State of Iowa v. Justin Andre Baker

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On August 30, 2015, Investigator Michael Girsch with the Waterloo Police

Department2 received a call from a law enforcement official in the state of Nevada.

The official told Investigator Girsch they had stopped a vehicle containing three

persons from Waterloo, including Baker. Nevada officials arrested all three

persons after finding a distributional quantity of marijuana and other items in the

vehicle. Investigator Girsch testified Baker was “on our radar” after he received

the call. Nevada officials never charged Baker after his arrest.

In early April 2016, Investigator Girsch was conducting surveillance on an

unrelated matter in plain clothes near Ricker Street in Waterloo. He noticed Baker

1 As will be explained later in the opinion, these charges were docketed under three separate case numbers: FECR 213018, possession with intent to deliver marijuana, and failure to affix a drug tax stamp; AGCR 212970, driving while barred, and possession of marijuana, second offense; and AGCR 215793, driving while barred. 2 Investigator Girsch testified he began working for the Waterloo Police Department in 2008 and he joined the area Drug Enforcement Task Force about three-and-one-half years prior to trial.

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driving a vehicle and apparently preparing to pull into the driveway at a house.

Baker then appeared to notice the investigator, and he continued driving past the

house. Investigator Girsch testified he “stuck out in that neighborhood” despite

wearing plain clothes and “it doesn’t take a rocket scientist to figure out who a cop

is in certain neighborhoods.” Investigator Girsch circled the block and set up in a

different location. He eventually observed Baker drive toward the house again,

park in its driveway, and enter the house.

On April 18, 2016, Investigator Matthew Isley with the Black Hawk County

Sheriff’s Office3 received an anonymous call regarding Baker and his niece Shana

Caldwell. The caller said Baker and Caldwell were living in the Ricker Street house

that Investigator Girsch previously saw Baker enter. The caller also said the house

contained a lot of marijuana and the two had just returned from out of town with a

shipment of more marijuana.

After receiving the anonymous call, Investigator Isley began watching the

Ricker Street house. He saw Baker enter the house, exit about twenty minutes

later, and drive away. Investigator Isley followed Baker’s vehicle. He soon

observed Baker’s vehicle stop in an alley, where another man put his hand in the

vehicle’s open passenger window and then immediately removed his hand and put

it in his pocket. Investigator Isley testified he sees hand-to-hand narcotics

transactions “almost daily” in his line of work and the events in the alley were

consistent with a hand-to-hand narcotics transaction.

3 Investigator Isley testified he attended the Iowa Law Enforcement Academy in 2003, and he subsequently worked in the jail and as a road deputy before joining the area Drug Enforcement Task Force two-and-one-half years prior to trial.

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Investigator Isley then asked for a police officer to stop Baker’s vehicle as

part of their investigation into illegal narcotics activity. Sergeant Steven Bose with

the Waterloo Police Department responded, identified Baker’s vehicle, and

activated his emergency lights. With the emergency lights directed at him, Baker

continued to slowly drive for about one half-block, turned onto another street, and

slowly drove for about another quarter-block before stopping. When Baker’s

vehicle turned, Sergeant Bose saw an object thrown out the driver’s window. Once

stopped, Sergeant Bose placed Baker in handcuffs and recovered the thrown

object, which he determined was a small bag of marijuana. Baker had $200 in

twenty-dollar bills in his pocket, but officials found nothing else significant on his

person or in the vehicle.

Investigator Girsch testified they decided to apply for a search warrant for

the Ricker Street house after the traffic stop. He testified he was concerned Baker

had alerted someone at the house to destroy evidence while he continued driving

a “slow roll” before eventually stopping his vehicle. According to Investigator

Girsch, oftentimes when law enforcement stops a drug offender’s vehicle, “if they

have a stash house or something like that, they will slow roll and try to get a text

or call off for people to get rid of that evidence in that residence.” Before writing

the search warrant application, officials performed a protective sweep of the house

looking for weapons and persons. During the sweep, officials saw a digital scale

and a bag of marijuana in plain sight, and they noted the odor of fresh marijuana

throughout the home. After the sweep, Investigator Isley wrote and submitted the

application for the search warrant. The application included a five-page affidavit

setting forth supporting facts, including the Nevada arrest, Investigator Girsch’s

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observation of Baker’s hesitation and avoidance behavior before entering the

Ricker Street house, the anonymous call, the suspected hand-to-hand narcotics

transaction, the bag of marijuana thrown during the traffic stop, and observations

made during the sweep. The district court issued the search warrant later that day.

