Summary
In Krumboltz, the Iowa Court of Appeals concluded that reasonable suspicion existed for a search of defendant's automobile based on the defendant's purchase of eight boxes of products containing pseudoephedrine plus evidence of methamphetamine manufacturing found during a search of a passenger in the car.
Summary of this case from U.S. v. AmelingOpinion
No. 1-842 / 01-0220.
Filed January 9, 2002.
Appeal from the Iowa District Court for Polk County, D.J. STOVALL, Judge.
Sean Krumboltz appeals his conviction for conspiracy to manufacture methamphetamine, possession of methamphetamine with intent to deliver, possession of ephedrine or pseudoephedrine with intent to use as a precursor, possession of lithium with intent to use as a precursor, and possession of methamphetamine. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.
Thomas M. Walter, Ottumwa, and Michael Carroll, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Linda Hines, Assistant Attorney General, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
On May 19, 2000, Sean Krumboltz was arrested after a Coastal Mart employee reported to police that a customer had purchased eight boxes of ephedrine. The clerk pointed a police officer to the car she believed Krumboltz had arrived in and informed him that Krumboltz was in the restroom. Upon seeing a passenger in the car make furtive movements "as if trying to hide something," the police officer searched the passenger, finding a variety of items commonly used in the manufacture of methamphetamine and a green substance he believed to be marijuana. The police officer then did a pat-down search of Krumboltz, finding a plastic bag containing ephedrine and a large roll of money. Subsequent search of the car revealed a variety of materials commonly used in the manufacture of methamphetamine, as well as 1.8 grams of methamphetamine.
Following a bench trial, Krumboltz was found guilty of conspiracy to manufacture methamphetamine, possession of methamphetamine with intent to deliver, possession of ephedrine or pseudoephedrine with intent to use as a precursor, possession of lithium with intent to use as a precursor, and possession of methamphetamine. The court imposed a separate consecutive sentence on each charge, for a total of forty-six years in prison.
Upon our de novo review of the record, we find the district court properly denied Krumboltz's motion to suppress inculpatory evidence obtained from the above-mentioned searches. See State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997) (constitutional issues are reviewed de novo in light of the totality of the circumstances). We initially note that Krumboltz lacks standing to contest the violation of another person's constitutional rights and, thus, cannot challenge the search of Gary Hansel, the passenger in the car. See State v. Becker, 458 N.W.2d 604, 608 (Iowa 1990). We conclude the evidence of drug manufacture found when searching Hansel, taken together with the large purchase of ephedrine by Krumboltz, was sufficient cause to support a reasonable belief by the police officers that criminal activity may have occurred. See Becker, 458 N.W.2d at 608 (proper to consider knowledge police officers obtained through illegal search of another in evaluating reasonableness of the search of defendant); State v. Dixon, 241 N.W.2d 21, 23 (Iowa 1976) (reasonable cause requires showing officer had specific and articulable cause to reasonably believe criminal activity was afoot). The district court's decision is accordingly affirmed on this issue.
Krumboltz also challenges the sufficiency of the evidence connecting him to the methamphetamine and ephedrine seized. He argues the State failed to prove that the ephedrine was found on his person or that he constructively possessed the items found in the car. We review claims of insufficient evidence for errors at law. Iowa R. App. P. 4. A verdict of guilty is binding on appeal unless there is not substantial evidence in the record to support it, or it is clearly against the weight of the evidence. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). Viewing the evidence, including all legitimate inferences that may fairly and reasonably be deduced, in the light most favorable to the State, we find the State met its burden to prove Krumboltz's possession of the disputed materials. See State v. Maghee, 573 N.W.2d 1, 9-10 (Iowa 1997). Possession of ephedrine was proved through the testimony of the gas station attendant, who testified she sold Krumboltz eight bottles of ephedrine, and a police officer, who testified that a plastic bag of ephedrine was found on Krumboltz. The court, as the fact-finder, could also infer that Krumboltz was in constructive possession of the methamphetamine found in the car based on evidence that the car was the only car in the Coastal Mart parking lot not belonging to employees, Hansel was seated in the passenger seat and the driver's seat was empty, instrumentalities of methamphetamine manufacture were found in the car, and substantial amounts of a precursor to methamphetamine had just been purchased by Krumboltz. See State v. Rudd, 454 N.W.2d 570, 571-72 (Iowa 1990) (constructive possession is all that is necessary and occurs when accused maintains control or right to control narcotic). We affirm on this issue.
Krumboltz next argues the district court imposed an illegal sentence in failing to merge several of his convictions . See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (Double Jeopardy Clause prohibits multiple punishments for same offense). Since a constitutional challenge is at issue, our review is de novo. State v. Gregg, 464 N.W.2d 431, 432 (Iowa 1990). The State concedes that Krumboltz's conviction of the lesser offense of possession of methamphetamine should have been merged with his conviction of the greater offense of possession of methamphetamine with intent to deliver. See Iowa Code § 701.9 (1999) (if person is convicted of two public offenses and one is lesser-included offense of the other, sentencing court shall enter judgment of guilty upon only greater offense). These two offenses are therefore merged, and separate judgment and sentence for possession of methamphetamine must be vacated. We reject, however, Krumboltz's contention that possession of ephedrine or lithium with intent to use as a precursor is a lesser-included offense of conspiracy to manufacture methamphetamine. See Finnel, 515 N.W.2d at 43 (lesser offense is only included in greater offense if it is impossible to commit the greater offense without also committing the lesser offense). We also find the court properly refused to merge the offenses of conspiracy to manufacture methamphetamine and possession of methamphetamine. Iowa Code section 706.4 is inapplicable to these convictions because possession of methamphetamine is not the offense underlying a conviction of conspiracy to manufacture methamphetamine. See Iowa Code § 706.4 (prohibiting separate convictions and sentences for both conspiracy and the offense committed pursuant to such conspiracy); see also State v. Smith, 476 N.W.2d 86, 91 (Iowa Ct.App. 1991) (convictions do not merge pursuant to section 706.4 where offense conspired to commit is not identical to offense committed). Moreover, conspiracy to manufacture methamphetamine and possession of methamphetamine are not alternative methods of committing the same crime; but rather are separately defined crimes punishing separate acts.
We have carefully considered all issues raised on appeal and find they have no merit or are effectively resolved by the foregoing. The judgment of the court is affirmed in part, vacated in part, and remanded for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.