Case Number: 16-1183
Judge: Amanda Potterfield
Court: COURT OF APPEALS OF IOWA
Plaintiff's Attorney: Thomas J. Miller
Sharon K. Hall
Assistant Attorney General
Defendant's Attorney: Andrew J. Boettger
Description: On November 9, 2015, Ames Police officers responded to a call from
Sandra Fairbanks reporting a broken window at her residence. While discussing
the incident with Fairbanks at the front door to her residence, Officer Vincent Junior
reported he could smell marijuana and see a hazy smoke inside the residence.
After entering the residence with Fairbanks’ consent, Officer Junior conducted a
protective sweep, handcuffed the occupants of the residence—including Williams,
Fairbanks, and a third adult—and applied for a search warrant. A warrant was
issued to search the Fairbanks residence and the three individuals, including
Williams, found there by the officers. In executing the search pursuant to the
warrant, officers found $1240 in cash and a key to the apartment in Williams’s
pockets. In a bedroom, officers found marijuana, white powder later identified as
cocaine, and a prescription bottle with two hydrocodone pills. Mail with Williams’s
name and male clothing were also found in the bedroom.
II. Standard of Review.
Because this case involves the constitutional right to be free from
unreasonable searches and seizures, our review of the district court’s suppression
ruling is de novo. See State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004). To
determine whether probable cause has been established for the issuance of a
search warrant, we review the totality of the circumstances. Id. We do not make
an independent determination of probable cause but determine whether the
issuing judge had a substantial basis for concluding probable cause existed. Id.
We examine only the information actually presented to the court at the time of the
application for the warrant. Id.
a. Probable Cause.
The Iowa Supreme Court has held a trained officer’s detection of a
sufficiently distinctive odor, by itself or when accompanied by other facts, may
establish probable cause. State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011).
Williams argues the warrant application did not demonstrate Officer Junior was
qualified to recognize the odor of marijuana. Officer Junior’s warrant application
asserts there were illegal narcotics in the residence because he could “smell the
odor of raw or burnt marijuana” from outside the residence. Williams claims Officer
Junior’s inability to differentiate between raw or burnt marijuana casts doubt as to
his ability to recognize marijuana in any form.
Officer Junior’s warrant application includes his qualifications in drug
recognition: he had been a police officer for three years, had been involved with
illegal drug investigations, attended classes at the Midwest Counter Drug Training
Center, and had held conversations with cooperative suspects and informants
“about illegal drugs, their use, and distribution.” Williams argues the application
did not specifically include training for marijuana recognition or the smell of
marijuana. Williams compares Officer Junior’s qualifications to the qualifications
of the officer in Watts, who had been a “Davenport police officer for seven-and-a
half years, had been involved in the investigation of controlled substance offenses
for the past two years, and had attended schools pertaining to the investigation of
controlled substance offenses.” Id. at 855. That officer was found qualified to
detect the odor of marijuana. Officer Junior, although having less time on the job
than the officer in Watts, has very similar qualifications. All reasonable inferences
should be drawn in support of finding a probable cause for the search warrant.
State v. McNeal, 867 N.W.2d 91, 100 (Iowa 2015). Officer Junior’s qualifications
as set forth in the search warrant application are sufficient to establish probable
cause in his identification of the odors coming from the residence.
Williams next argues there is a lack of nexus between several items
included on the search warrant and the facts contained in the search warrant
Although a nexus must be established between the items to be seized and the place to be searched, direct observation is not required. That nexus can be found by considering the type of crime, the nature of the items involved, the extent of the defendant’s opportunity for concealment, and the normal inferences as to where the defendant would be likely to conceal the items.
State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982) (internal citations omitted).
In determining if evidence seized pursuant to a warrant should be suppressed, ‘the affidavit of probable cause is interpreted in a common sense, rather than a hypertechnical, manner.’ We draw all reasonable inferences to support the judge’s finding of probable
cause and give great deference to the judge’s finding. Close cases are decided in favor of upholding the validity of the warrant.
McNeal, 867 N.W.2d at 100 (internal citations omitted).
