned from the evaluation was not necessary for a probable

cause finding that Mead met the definition of an SVP under chapter

229A. The district court ruled that the interview and Roberts’s resulting

conclusions were obtained in violation of Mead’s statutory rights under

Iowa Code chapter 229A. After striking the evidence obtained from the

interview, the court determined that the State’s probable cause

statement lacked sufficient evidentiary support.      The court therefore

ordered that its earlier finding of probable cause on September 29 be

vacated. The court scheduled a new probable cause hearing for April 9.

      The State filed an amended petition and statement of probable

cause. The statement of probable cause now contained the opinion of

Dr. Amy Phenix, a clinical and forensic psychologist, that Mead suffered

from a mental condition that predisposes him to commit sexually violent

offenses, and he was likely to reoffend in the future. This opinion was

based solely on a review of Mead’s treatment and prison records. At the

close of the hearing, Mead orally renewed his motion to dismiss.

      The court determined that probable cause existed to believe that

Mead is an SVP as defined in Iowa Code section 229A.2(11). The court

denied Mead’s motion and set the matter for a jury trial on June 23.

Mead filed an application for discretionary review with this court, which

we accepted, treating it as an application for interlocutory appeal.
                                    5

      II.      Discussion and Analysis.

      Mead argues that the district court erred when it denied his motion

to dismiss and held a second Iowa Code section 229A.5(2) probable

cause hearing because there is no statutory authority for a second

probable cause hearing.      The State counters that the district court

erroneously vacated the court’s initial finding of probable cause because

Dr. Roberts did not violate section 229A.5A by interviewing Mead.

Alternatively, the State argues that even if Roberts’s interview violated

Mead’s statutory rights, the State presented the court with probable

cause to find Mead was an SVP without the information gained in the

interview. Therefore, according to the State, we need not reach the issue

of whether a second probable cause hearing was authorized. To address

these claims, we must examine the language of chapter 229A.

      A.    Violation of Iowa Code Section 229A.5A.       The process to

civilly confine a suspected SVP begins when the agency with jurisdiction

over that individual gives written notice to the attorney general and a

multidisciplinary team that a person currently confined may meet the

definition of an SVP. Iowa Code § 229A.3(1). This written notice must be

given no later than ninety days prior to the anticipated discharge date of

an individual who has been convicted of a sexually violent offense. Id.

§ 229A.3(1)(a).

      The director of the department of corrections is charged with

establishing a multidisciplinary team to review the available records of

each person referred by the agency to assess whether or not that

individual meets the definition of an SVP within thirty days.          Id.

§ 229A.3(4).      The assessment of the multidisciplinary team is then

forwarded on to the attorney general’s office. Id. The attorney general

must appoint a prosecutor’s review committee to review the individual’s
                                      6

records, to examine the multidisciplinary team’s recommendation, and to

make a second determination of whether the individual meets the

definition of an SVP.        Id. § 229A.3(5).   If the prosecutor’s review

committee determines that the person who is presently confined meets

the definition of an SVP, then the attorney general may file a petition

alleging that the person is an SVP and state sufficient facts to support

the allegation. Id. § 229A.4(1).

      The attorney general is authorized to subpoena and compel the

attendance of witnesses, examine the witnesses under oath, and require

the production of evidence for inspection and reproduction.            Id.

§ 229A.5A(1). This same code section states that “[a]ny person compelled

to appear under a demand for oral testimony under this section may be

accompanied, represented, and advised by counsel at the person’s own

expense.” Id. In addition, section 229A.5A(2) provides the respondent

the following protections:

     The examination of all witnesses under this section shall be
     conducted by the prosecuting attorney or attorney general
     before an officer authorized to administer oaths under section
     63A.1. The testimony shall be taken by a certified shorthand
     reporter or by a sound recording device and shall be
     transcribed or otherwise preserved in the same manner as
     provided for the preservation of depositions under the Iowa
     rules of civil procedure. The prosecuting attorney or attorney
     general may exclude from the examination all persons except
     the witness, witness’s counsel, the officer before whom the
     testimony is to be taken, law enforcement officials, and a
     certified shorthand reporter. Prior to oral examination, the
     person shall be advised by the prosecuting attorney or
     attorney general of the person’s right to refuse to answer any
     questions on the basis of the privilege against self-
     incrimination. The examination shall be conducted in a
     manner consistent with the rules dealing with the taking of
     depositions.

