Opinion
No. 4-367 / 03-1829.
August 11, 2004.
Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.
John Douglas Clark appeals from his conviction for possession of methamphetamine in violation of Iowa Code section 124.401(5) (2001). AFFIRMED.
Drew Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Harold Denton, County Attorney, and Susan Nehring, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
John Douglas Clark appeals from his conviction for possession of methamphetamine in violation of Iowa Code section 124.401(5) (2001).
I. Background Facts Proceedings
Clark was charged with this offense following two warrantless entries and a subsequent execution of a search warrant at his Cedar Rapids home. The circumstances leading up to and forming the magistrate's issuance of the relevant search warrant are detailed in the application and affidavit filed by Cedar Rapids police officer Alan Fear. The search warrant application included the following:
OFFICER SIMS WAS DISPATCHED TO THE RESIDENCE AT 3747 H AVENUE NORTHEAST REGARDING A NOISE DISTURBANCE. UPON ARRIVAL, OFFICER SIMS WAS INVITED INTO THE HOUSE BY THE RESIDENT, JOHN CLARK (DOB 3-5-60). AS OFFICER SIMS ENTERED THE RESIDENCE, JOHN CLARK OBSERVED THAT HE INVITED A POLICE OFFICER INTO HIS HOME. CLARK BECAME VERY NERVOUS AT THAT TIME, JUMPING UP OFF OF THE COUCH DROPPING SEVERAL STRIPS OF ALUMINUM FOIL THAT HE HAD IN HIS HANDS. CLARK WALKED OUTSIDE WITH OFFICER SIMS AND STATED THAT HE WOULD TURN HIS STEREO DOWN. AS OFFICER SIMS LEFT THE RESIDENCE HE WAS CURIOUS ABOUT THE STRIPS OF ALUMINIM FOIL THAT CLARK HAD IN HIS HANDS. OFFICER SIMS SUSPECTED POSSIBLE NARCOTICS ACTIVITY AT THE RESIDENCE. OFFICER SIMS CALLED ME TO HIS LOCATION. I ADVISED OFFICER SIMS THAT PEOPLE COMMONLY USE ALUMINUM FOIL TO BURN METHAMPHETAMINE WHILE THEY INHALE THE FUMES. OFFICER SIMS AND I DECIDED TO GO BACK TO 3747 H AVENUE NORTHEAST FOR FURTHER INVESTIGATION OF THE POSSIBLE NARCOTICS ACTIVITY.
ON 7-13-02 AT 2325 HOURS OFFICER KEVIN SIMS AND THE AFFIANT WERE INVESTIGATING POSSIBLE NARCOTICS USE AT 3747 H AVENUE NORTHEAST. UPON ARRIVAL, THE AFFIANT WAS STANDING IN THE DRIVEWAY, ALONGSIDE OF THE HOUSE NEAR AN OPEN WINDOW. THE AFFIANT COULD HEAR 3 PEOPLE INSIDE THE RESIDENCE IN THE LIVING ROOM AREA TALKING. AS THE AFFIANT WAS WATCHING AND LISTENING TO THE THREE SUBJECTS THROUGH THE OPEN WINDOW I OBSERVED THE THREE SUBJECTS TO BE USING METHAMPHETAMINE. THE SUBJECTS WERE USING STRIPS OF ALUMINUM FOIL, WHICH THEY USED TO BURN THE METH WHILE INHALING THE FUMES. AS THE THREE INDIVIDUALS WERE BURNING THE METH, THEY WERE TALKING ABOUT HOW THEY PACKAGE THEIR METH AND WHERE THEY HIDE THEIR NARCOTICS. AS ONE OF THE SUBJECTS OPENED THE FRONT DOOR ATTEMPTING TO LEAVE THE RESIDENCE, OFFICER SIMS AND I SECURED THE THREE INDIVIDUALS AND TOOK CONTROL OF THE NARCOTICS THAT WE OBSERVED THEM USING. THESE THREE MALES WERE JOHN CLARK (DOB 3-5-60), MICHAEL MITCHELL (DOB 2-4-62), AND BRADLEY BURNELL (DOB 4-9-70). THERE WERE TWO BAGGIES OF YELLOWISH POWDER IN PLAIN VIEW THAT TESTED POSITIVE FOR METH. SEVERAL STRIPS OF ALUMINUM FOIL WITH BURNT METH RESIDUE, BUTANE TORCHES USED FOR COOKING METH, ALCOHOL SWABS AND NEEDLES WITH SYRINGES USED FOR INJECTING THE METH, AND SEVERAL EMPTY BAGGIES WITH WHITE POWDERY RESIDUE. ALL ITEMS WERE IN PLAIN VIEW IN THE LIVING ROOM AREA WHERE OFFICER SIMS AND THE AFFIANT WITNESSED THE OFFENSE TAKE PLACE. UPON DOING A CLEARANCE SWEEP OF THE RESIDENCE TO MAKE SURE THERE WERE NO OTHER SUBJECTS HIDING, OFFICER SIMS OBSERVED PACKAGING MATERIALS ON THE FLOOR IN THE BEDROOM AREA AND A BAGGIE OF MARIJUANA WHICH WAS LAYING OUT IN PLAIN VIEW.