Items found during the search included a digital scale, multiple bags of marijuana,

miscellaneous packaging including both new and used empty small plastic bags,

and various items containing marijuana residue.

On May 17, 2016, the State filed a trial information charging Baker with

possession of a controlled substance—marijuana, second offense and driving

while barred as a habitual offender. See Iowa Code §§ 124.401(5), 321.561

(2016). The charges were filed in case number AGCR212970. On May 18, the

State filed a second trial information charging Baker and Caldwell with possession

of a controlled substance with intent to deliver and a drug tax stamp violation. See

id. §§ 124.401(1)(d), 453B.12. The charges against Baker were filed in case

number FECR213018. On November 2, the State filed a third trial information

charging Baker with driving while barred as a habitual offender, related to his

actions on September 28, in case number AGCR215793.

On August 9, 2016, Baker filed a motion to suppress evidence for case

number FECR213018, and he moved to join a similar motion filed by Caldwell. On

September 12, the district court held a hearing on the motions. At the hearing, the

parties clarified the motions challenged the bases for the stop of Baker’s vehicle,

the protective sweep of the house, and the warrant to search the house.

On September 23, 2016, the district court issued its ruling on the motions

to suppress. First, the court considered the basis for the investigatory traffic stop:

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Under a totality of the circumstances view, the Court finds the stop of Baker’s vehicle was supported by a reasonable suspicion of criminal activity. At the time of the stop, officers had received the anonymous tip indicating Baker and Caldwell recently received a “distributional amount” of narcotics through an anonymous tip as well as prior notification by Nevada law enforcement Baker had been arrested for possession of a large quantity of marijuana. This information, in addition to Investigator lsley’s observation of what he believed to be a hand-to-hand narcotics transaction, provided sufficient facts to alert experienced officers to a reasonable suspicion of criminal activity, namely the sale or distribution of narcotics. The suspicion of criminal activity was confirmed when Baker attempted to dispose of marijuana before stopping his vehicle. Given the Court’s finding the stop was reasonable any suppression issues related to the stop are denied.



Second, the court found no exigent circumstances to support the protective sweep,

and it suppressed evidence obtained in the sweep. Third, the court considered the

basis for the search warrant of the house. Because the court suppressed evidence

from the protective sweep, the court excised this evidence from the warrant

application; however, the excised information only amounted to three paragraphs

of the five-page affidavit. The remaining information in the application included

Baker’s arrest in Nevada, his hesitation to enter the house while Investigator

Girsch watched him, the suspected hand-to-hand narcotics transaction, and the

bag of marijuana Baker tossed out the car window. The court rejected the

argument that the warrant application contained falsities because it failed to

mention Baker was not charged by Nevada officials and Investigator Girsch wore

plain clothes when he saw Baker hesitate to enter the house. Accordingly, the

court found probable cause to support the warrant application, and it denied

suppression issues related to the warrant and ensuing search.

On January 24, 2017, Baker and Caldwell proceeded to a jury trial on case

number FECR213018. The jury found both defendants guilty of possession of

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marijuana with intent to deliver and a drug tax stamp violation. On April 17, Baker

pled guilty to possession of a controlled substance—marijuana, second offense,

and two counts of driving while barred as a habitual offender from the other two

proceedings. Also on April 17, the court entered judgment and sentence for each

of the three proceedings. In addition to imposing and suspending fines and

surcharges, the court imposed the following terms of incarceration: five years for

possession of marijuana with intent to deliver, five years for the drug tax stamp

violation, one year for possession of a controlled substance—marijuana, second

offense, and one year for each of the two counts of driving while barred. All terms

of incarceration were to be served concurrently.

Baker now appeals. He argues the district court erred in denying his motion

to suppress, his counsel was ineffective for failing to file a motion to suppress in

case number AGCR212970, and the court abused its discretion in imposing his

sentences.

II. Standard of Review

“We review the denial of a motion to suppress on constitutional grounds de

novo.” State v. Ingram, 914 N.W.2d 794, 798 (Iowa 2018). “We review claims of

ineffective assistance of counsel de novo.” State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012). When a sentence is within the statutory limits, we review challenges

to the sentence for abuse of discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa

2015).