      The State claims Roberts did not violate section 229A.5A by

interviewing Mead because section 229A.5A was not intended to cover
                                     7

psychological interviews by professionals such as Roberts.         We review

issues of statutory interpretation for correction of errors at law.    In re

Det. of Pierce, 748 N.W.2d 509, 511 (Iowa 2008).

       Roberts was a member of the prosecutor’s review committee

assigned to Mead’s case; he was hired by the State to determine if

probable cause exists to commit Mead under chapter 229A. See Iowa

Code § 229A.3(5) (“The attorney general shall appoint a prosecutor’s

review committee to review the records of each person referred to the

attorney general pursuant to subsection 1.”).        As a member of that

committee, Roberts was required to assist the attorney general in

determining whether to file a petition alleging Mead was an SVP.         Id.

Iowa   Code    section   229A.5A    provides    procedures   for   gathering

information before a petition is filed. Id. § 229A.5A.

       The State argues that under the clear language of section 229A.5A,

the statute’s mandates only apply to the “prosecuting attorney or

attorney general.” Id. Iowa Code section 229A.5A is entitled “Powers of

investigative personnel before a petition is filed”; however, the term

“investigative personnel” is not defined.      The language of the statute

plainly lists the prosecuting attorney and the attorney general as parties

that must comply with its provisions, and likens the process of

investigating a potential SVP to the taking of a civil deposition. Roberts

was not an independent professional; he was a member of the

prosecutor’s review committee, a body required to assist the attorney

general in determining whether an SVP petition should be filed.        As a

member of the prosecutor’s review committee, Roberts was investigative

personnel working at the direction of the attorney general.        What the

attorney general cannot do under the statute, his representative cannot

do.    See, e.g., Restatement (Third) of The Law Governing Lawyers
                                          8

§ 11(4)(b), at 108 (2000) (stating that a supervising lawyer must ensure

that any nonlawyer’s conduct conforms to the professional obligations of

the lawyer).    As a representative of the attorney general, the statutory

protections mandated by Iowa Code section 229A.5A applied to Roberts.

       Alternatively, the State argues that even if the provisions in Iowa

Code section 229A.5A apply to Roberts’s interview with Mead, the statute

contains no requirement that the witness be informed of his right to

counsel—it simply says the witness has the right to be represented by

counsel at his own expense.            We find no validity to this argument.

Implicit in a right to counsel is the right to be informed of that right.

See, e.g., Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir. 1985) (“An

indigent’s right to appointed counsel imposes on the court an obligation

to inform him of that right.”). 1 To hold otherwise is to effectively deny

that right. Roberts was required to inform Mead of his right to counsel

under section 229A.5A.

       This determination is in accord with our recent decision in In re

Detention of Fowler, 784 N.W.2d 184 (Iowa 2010).                     In Fowler, we

determined that the Kansas act upon which Iowa’s SVP Act is based

passed constitutional muster to a great extent because it contains many
procedural protections. Id. at 189 (citing Kansas v. Hendricks, 521 U.S.