EARLIER IN THE EVENING, EMPLOYEES FROM WALMART WEST CALLED IN TO THE POLICE DEPARTMENT STATING THAT THERE WERE THREE SUBJECTS DRIVING A GRAY PICKUP TRUCK WITH NO LICENSE PLATES, WITH A "PRO NET" TAILGATE ON THE TRUCK AT THE STORE PURCHASING A LARGE QUANTITY OF LITHIUM BATTERIES. LITHIUM BATTERIES ARE COMMONLY USED IN THE MANUFACTURING OF METHAMPHETAMINE. THE VEHICLE MATCHING THE DESCRIPTION GIVEN BY WALMART EMPLOYEES WAS SITTING IN THE FRONT LAWN.
. . . .
ON 1-24-02 A DRUG SEARCH WARRANT WAS EXECUTED AT 1764 MALLORY STREET SOUTHWEST WHICH WAS JOHN CLARK'S FORMER RESIDENCE. ON THIS DATE OFFICERS LOCATED SEVERAL METHAMPHETAMINE LAB COMPONENTS INSIDE OF HIS RESIDENCE.
The search warrant was issued as requested. Execution of the warrant resulted in seizure of the following items: weapons, ammunition, syringes, various types of drug paraphernalia, a plastic bag containing marijuana, plastic bags containing methamphetamine, pseudoephedrine pills, a butane fuel container, rock salt, empty lithium battery packages, plastic tubing, a glass jar, a glass pipe, and a marijuana pipe. Prior to trial, Clark moved to suppress, alleging:
The evidence seized as a result of a search of [Clark's] residence was obtained in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article One, Section Eight of the Iowa Constitution. In particular the search was conducted without probable cause and exigent circumstances; nor did the officers have the Defendant's consent to conduct said search. Furthermore, the search did not fall within an exception to the warrant requirement as it was not a valid search incident to arrest.
At the suppression hearing Sims and Fear testified to the facts and circumstances set forth in the earlier quoted search warrant application. The resulting ruling by the trial court includes the following findings and conclusions:
Officer Sims' first observations, therefore, fall within the post-intrusion plain-view doctrine described by the Iowa Supreme Court in State v. Davis, 228 N.W.2d 67, 70-71 (Iowa 1975). The officer was in a place he was legally allowed to be and made an inadvertent observation while there. Id.; State v. Vincik, 436 N.W.2d 350, 354 (Iowa 1989). The information in paragraph 2 of the affidavit in support of the search warrant was legally obtained, but does not, by itself support probable cause.
. . . .
The information obtained by the officers at the window would give a "person of reasonable prudence the belief a crime had been committed or that evidence of a crime might be located in the particular area to be searched." State v. Naujoks, 637 N.W.2d at 108; State v. Poulin, 620 N.W.2d 287, 290 (Iowa 2000). At that point the officers had probable cause but still no warrant. Although the observations made at the window may be considered in evaluating probable cause, the record here fails to justify the entry into the home to arrest the occupants and to perform a sweep of the house.
. . . .