III. Motion to Suppress

Baker argues the district court erred in denying the motion to suppress

evidence from both the investigatory stop and the search of the Ricker Street

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house. Specifically, he argues the investigatory stop was not supported by

reasonable suspicion, and the search warrant for the house was not supported by

probable cause. Baker raises his arguments under the Fourth Amendment of the

United States Constitution and article I, section 8 of the Iowa Constitution.

A. Investigatory stop

Law enforcement stopped Baker’s vehicle in order to investigate ongoing

illegal narcotics activity. An officer may make a warrantless stop of “an individual

or vehicle for investigatory purposes based on a reasonable suspicion that a

criminal act has occurred or is occurring.” State v. Kreps, 650 N.W.2d 636, 641

(Iowa 2002); see also Terry v. Ohio, 392 U.S. 1, 21–22 (1968). “Our decisions

have universally held that the purpose of a Terry stop is to investigate crime.” State

v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013); see also State v. Vance, 790 N.W.2d

775, 780 (Iowa 2010) (“The principal function of an investigatory stop is to resolve

the ambiguity as to whether criminal activity is afoot.”). “To justify an investigatory

stop, the officer must be able to point to ‘specific and articulable facts, which taken

together with rational inferences from those facts, reasonably warrant that

intrusion.’” Kreps, 650 N.W.2d at 641 (quoting State v. Heminover, 619 N.W.2d

353, 357 (Iowa 2000)). “The circumstances under which the officer acted must be

viewed ‘through the eyes of a reasonable and cautious police officer on the scene,

guided by his experience and training.’” Id. at 642 (quoting United States v. Hall,

525 F.2d 857, 859 (D.C. Cir. 1976)). “Whether reasonable suspicion exists for an

investigatory stop must be determined in light of the totality of the circumstances

confronting a police officer, including all information available to the officer at the

time the decision to stop is made.” Id.

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The parties disagree about the time to determine whether reasonable

suspicion existed. The State asserts the reasonable-suspicion determination

includes everything the officials knew at the time Baker fully acquiesced to

authority by stopping his vehicle; accordingly, his actions in throwing a bag of

marijuana out of his vehicle while slowly coming to a stop after Sergeant Bose

activated his emergency lights contribute toward reasonable suspicion for the

investigatory stop. However, our supreme court has declared the reasonable

suspicion determination for an investigatory traffic stop includes “all information

available to the officer at the time the officer makes the decision to stop the

vehicle.” State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004) (emphasis added). At

the time Sergeant Bose activated his emergency lights, law enforcement officials

had already made the decision to stop Baker’s vehicle. See id. Therefore, we

cannot consider Baker’s actions after activation of the emergency lights, including

him throwing a bag of marijuana out the window while he slowly stopped, in

determining whether reasonable suspicion existed.

Before the stop of Baker’s vehicle, Investigator Isley believed he had

engaged in criminal activity, specifically the possession of marijuana with intent to

deliver, which is a felony. See Iowa Code § 124.401(1)(d). Investigator Isley

decided to stop Baker after he witnessed a suspected hand-to-hand narcotics

transaction. He knew several facts at the time he made this decision: (1) Baker’s

actions were consistent with the hand-to-hand narcotics transactions he knew from

personal experience and training; (2) an anonymous caller reported Baker had just

returned from out of town with a large shipment of marijuana and there was a large

quantity of marijuana in the Ricker Street house; (3) Baker left the Ricker Street

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house immediately before the suspected hand-to-hand narcotics transaction; (4)

Investigator Girsch recently witnessed Baker hesitating then attempting to avoid

being seen entering the house; and (5) Baker was arrested in Nevada several

months prior when officials there found him and a large quantity of marijuana in

the same vehicle. As someone with more than ten years of law enforcement

experience, including more than two years serving on the area Drug Enforcement

Task Force, Investigator Isley knew these facts were indicative of illegal narcotics

activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002) (stating a totality

of-the-circumstances review may consider the officers’ “experience and

specialized training to make inferences from and deductions about the cumulative

information available to them”); see also State v. Pals, 805 N.W.2d 767, 774 (Iowa

2011) (“[I]f police have a reasonable suspicion, grounded in specific and articulable

facts, that a person they encounter was involved in or is wanted in connection with

a completed felony, then a Terry stop may be made to investigate that suspicion.”

(quoting United States v. Hensley, 469 U.S. 221, 229 (1985)). When viewing the

totality of the circumstances, we, like the district court, find these facts create more

than a mere suspicion of criminal activity. See Tague, 676 N.W.2d at 204.