346, 364, 117 S. Ct. 2072, 2083, 138 L. Ed. 2d 501, 516–17 (1997)); see

also Atwood v. Vilsack, 725 N.W.2d 641, 651 (Iowa 2006) (“The


       1The  court in Walker determined that the right to assistance of counsel must be
extended to individuals facing civil contempt charges where imprisonment for the
contempt is contemplated because that is a potential deprivation of the individual’s
liberty. Walker, 768 F.2d at 1183–84. We too have recognized the right to counsel for
indigent contemnors where imprisonment is a possible punishment. McNabb v.
Osmundson, 315 N.W.2d 9, 14 (Iowa 1982). Because these contempt proceedings are
civil proceedings, like SVP commitment actions, we find these cases support the
assertion that an alleged SVP enjoys the right to be informed of his statutory right to
counsel.
                                     9

significant procedural protections afforded detainees during the pre-trial

stage in SVP cases strongly influence our determination that the statute

is narrowly tailored.”).   Mead’s right to an attorney is one of those

procedural protections, and we hesitate to upset the delicate balance

achieved in Iowa’s SVP Act by eroding that right.

       Roberts was required to inform Mead of his right to counsel under

Iowa Code section 229A.5A before conducting the interview and his

failure to do so was a violation of that statute. Therefore, we determine

that the district court did not err in finding that Mead’s statutory right to

counsel under Iowa Code chapter 229A was violated. We further agree

that the results of Roberts’s interview were inadmissible.      See State v.

Moorehead, 699 N.W.2d 667, 673–75 (Iowa 2005) (determining that when

a person is deprived of statutory right to counsel, evidence obtained

subsequent to the violation is not admissible).

       B. Probable Cause Determination. Once the review procedure

has been completed and a petition has been filed alleging an individual is

an SVP, the court must make a preliminary determination as to whether

probable cause exists to believe the person named in the petition is an

SVP.   Iowa Code § 229A.5(1).     Upon a preliminary finding of probable
cause, the court shall direct the person to be taken into custody and

served with a copy of the petition and supporting documentation.          Id.

Then within seventy two hours, the court must conduct a hearing to

determine whether probable cause exists.       Id. at § 229A.5(2).    At the

conclusion of the hearing, if the court finds there is probable cause to

believe the individual is an SVP, then the court shall direct the

respondent to be held for trial and transferred to a facility for an

evaluation as to whether the respondent is an SVP. Id. § 229A.5(5).
                                           10

       1. Standard of review. The State argues that even if the results of

Roberts’s interview of Mead are inadmissible, the State presented the

court with probable cause to find Mead was an SVP without the

information gained in the interview.             The review of an SVP probable

cause determination presents an issue of first impression.

       We have previously noted that probable cause is a mixed question

of law and fact. In re Det. of Palmer, 691 N.W.2d 413, 418 (Iowa 2005)

(citing Grismore v. Consol. Prods. Co., 232 Iowa 328, 361, 5 N.W.2d 646,

663 (1942)).     In the context of the adequacy of a jury-trial waiver, we

have held that we review a mixed question de novo. State v. Feregrino,

756 N.W.2d 700, 703 (Iowa 2008). 2 Thus, we determine that as a mixed

question of law and fact, the probable cause determination under Iowa

Code section 229A.5(1) shall be reviewed under a de novo standard. See,

e.g., Commonwealth v. Jackson, 661 S.E.2d 810, 814 (Va. 2008).

       2. Determination of probable cause. In Iowa’s SVP statute, an SVP

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(11). Iowa Code section 229A.5 requires the court to

make both a preliminary determination of probable cause and, after a




       2We  have previously noted the similarities between the procedural safeguards
contained within the SVP statute and those within the criminal law.         Fowler, 784
N.W.2d at 189. In the context of a constitutional challenge to determine whether
probable cause existed for the issuance of a search warrant, “[o]ur review of the district
court’s determination concerning the statutory sufficiency of the search warrant is for
correction of errors at law. We review de novo the district court’s ruling regarding
probable cause.” State v. Myers, 570 N.W.2d 70, 72 (Iowa 1997).
                                            11

hearing, a final determination of probable cause. 3 We have not had the

opportunity to define probable cause as it is used in section 229A.5.

      The purpose of a probable cause hearing is for the court to

“determine whether probable cause exists to believe the detained person

is a sexually violent predator.”            Id. § 229A.5(2).       After a finding of

probable cause has been made, the court may direct the person to “be

transferred to an appropriate secure facility for an evaluation as to

whether the respondent is a sexually violent predator.” Id. § 229A.5(5).