In an action involving a structural challenge to the validity of a warrant, the
burden of proof rests with the defendant. State v. Fremont, 749 N.W.2d 234, 236
Williams argues methamphetamine, cocaine, and opiates and its
derivatives were included in the warrant as items to be seized without a basis in
the application to believe they would be located at the residence or on the persons
named. Officers seized white powder, later identified as cocaine, and a
prescription bottle with two hydrocodone pills. Even if the search warrant
application does not draw a nexus to these particular illegal drugs, they would have
been discovered inevitably during the search for marijuana. Both the hydrocodone
pills and the cocaine were found in places where marijuana could have been
hidden. The inevitable-discovery doctrine allows evidence otherwise
constitutionally excluded to be admitted when the police would have inevitably
discovered the same evidence if acting properly. State v. Tyler, 867 N.W.2d 136,
171 (Iowa 2015).
Officers found identification and mail addressed to Williams in the bedroom
where the drugs were found and a key to the apartment in Williams’s pocket. The
warrant allowed officers to search for: “evidence of occupancy, residency, and or
ownership of the premises described above, including but not limited to utility and
telephone bills, sealed envelopes, keys, lease agreements, mortgage records,
loan documents, passports, photographs, and/or keys relating to safety deposit
boxes.” Williams argues there is no credible connection between these items and
the residence or people named in the application. Williams also argues there is
no indication as to how items in this category constitute evidence of a crime of any
type. We agree with the district court that because three people were present at
the residence it would be important to determine who was in actual or constructive
possession of the controlled substances that might be and later were found. See
State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (noting the State must
establish the defendant “exercised dominion and control over the contraband, had
knowledge of the contraband’s presence, and had knowledge the material was a
narcotic.”). A nexus exists between evidence of residency and the facts contained
in the search warrant application.
Officers found $1240 in cash in Williams’s pocket. The search warrant
authorized the seizure of “United States currency, food stamps and/or any other
means of exchange commonly used in drug transactions.” Williams argues there
is no nexus between the facts contained on the warrant application, which do not
indicate a suspicion of drug dealing, and searching for currency. He also argues
there is no indication as to how items in this category constitute evidence of a crime
of any type. We do not reach Williams’s arguments regarding whether a nexus
exists because the currency would have inevitably been discovered in a search
incident to Williams’s arrest.
As noted above, the inevitable-discovery doctrine allows evidence gathered
despite Fourth Amendment violations to be admissible when the police would have
inevitably discovered the same evidence acting properly. Tyler, 867 N.W.2d at
171. Williams was arrested following the execution of the warrant. A search
incident to arrest would have been performed, which would have yielded the
currency found. A search incident to arrest allows a police officer “to search a
lawfully arrested individual’s person and the immediately surrounding area without
a warrant.” State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citations
Williams also argues there is no credible connection between the following
categories of property listed in the search warrant and the residence or people
named, or any indication as to how items in these categories constitute evidence
of a crime of any type:
1. Any and all paraphernalia, instrumentalities, substances, scales or documents which are evidence of the illicit possession, use, dealing, or distribution in controlled substances. 2. Addresses and/or telephone books, papers, cell phones, electronic records and photographs including names, address, and telephone numbers, of potential customers or associates of the occupants or residents of the above premises. 3. Books, records (written or electronic), receipts, bank statements and records, money drafts, letters of credit, money orders, cashier’s checks, passbooks, and bank checks.
No such items were found; none were offered into evidence; there is nothing
described in those paragraphs to be suppressed. “The appropriate remedy for [a
Fourth Amendment] violation is suppression of all evidence directly or indirectly
gathered through the search.” State v. Grant, 614 N.W.2d 848, 855 (Iowa Ct. App.
2000). Because there was no evidence found, there is no evidence to suppress.
We do not address the issue of whether there is a nexus between these items
listed and the warrant application because Williams has no available remedy.
Outcome: The district court properly denied Williams’s motion to suppress.
Reasonable inferences could be drawn to conclude Officer Junior was qualified to
detect the odor or marijuana, supporting a finding of probable cause. The
hydrocodone pills and cocaine would have inevitably been discovered during the
search for marijuana, as would the $1240 in a search incident to arrest. A nexus
exists between documentation of residency and property to be seized. We affirm
the district court’s denial of Williams’s motion to suppress evidence.