State v. Wright

SNELL, Justice

(dissenting).

I respectfully dissent. The majority has ignored the legal proposition applicable to this case that we say is so well established that authorities need not be cited in its support. That proposition is that:

*369In construing statutes the court searches for the legislative intent as shown by what the legislature said, rather than what it should or might have said.

Iowa R.App.P. 14(f)(13).

What the legislature said on this issue is that reserve peace officers are subordinate and shall not serve unless under the direction of regular peace officers. The meaning of “direction” accorded by the majority is no more than paper direction arising from the appointment of Chief Swain as the coordinating and supervising officer. Though possessed with authority, Chief Swain did not exercise it. With regard to the arrest of defendant Wright, Chief Swain did no directing of reserve officers McLaud and Hunter, and had no knowledge of what police actions they were undertaking.

The majority notes with satisfaction that Officer McLaud was well trained to perform traffic stops, make arrests, and test drivers for alcohol consumption. However, its decision is far broader and hazardous in application. The rule of law established here will apply equally to the reserve peace officer who makes an illegal search or an unlawful arrest.

Our goal in construing this statute is to ascertain legislative intent. We consider the spirit of the statute as well as the words so that a practical and logical construction is given. Emmetsburg Ready Mix Co. v. Norris, 362 N.W.2d 498, 499 (Iowa 1985); Hansen v. State, 298 N.W.2d 263, 265-66 (Iowa 1980). The words of the statute are given their ordinary meaning unless it is clear the legislature intended a different meaning or unless such a construction would defeat the manifest intent of the legislation. Casteel v. Iowa Dep’t of Transp., 395 N.W.2d 896, 898 (Iowa 1986); Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986). In State v. Webb, 261 Iowa 1151, 1157, 156 N.W.2d 299, 303 (1968), we said, “However, we must construe the statute as it is written and not according to our reaction to the present situation.”

The requirement that the supervisor be a “regular force peace officer” is intended to guarantee that the reserve force be led by an individual with that level of training and certification. Chief Swain clearly possessed the requisite expertise. However, the record reflects Officers McLaud and Hunter did not actually serve under Chief Swain’s direction or under the direction of Barb Roorda, the only regular peace officer on the Center Point force. The testimony of Officer McLaud and Chief Swain was that the officers could call Chief Swain whenever they had any questions or problems. When Officer McLaud was asked whose direction he worked under, he stated, “I normally work under myself. If I have got any questions or anything, I just go ahead and check with Russ.” However, he had not contacted Chief Swain at all on the night of Wright’s arrest; nor had he contacted Officer Roorda, as she was away on vacation.

Chief Swain testified that he understood his function as supervising officer was merely to help or assist the reserve officers in the performance of their duties. He was not responsible for the reserves’ work schedule, and did not always know what hours they worked. Nor did Chief Swain have regular hours anytime when he was on duty for Center Point business.

It is clear from the record that the only “direction,” if any, provided by Chief Swain was that afforded by the availability of his advice, should the reserve officers have questions or problems. Stated otherwise, Chief Swain operated as a consulting officer, not as a coordinating and supervising officer responsible for giving the reserve officers directions of at least a general nature.

The word “direction” is of a common . usage and understanding. It means something that is imposed as an authoritative or explicit instruction. See Hueske Implement Co. v. Shipley, 445 P.2d 9, 12 (Wyo.1968); Way v. Patton, 195 Or. 36, 46-48, 241 P.2d 895, 900 (1952); American Heritage Dictionary 400 (2d College ed.). Cf. Hughes v. Van Bruggen, 44 N.M. 534, 536-39, 105 P.2d 494, 496-97 (1940) (distin*370guishing “to advise” and “to instruct,” and noting that “instructions” and “directions” are synonymous). “Direction” has also been said to be “the act of governing, ordering, or ruling.” Kellyville Coal Co. v. Bruzas, 223 Ill. 595, 599-601, 79 N.E. 309, 311 (1906).

This does not mean that every action of a reserve officer must be explicitly requested by, or performed in the physical presence of, a regular peace officer. It does mean that action taken by a reserve officer must be made under the knowing control of a regular peace officer. See 1981 Op.Iowa Att’y Gen. 148 (1982).

In this case it cannot be said Officers McLaud and Hunter were directed to do anything, even of a general nature, by Chief Swain or Officer Roorda on December 26, 1986. Under the procedure employed by Center Point, Chief Swain had no idea where Officers McLaud or Hunter were or what they were doing, unless they ran into trouble and called him.

The supervision and direction required by section 80D.9 should be provided to a degree which is reasonable, subject to the determination of the supervising officer. However, where, as here, the determination made is that no supervision or direction will be provided unless explicitly requested, the statutory requirement has been effectively inverted. The amount of direction to be provided is no longer within the discretion of the supervising officer, but rather has been placed within the discretion of the reserve officers.

The purpose of supervision is to protect the public from the harm potentially flowing from the acts of an overzealous partially trained peace officer. The majority leaves in that officer’s mind the decision whether any direction is necessary before action is taken. Thus, the only protection afforded the public from the under-trained officer’s ill-conceived judgments on what to do is that somehow the officer will desire direction before acting and ask for it. Supervision of this sort will always be more hopeful than real.

I do not believe this result is consonant with what the legislature said or intended. Officer McLaud was not acting “under the direction” of a regular peace officer when he administered the breath test to defendant. His actions were in violation of section 80D.9.

I would affirm the court of appeals, reverse the judgment of the district court and remand for a new trial.

NEUMAN, J., joins this dissent.