It is only at this point that the burden is upon the state to prove beyond

a reasonable doubt that an individual is a sexually violent predator. Id. §

229A.7(5).

      The purpose of the probable cause hearing in SVP proceedings has

been aptly described by the Supreme Court of California as follows:

      The probable cause hearing . . . is only a preliminary
      determination that cannot form the basis of a civil
      commitment; the ultimate determination of whether an
      individual can be committed as an SVP is made only at
      trial. . . . For this reason, based on the structure of the
      SVPA, a [probable cause] hearing is analogous to a
      preliminary hearing in a criminal case; both serve to
      “ ‘ “weed out groundless or unsupported charges . . . and to
      relieve the accused of the degradation and expense of a . . .
      trial.” ’ ”  Like a criminal preliminary hearing, the only
      purpose of the probable cause hearing is to test the
      sufficiency of the evidence supporting the SVPA petition.

Cooley v. Superior Ct., 57 P.3d 654, 665 (Cal. 2002) (quoting Nienhouse v.
Superior Ct., 49 Cal. Rptr. 2d 573, 578 (Ct. App. 1996)); see also

Jackson, 661 S.E.2d at 814 (“Like a criminal probable cause hearing, the

SVP probable cause hearing is concerned with the liberty interest of the

defendant and whether sufficient grounds exist to warrant further

proceedings against him.”).


      3In   making its determination, the district court did not define probable cause.
                                     12

      When conducting a probable cause hearing under an SVP statute,

the district court is only making a preliminary determination that there

are sufficient facts in the petition to form a reasonable belief that the

individual is an SVP. Cooley, 57 P.3d at 669 (“We conclude, therefore,

that a determination of probable cause by a superior court judge under

the SVPA entails a decision whether a reasonable person could entertain

a strong suspicion that the offender is an SVP.”).

      In the criminal context we have stated:        “ ‘Probable cause exists

where “the facts and circumstances within [the court’s knowledge] . . .

[are] sufficient in themselves to warrant a man of reasonable caution to

the belief that” an offense has been or is being committed.’ ” Children v.

Burton, 331 N.W.2d 673, 679 (Iowa 1983) (quoting Brinegar v. United

States, 338 U.S. 160, 175–76, 69 S. Ct. 1302, 1310–11, 93 L. Ed. 1879,

1890 (1949)). Thus, the test for probable cause is reasonable grounds to

believe the assertion, “not absolute certainty” of the assertion.      Id.   A

determination of probable cause is made after a preliminary investigation

and is based on “facts and circumstances that would be sufficient to

induce a reasonable belief in the truth of the accusation.” Id. at 680. We

find that the definition of probable cause as it is used in the criminal

context provides the correct standard and adopt this test for determining

whether probable cause exists to believe that an individual is an SVP

under Iowa Code chapter 229A.

      3. Sufficiency of evidence. After holding that Roberts’s failure to

advise Mead of his right to counsel prior to the interview was a violation

of Mead’s rights under Iowa Code section 229A.5A, the judge suppressed

the information gleaned from the interview and reassessed whether there

was probable cause to believe Mead is an SVP under the new record.

The report relied upon by the district court was a letter Roberts wrote to
                                            13

the attorney general’s office on September 5, 2008, detailing the findings

of his preliminary evaluation of Mead for possible SVP commitment. In

this letter, Roberts makes a number of observations. First, he states that

“to a reasonable degree of professional certainty, that Mr. Mead meets

. . . criteria . . . that correspond to a mental abnormality,” antisocial

personality disorder. He then states,

      [i]n this examiner’s opinion Mr. Mead’s Antisocial Personality
      Disorder constitutes a mental abnormality that predisposes
      Mr. Mead to engage in future acts of sexual criminality. Mr.
      Mead’s mental abnormality influences his volitional
      processes to the degree that he has serious difficulty in
      controlling his sexual behavior when not in a secure
      environment.

