Opinion
No. 0-728 / 00-0042.
Filed January 10, 2001.
Appeal from the Iowa District Court for Hamilton County, TIMOTHY J. FINN, Judge.
Lon Bennett appeals from his convictions for attempted murder in violation of Iowa Code section 707.11 (1997) and willful injury in violation of Iowa Code section 708.4 (1997). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Patrick Chambers, County Attorney, for appellee.
Heard by STREIT, P.J., and VOGEL and MILLER, JJ.
Lon Bennett appeals from his convictions for attempted murder in violation of Iowa Code section 707.11 (1997) and willful injury in violation of Iowa Code section 708.4 (1997). We affirm the district court's ruling on the motion to suppress, as we find Bennett's parents consented to police entry into the home and the subsequent search of the basement.
Background facts . On October 19, 1998, Sonya Harms Bennett finished her shift at a convenience store at midnight. She left the building through the back entrance, threw a bag of garbage into the outdoor receptacle and walked toward her car. As she approached her vehicle, she was attacked from behind and thrown to the ground. The attacker straddled her hips, stabbing her repeatedly in the face, neck and chest and slicing her neck. Sonya was prevented from calling for help by the man's hand lodged in her mouth. During the attack, the perpetrator told Sonya the attack was in retribution for alleged relationships she had had with other men. Sonya recognized her attacker as her estranged husband.
While the attack was occurring, Dennis Morey was waiting at the convenience store to see Sonya as she ended her shift. As he waited, he saw movement from the area by Sonya's vehicle. He approached the scene and was told by a man crouched over Sonya that she was hurt. Morey ran inside to seek help. Bennett fled the scene. Sonya made her way into the store and immediately stated, "Lon did it". Police arrived and Sonya again stated that Bennett committed the attack and told them his current address, at the residence of his parents.
Police officers went immediately to the address given to them and knocked on the door. Bennett's father, Gene Bennett, answered the door and spoke with officers. After inquiring whether Bennett was home, the officers were told he was asleep. Officers then asked if they could speak to him and were told they could. One officer testified Gene held the door open and stepped back to allow the officers to enter. After they entered the home, they followed Gene down the hall. Gene called to Bennett that the police wanted to talk to him and he emerged from the bathroom. He was wet, as if he had just rinsed off or was very sweaty, and had fresh scratches on his face.
Next, the officers asked permission to search the basement. The senior Bennetts agreed, even turning on the light for the officers. In the basement, officers found wet shoes and a stepladder placed in front of an unlatched window. Additionally, they seized clothing containing wet blood stains and a gym bag holding a small wooden club, a mask, leather gloves with the fingers cut out, a roll of duct tape and a full can of charcoal lighter fluid.
Bennett filed a motion to suppress the seized evidence from trial, asserting the officers entered the house illegally. The trial court overruled the motion. Sonya, although critically injured, survived the incident and testified at trial against Bennett. He was convicted of attempted murder and willful injury. Bennett now appeals.
Scope of review . In assessing alleged violations of constitutional rights, our standard of review is de novo. State v. Washburne, 574 N.W.2d 261, 263 (Iowa 1997). We conduct an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Astello, 602 N.W.2d 190, 195 (Iowa App. 1999). In reviewing the district court's ruling on a motion to suppress, we consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997). An adverse ruling on a motion to suppress will preserve error for our review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
Motion to suppress . Bennett alleges the trial court erred in overruling his motion to suppress the evidence seized from his parent's home. He asserts the police officers' warrantless search was illegal and, therefore, the fruits of the search should have been suppressed. The State contends the trial court did not err, as the officers validly entered the home under the consent exception to the warrant requirement of the Fourth Amendment. In the alternative, the State argues we could affirm the trial court if we found the police entered the home under the exigent circumstances exception.
The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect individuals against unreasonable searches and seizures. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). Searches and seizures conducted without prior approval by a judge or magistrate are per se unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. Id. The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996). These exceptions include searches based on consent, plain view, exigent circumstances, and searches incident to arrest. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993). Evidence obtained in violation of the Fourth Amendment is inadmissible at trial under the exclusionary rule. See State v. Ahart, 324 N.W.2d 317, 318 (Iowa 1982) (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453-54 (1963)).
