Opinion
No. 2-983 / 01-1823
Filed March 26, 2003
Appeal from the Iowa District Court for Polk County, George Bergeson, Judge.
The defendant challenges the district court's denial of his motion to suppress evidence and raises ineffective assistance of counsel claims. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Roxann Ryan, Assistant Attorney General, Sarcone, County Attorney, and Charles Kenville, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
On appeal of his conviction for drug possession, John David Allen challenges the district court's denial of his motion to suppress. He contends:
1) the warrant was invalid and
2) Des Moines police officers did not comply with the knock and announce rule before searching his home. He also raises ineffective assistance of counsel claims.
We affirm.
I. Background Facts and Proceedings
Des Moines police officers received an anonymous complaint that Allen was selling drugs from his home. The investigating officer verified that Allen was the owner of the home, determined the property had been the site of a consensual search in 1997, and noted Allen had been convicted of a drug offense in that same year. The officer then conducted a trash search and uncovered drug-related items as well as a prescription in Allen's name.
Based on this information, the officer drafted a search warrant application. A warrant for the home was issued. On arriving at the home to execute the warrant, the officer testified she knocked and announced her presence before entering the home. Allen disputed this testimony. Officers discovered drugs and drug-related items in the home.
The State charged Allen with possession of marijuana (second offense). Iowa Code § 124.401(5) (1999). Allen's first attorney moved to suppress the evidence but withdrew the motion when Allen did not timely appear for the suppression hearing. Allen obtained new counsel who filed a second motion to suppress. Counsel urged that good cause existed for the admittedly untimely second filing.
The district court proceeded to the merits of the suppression motion and, after taking evidence, summarily overruled it. Following a bench trial, the court adjudged Allen guilty and imposed sentence. This appeal followed.
II. Validity of Warrant
Allen challenges the validity of the warrant on the grounds that A) the application contains a misrepresentation concerning the consensual search, B) his 1997 drug conviction is stale, and C) the remaining evidence does not establish probable cause to support issuance of the warrant. As this challenge implicates the Fourth Amendment to the United States Constitution, our review is de novo. State v. Randle, 555 N.W.2d 666, 668 (Iowa 1996). If we determine the warrant application contained impermissible information, we will not consider that information in deciding whether there is probable cause to support the warrant. See State v. Niehaus, 452 N.W.2d 184, 186-87 (Iowa 1990) (stating offensive material in a search warrant is to be deleted). State v. Paterno, 309 N.W.2d 420, 424 (Iowa 1981) (stating search warrant to be invalidated on proof of misrepresentation).
A. 1997 Consensual Search. Following the suppression hearing, the Assistant County Attorney conceded that the investigating officer did not determine whether Allen was in the home or was its owner when the home was consensually searched in 1997. He advised the court, "I think you can strike that portion of the warrant." Based on this statement, we will not consider the 1997 consensual search in deciding whether the warrant is supported by probable cause. See McCracken v. Edward D. Jones Co., 445 N.W.2d 375, 378 (Iowa Ct.App. 1989) (stating "a litigant cannot complain of error which he has invited or to which he has assented").
B. 1997 Conviction. Allen argues his 1997 conviction for drug possession also must be excluded from consideration. We agree for two reasons. First, the State did not establish a nexus between that conviction and the criminal activity triggering the warrant application. See Randle, 555 N.W.2d at 670. Specifically, there was no showing that the conviction was based on a seizure of drugs on the same premises or that Allen was on those premises. Second, assuming there was a nexus, the evidence was stale. See State v. Gogg, 561 N.W.2d 360, 367 (Iowa 1997). The conviction occurred four years before the search warrant application was drafted and the investigating police officer made no showing of ongoing criminal activity in the interim. For these reasons, we decline to consider the 1997 conviction in deciding whether there was probable cause to support the warrant.
C. Probable Cause. We are left with the anonymous tip and the trash search to support the warrant application. In Allen's view, this evidence is insufficient to support a finding of probable cause to issue the warrant. Probable cause exists if a reasonably prudent person would believe a crime has been committed on the premises or evidence of a crime is being concealed there. State v. Wells, 629 N.W.2d 346, 355 (Iowa 2001). An issuing magistrate is to examine the totality of the circumstances to determine if there is a fair probability that contraband will be found on the premises. Randle, 555 N.W.2d at 670.
This standard was satisfied, as the anonymous tip was corroborated by the evidence found in the trash. As a preliminary matter, we note Allen had no legitimate expectation of privacy in his garbage. State v. Skola, 634 N.W.2d 687, 690 (Iowa Ct.App. 2001); State v. Henderson, 435 N.W.2d 394, 396 (Iowa Ct.App. 1988). Therefore, officers were free to conduct a warrantless search of the trash bags left on his curb. Id. That search revealed drug related items, including a baggie that tested positive for methamphetamine. Additionally, the bag in which the drug items were found was tied to Allen based on a prescription in the same trash bag. We believe this evidence is sufficient to allow a reasonably prudent person to surmise that illegal drug activity was occurring in Allen's home. Accordingly, we conclude the search warrant for Allen's home was supported by probable cause.
III. Knock and Announce Rule
Allen next contends officers violated the statutory "knock and announce" rule. Iowa Code § 808.6. Our review of this issue is on error. State v. Ceron, 573 N.W.2d 587, 589 (Iowa 1997); State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997); but see State v. Cohrs, 484 N.W.2d 223, 224 (Iowa Ct.App. 1992) (stating review is de novo). We review the district court's fact findings only to determine whether they are supported by substantial evidence. State v. Cullison, 215 N.W.2d 309, 313 (Iowa 1974).
In this case, the district court made no fact findings. However, "we assume as fact an unstated finding that is necessary to support the judgment. . ." Hubby v. State, 331 N.W.2d 690, 695 (Iowa 1983).
Section 808.6 states, "[t]he officer may break into any structure or vehicle where reasonably necessary to execute the warrant if, after notice of this authority and purpose the officer's admittance has not been immediately authorized." The investigating officer testified that she went up to the door of Allen's home, knocked, and stated "Police. Search warrant." This testimony constitutes substantial evidence of compliance with the "knock and announce" statute.
IV. Ineffective Assistance of Counsel
Allen contends his second trial attorney was ineffective in failing to obtain a ruling on whether he had good cause for filing an untimely motion to suppress and in relying on the repealed version of Iowa Code section 808.3, regarding the credibility of informants. We reject both contentions because Allen was not prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984) (requiring showing that counsel breached an essential duty and prejudice resulted).
First, notwithstanding the untimeliness of defense counsel's motion, the district court proceeded to the merits of that motion. Second, the fact that counsel relied on a repealed statute before the district court is immaterial, as long as he preserved for appeal all the issues raised here. See Gogg, 561 N.W.2d at 368 (only considering issues presented to and decided by the district court). He did so.
V. Disposition
We conclude the information gleaned from the anonymous complaint and trash search established probable cause for the issuance of the search warrant. There is substantial evidence to establish compliance with the "knock and announce" statute. We reject Allen's ineffective assistance of counsel claims.