Therefore, reasonable suspicion supported the stop of Baker’s vehicle, and the

district court did not err in denying the suppression of evidence from the stop.

Baker and the dissent argue none of these individual facts create a

reasonable suspicion of illegal activity. We agree that none of the facts, standing

alone, generates reasonable suspicion justifying an investigatory stop. However,

our supreme court has directed us to consider “the totality of the circumstances”

when evaluating whether reasonable suspicion exists to justify an investigatory

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stop. Kreps, 650 N.W.2d at 641–42. Reasonable suspicion requires “considerably

less than proof of wrongdoing by a preponderance of the evidence.” Id. at 642.

(quoting State v. Richardson, 501 N.W.2d 495, 496–97 (Iowa 1993)). “One of the

most common situations in which investigatory stops occur is direct police

observation of suspicious conduct.” Id. at 643. Despite any weakness in any of

the facts standing alone, we find the totality of all circumstances when viewed with

Investigator Isley’s experience in drug enforcement generates reasonable

suspicion to justify the investigatory stop of Baker’s vehicle. See State v. Bumpus,

459 N.W.2d 619, 624 (Iowa 1990) (finding that, although law enforcement lacked

probable cause to arrest after witnessing a suspected narcotics transaction, all

factors known to the officers created “reasonable and articulable cause for

suspicion that criminal activity was taking place” to justify an investigatory stop).

B. Search warrant

A search warrant must be supported by probable cause. State v. McNeal,

867 N.W.2d 91, 99 (Iowa 2015). “Probable cause to search requires a probability

determination that ‘(1) the items sought are connected to criminal activity and (2)

the items sought will be found in the place to be searched.’” State v. Gogg, 561

N.W.2d 360, 363 (Iowa 1997) (quoting United States v. Edmiston, 46 F.3d 786,

789 (8th Cir. 1995)). “The issuing judge ‘is simply to make a practical, common

sense decision whether, given all the circumstances set forth in the affidavit before

him, including the “veracity” and “basis of knowledge” of persons supplying

hearsay information,’ probable cause exists.” Id. (quoting Illinois v. Gates, 462

U.S. 213, 238 (1983)). “In doing so, the judge may rely on ‘reasonable, common

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sense inferences’ from the information presented.” Id. (quoting State v. Green,

540 N.W.2d 649, 655 (Iowa 1995)).

All of the facts providing reasonable suspicion for the stop of Baker’s vehicle

also support the search warrant. Additionally, because the stop of his vehicle was

proper as explained above, his actions in slowly stopping and throwing a bag of

marijuana out his vehicle also support the issuance of the search warrant. See

State v. McGrane, 733 N.W.2d 671, 680 (Iowa 2007) (explaining evidence must

be suppressed under the exclusionary rule if the evidence was “discovered as a

result of illegal government activity”). These facts provide probable cause to

support the search warrant. See id.

Baker also argues the search warrant is invalid because its supporting

affidavit contains false statements.4 Specifically, he notes the affidavit mentions

the Nevada arrest but does not mention he was never charged or convicted

following the arrest, and he notes the affidavit mentions Investigator Girsch

observed him hesitate to enter the Ricker Street house but does not mention

Girsch wore plain clothes at the time.

To invalidate the affidavit, the defendant must show the affiant included a

“deliberate falsehood” or acted with “reckless disregard for the truth.” Groff, 323

4 In its brief, the State argued Baker waived any argument on the affidavit’s validity because he did not follow the proper procedure before the district court. Ordinarily, a defendant must make a preliminary showing of falsity in the affidavit before reaching an evidentiary hearing. State v. Groff, 323 N.W.2d 204, 209 (Iowa 1982) (citing Franks v. Delaware, 438 U.S. 154, 171–72 (1978)). While Baker made no such preliminary showing, his co-defendant raised the affidavit’s validity and the district court squarely ruled on the issue when denying the motions to suppress. At oral argument, the State acknowledged it never questioned the procedure used to challenge the affidavit’s validity before the district court and it had therefore waived any argument Baker failed to follow the proper procedure to challenge the affidavit’s validity. See Groff, 323 N.W.2d at 209.