In it's Ruling on Motions to Suppress and Motion in Limine, the trial court made the following findings:
The officers knocked on the door and the door was answered by the Defendant's father, Gene Bennett. There is a dispute about what happened next. The Defendant's parents state that they did not consent to allow the officers to come into the house to look for Lon Bennett while the officers state that they did agree to do so. Significantly, however, even the Bennetts agree that the officers asked where Lon Bennett was and Mr. Bennett's father stood at the door and pointed to the bathroom. The officers state that the elder Mr. Bennett stepped back and to the side as he gestured. The Bennetts indicate the officers just barged in. Gene Bennett testified that after the initial conversation at the doorsteps when the officers said they were looking for Lon Bennett, he turned and pointed toward the bathroom door; that he held the door open and the officers went by. Again, however, neither of the Bennetts testified that they said anything to the officers to stop, or get out, or protest the entry. Although a homeowner is not required to protest, the Court views this fact as being more consistent and corroborative of the officer's version that the Bennetts voluntarily allowed them into their house than Bennett's contention they did not consent to the search.
Bennett maintains the officers did not have consent to enter his parent's home but, rather, his father acquiesced to the officer's apparent authority. Mere acquiescence to a claim of lawful authority is insufficient to show the consent was freely and voluntarily given. State v. Ahern, 227 N.W.2d 164, 166 (Iowa 1975). However, the assertion of police authority in Ahern was exerted by a police officer kicking in the exterior door prior to obtaining consent to search the premises. Id. at 165. In the present case, we do not have such an overt claim of authority by the police. In fact, Bennett's father answered the officer's questions regarding his son and then, in response to an inquiry of his whereabouts, he, by his own testimony, turned in the open doorway, and pointed to the bathroom. Interpreting this to be an invitation, officers entered the home.
Bennett contends the officers neither asked for, nor received express permission to enter the residence. Similar nonverbal gestures have been found sufficient to grant consent. United States v. Cotnam, 88 F.3d 487, 495 (7th Cir. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 859 (1973)). "[C]onsent need be neither express nor verbal." United States v. Rosario, 962 F.2d 733 (7th Cir. 1992) (finding nonverbal gesture to enter demonstrated voluntarily given consent). In Bennett's case, we do not have a forced entry or a claim of lawful authority by officers to enter. Instead, we have Gene agreeing to allow the officers to talk with Bennett, followed by a nonverbal gesture interpreted as an invitation to enter by both of the officers who entered the home. The trial court agreed. Even though our review is de novo, we give weight to the district court's findings of fact because that court had the opportunity to personally assess the credibility of the witnesses. State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000). Additionally, an examination of the record indicates the senior Bennetts did not ask the officers to wait at the door or in any way object to their entry into the home. While they are not required to protest an entry, this failure can be considered in determining whether consent was given in this case. See Cotnam, 88 F.3d at 495. We find, therefore, Gene's answer to the officers' questions, together with his invitational gesture, gave the officers consent to enter the home.
Exigent circumstances . In the alternative, the State contends the officers' entry into the home fell under the exception of exigent circumstances. Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991). We look to several factors to determine whether exigent circumstances exist at the time. These factors are as follows:
(1)a grave offense is involved;
(2)the suspect is reasonably believed to be armed;
(3)there is probable cause to believe the suspect committed the crime;
(4)there is strong reason to believe he is on the premises;
(5)there is a strong likelihood of escape if not apprehended; and
(6)the entry, though not consented to, is peaceable.
State v. Hatter, 342 N.W.2d 851, 855 (Iowa 1983).
In the record before us, these factors were all met. We find the multiple stabbing of Sonya, an unarmed victim, was a very grave offense; the suspect, Bennett, was reasonably believed to be armed with a knife; probable cause was provided by Sonya's identification of Bennett; officers had reason to believe Bennett was at his parents' home, as reported by Sonya; escape was a likelihood if officers did not detain Bennett; and the entry by officers was a peaceable one. This analysis, in addition to the fact the officers arrived at the Bennett home just seven minutes after the call for help had been placed, is ample support for us to find the search valid under the exigent circumstances to the warrant requirement.
Consent to search the basement . Having determined the officers were in the home under a valid exception to the warrant requirement, we agree with the trial court that the search of the basement was also consensual. Our review of the record clearly indicates Bennett's parents consented to a search of the basement, even accompanying officers and turning on the lights as they proceeded. We find the officers entered the Bennett residence under a valid exception to the warrant requirement. Therefore, the trial court's decision to overrule Bennett's motion to suppress was correct. Accordingly, we affirm.
AFFIRMED.