"Ready to be Bulldozed" House is "Occupied": IA Appeals Court Rules

Iowa case law summary by Attorney Richard Clem: Burglary.

State of Iowa v. David Howard Rooney. Iowa Burglary

Update: The Iowa Supreme Court reversed the Court of Appeals on April 10, 2015. It stated the issue in the case as "whether the structure was adapted for overnight accommodation at the time Rooney allegedly entered it." It held that it was not. It also held that the presence of occasional transient squatters was not relevant. It noted that "the purpose of burglary statutes is to protect the person with custody and control of the property, not the temporary dwelling of transients." The high court also held that the evidence was insufficient under the used-for-the-storage-or-safekeeping-ofanything-of-value alternative. The court held that this part of the statute "requires more than the mere fact there is some scrap that might be ripped out of a dilapidated building with some marginal economic value."

On November 4, 2012, the Council Bluffs Fire Department responded to a fire at a house believed to be the oldest in Council Bluffs. The house was dilapidated, and described by one neighbor as "just an old, abandoned, nobody-lives-there house, falling apart, boarded up."

The fire investigator saw signs that copper wire had been removed, and witnesses reported someone loading a radiator into an old truck. Police later found the truck occupied by David Howard Rooney, who denied any involvement with the fire, but admitted being at the property "scrapping metal." He was subsequently charged with burglary and subsequently convicted in Pottawattamie County District Court before Judge Richard H. Davidson. After receiving a sentence of up to five years, he appealed to the Iowa Court of Appeals.

The Iowa burglary statute under which Rooney was convicted, Iowa Code sections 713.1 and 713.6A require that the defendant "enter" an "occupied structure." On appeal, Rooney entered that the facts of the case did not meet this definition. The court noted that under the statute, a structure can be occupied if it is either "adapted for overnight accommodations" or for the "storage and safekeeping of anything of value." It then discussed whether the house fit either of these definitions.

The court first held that the house, despite its condition, was "adapted for overnight accommodations" since that is the primary purpose of a house. The court also held that the house was "adapted for storage or safekeeping items of value," since the house contained historic features, such as a fireplace and mantel. For these reasons, the Court of Appeals affirmed.

Judge McDonald dissented, calling the house a "waiting to be bulldozed structure."

No. 13-0618 (Iowa Ct. App. Aug 27, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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