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N.W.2d at 209 (quoting Franks, 438 U.S. at 171–72). “Allegations of negligence

or innocent mistake are insufficient.” Id. (quoting Franks, 438 U.S. at 171–72). “A

‘false’ affidavit statement is one which misleads the magistrate into believing the

existence of certain facts which enter into his thought process in evaluating

probable cause.” Id. at 210. Baker does not point to any explicitly incorrect

statements in the affidavit; instead, he notes the affidavit does not say he was not

charged or convicted following the Nevada arrest and it does not note Investigator

Girsch wore plain clothes when he saw Baker hesitate to enter the Ricker Street

house. Baker has presented no evidence the affiant, Investigator Isley,

deliberately obfuscated by omitting these facts. Nor has Baker shown a reckless

disregard for the truth that would mislead a magistrate who is familiar with criminal

investigations. The affidavit correctly said Baker was arrested in Nevada, and it

was not reckless to not also specify he had not been charged or convicted following

the arrest. The affidavit also clearly identified Investigator Girsch as an investigator

with the local drug enforcement task force who was conducting an investigation at

the time he witnessed Baker hesitate to enter the house. Investigator Girsch

testified he was identifiable as law enforcement despite wearing plain clothes and

he believed Baker recognized him as such. Accordingly, it was not reckless to not

also specify Investigator Baker wore plain clothes. Therefore, the affidavit did not

contain false statements. See id.

Furthermore, even if the affidavit contains false statements, those falsities

invalidate the warrant only if the warrant lacks probable cause without those

challenged statements. Id. at 209. Setting aside the challenged statements, the

warrant is still supported by the anonymous call and the observations of law

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enforcement that Baker left the Ricker Street house, engaged in a suspected hand

to-hand narcotics transaction, and tossed a bag of marijuana while slowly coming

to a stop after Sergeant Bose activated his emergency lights. These unchallenged

statements provide probable cause to support the affidavit.

IV. Ineffective Assistance

Baker next argues his counsel was ineffective for failing to file a motion to

suppress in case number AGCR212970.5 A successful ineffective-assistance-of

counsel claim requires proving “(1) counsel failed to perform an essential duty; and

(2) prejudice resulted.” Clay, 824 N.W.2d at 495. Prejudice resulted if, “but for the

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 496. Baker’s counsel filed a motion to suppress in case number

FECR213018, and he argues his counsel should have filed the same motion in

case number AGCR212970. As explained above, the court did not err in denying

the motion to suppress for FECR213018. Therefore, he cannot show prejudice

resulting from his counsel’s failure to file the same motion to suppress for

AGCR212970.

V. Sentencing

Finally, Baker argues the district court abused its discretion in imposing his

sentence because the court did not fully explain its reasons for the sentence.

When imposing a sentence, the district court must provide “a statement of reasons

on the record.” State v. Thacker, 862 N.W.2d 402, 408. “[A] ‘terse and succinct’

5 Baker was initially assisted by separate counsel in FECR213018 and AGCR212970. After his motion to suppress was denied, counsel in FECR213018 took over the representation of Baker in AGCR212970. On appeal, Baker does not specify which counsel was ineffective in failing to file a motion to suppress in AGCR212970.

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statement may be sufficient, ‘so long as the brevity of the court’s statement does

not prevent review of the exercise of the trial court’s sentencing discretion.’” Id.

(quoting State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989)). At the sentencing

hearing, the district court provided the following explanation to Baker:

I have chosen to run these matters concurrent because as I said they are serious matters. . . . They are serious matters no matter how we look at it, but I don’t think they’re so serious as to warrant a stacking of these matters . . . . I just don’t see it as being that critical. I have chosen not to go with the recommendation by your attorney to place you at the residential facility because as I have said, you have been to prison once and here it is six years later and you’re still doing this. You’re still doing drugs or at least you were doing drugs, so apparently all of the treatment modalities that your attorney pointed out a short while ago didn’t work because here you are.



This explanation is adequate for our review. Baker notes the court did not discuss

all of the factors of sentencing. See State v. Formaro, 638 N.W.2d 720, 725 (Iowa

2002) (stating the factors of sentencing include “the nature of the offense, the

attending circumstances, the age, character and propensity of the offender, and

the chances of reform”). However, the court is not required to explicitly address

every factor. See State v. Boltz, 542 N.W.2d 9, 11 (Iowa 1995) (“[T]he failure to

acknowledge a particular sentencing circumstance does not necessarily mean it

was not considered.”). We find no abuse of discretion in Baker’s sentence.

The district court properly denied Baker’s motion to suppress, and no

prejudice resulted from his counsel’s failure to file a similar motion to suppress in a related proceeding. Additionally, the district court did not abuse its discretion in imposing his sentence.



AFFIRMED.