Roberts then reports that in actuarial tests Mead scored in the moderate-

to-high risk category, but that risk may be mitigated by Mead’s

participation in sex offender treatment and his advanced age. 4

      In addition to Roberts’s findings, the district court had a detailed

history of Mead’s past sexually motivated offenses, as well as other

relevant criminal history. This history contained the following pertinent

information:

   1. In 1986, Mead was convicted of first-degree burglary and two
      counts of third-degree sexual abuse for breaking into the
      home of two elderly sisters (ages 67 and 76), who were
      unknown to Mead. He bound and gagged the women and
      then anally and vaginally raped both women using his body
      parts and other household objects.       Both victims were
      injured.

   2. In 1973, Mead was convicted of deviant sexual assault in
      Rock Island, Illinois. Mead was burglarizing the victim’s
      house when she arrived home. He bound and gagged the
      victim and sexually assaulted her.

   3. In 1972, Mead was charged with rape in Rock Island, Illinois,
      but was later acquitted by a jury.


      4Mead   was fifty-five years old at the time of this proceeding.
                                   14
   4. While in prison, Mead was investigated for the sexual assault
      of another inmate.

      The court, however, determined that without the interview, the

State’s probable cause statement alleging that Mead is an SVP lacked

sufficient support. The court made this determination primarily on the

basis of a statement in the initial report in which Roberts indicated that

he was unable to determine at that time, based upon the records he had

reviewed, that Mead met the criteria for SVP civil commitment.

Therefore, Roberts ultimately determined that he was

      [p]resently unable to form the opinion, established to a
      reasonable degree of professional certainty, that Mr. Mead
      meets the criteria established by Iowa Law for being
      considered to be a Sexually Violent Predator who is more
      likely than not to engage in future sexually predatory acts if
      not detained in a secure facility.

      There is no requirement for the probable cause determination that

a psychiatrist opine to a reasonable degree of professional certainty that

an individual is an SVP, nor is there a requirement that the State must

prove Mead to be a sexually violent predator beyond a reasonable doubt

at the probable cause hearing.          The beyond-the-reasonable-doubt

determination is to be made at trial after additional investigation and

examination. Iowa Code § 229A.7(5).

      After reviewing the evidence, we determine that even after the

information gained from Roberts’s interview was struck from the record,

there was sufficient evidence in the petition to form a reasonable belief

that Mead may be an SVP. The State’s petition contained evidence that

Mead had been both convicted of and charged with sexually violent

offenses; it also contained evidence that Mead suffers from a mental

abnormality which predisposes him to engage in sexually violent

predatory acts.   The petition also details Mead’s antisocial personality
                                       15

disorder, as well as his high score on actuarial tests which indicate he is

a moderate-to-high risk to reoffend.        The evidence also showed that

Mead’s past pattern of offenses and choice of victims who are strangers

made him a risk to reoffend.        Upon our de novo review, we hold that

there was sufficient evidence for a fact finder to form a reasonable belief

that Mead is an SVP.

      Therefore, we hold that the evidence provided at the first probable

cause hearing was sufficient to find that probable cause existed and hold

Mead pending trial.

      C.     Second Probable Cause Hearing.        Mead complains that he

should have been released after the initial probable cause hearing, and

there was no basis for a second probable cause hearing.        Because we

have determined that the district court erred in vacating the court’s

initial finding of probable cause, Mead was properly detained.      See id.

§ 229A.5(5).     Therefore, we need not determine whether there was

statutory authority for the court to hold a second hearing or whether the

second hearing violated Mead’s constitutional rights. The first hearing

established the necessary probable cause that served as the basis for the

continued detention of Mead and the scheduling of a trial on the ultimate

issue of Mead’s SVP status.

      III.     Disposition.

      The district court erred in vacating the original finding of probable

cause, as sufficient evidence existed to provide probable cause to believe

that Mead is an SVP.          We remand this case to the district court for

further proceedings.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