With regard to the third police action, I cannot conclude there was sufficient evidence of exigent circumstances to justify the warrantless search and seizure inside the living room. The record is devoid of an articulable basis to support a legitimate officer safety concern. Although there is an assertion by one of the officers of a fear for officer safety, the record contains no indicia of danger. The officers did not have any reason to believe the Defendants were dangerous or possessed weapons. Officer safety is important. However, some reasonable indication of security concerns, other than unarticulated suspicions, is necessary before a finding of exigent circumstances will justify a violation of a person's Fourth Amendment rights. State v. Naujoks, 467 N.W.2d at 109. . . . Although the officers might legally have arrested the three men outside the home, since they had witnessed the commission of a crime, they were not authorized to enter the home to do so on the facts of this case. State v. Kubit, 627 N.W.2d 914, 919 (Iowa 2001)
Despite these findings, the trial court denied Clark's motion to suppress, stating:
Considering the probable cause evaluation without the evidence discovered from inside the home, the warrant application still contains sufficient detail and substance to authorize the issuance of the warrant. The evidence would have been found during the execution of the warrant, inevitably. State v. Naujoks, 637 N.W.2d at 111-112.
Clark subsequently submitted a written waiver of his right to a jury trial. After personally addressing Clark, the trial court concluded:
THE COURT: All right. The Court then accepts the Defendant's waiver of his right to jury trial and we will proceed to trial on the Minutes of Testimony that are attached to the Trial Information.
The trial court thereafter found Clark guilty of possession of methamphetamine in violation of Iowa Code section 124.401(5). Clark was sentenced in accordance with the trial court's verdict, resulting in this appeal.
On appeal, Clark raises the following issues:
I. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE IN THIS CASE.
II. CLARK'S TRIAL COUNSEL WAS INEFFECTIVE.
II. Standard of Review
We review constitutional claims de novo, independently evaluating the totality of the circumstances. State v. Prior, 617 N.W.2d 260, 263 (Iowa 2000). The adverse ruling on Clark's motion to suppress preserved error for our review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
III. Basis of Clark's Conviction
We initially resolve the confusion resulting from the trial court's preliminary remarks at the sentencing hearing. The court said:
The matter is before the Court for sentencing upon the prior guilty plea to the offense of Possession of a Controlled Substance, in violation of Iowa Code section 124.401(5).
Clark's appellate counsel's concern is that if Clark's conviction is based on a guilty plea, he waived all objections and defenses which were not intrinsic to the plea, including the ruling on his motion to suppress. See Speed v. State, 616 N.W.2d 158, 159 (Iowa 1998). In that event, counsel argues, Clark's trial attorney breached an essential duty by failing to alert the sentencing court to this misconception.
Despite the sentencing court's misstatement, the record clearly demonstrates Clark was convicted following a bench trial on the minutes of testimony. We therefore need not consider Clark's claims to the contrary.
IV. Ineffective Assistance of Trial Counsel
To prevail on his ineffective assistance of counsel claim, Clark has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). "Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). We deem the record adequate to address the issue raised on direct appeal.
Clark argues trial counsel was ineffective for failing to ensure the trial court's compliance with the jury waiver requirements of Iowa Rule of Criminal Procedure 2.17(1) as explained in State v. Stallings, 658 N.W.2d 106, 111-12 (Iowa 2003). The record includes the following colloquy between Clark and the trial judge:
COURT: First of all, do you understand that — first of all, you do have a right to have a jury trial, do you understand that?
CLARK: Yes, ma'am.
COURT: And do you understand that twelve members of the community compose a jury?
CLARK: Yes, ma'am.
COURT: And you and your attorney have the right to participate in jury selection — in picking that jury?
CLARK: Yes, ma'am.
COURT: Do you understand that the verdict has to be unanimous concerning a guilty or not guilty verdict?
CLARK: Yes, I do.
COURT: And if the jury doesn't reach a unanimous verdict, it would be a mis-trial in most circumstances and the case would have to go to trial again?
CLARK: Yes, ma'am.
COURT: Do you understand that if you waive your right to a jury trial, it will be — in this case, in particular, it will be me deciding your guilt or innocence by myself?
CLARK: Yes, ma'am, I do.
COURT: An do you understand — do you think you're going to get some sort of a benefit by waiving your right to jury trial today?
CLARK: No.
COURT: Okay, and do you think you're going to be rewarded either by the Court or by the prosecution for waiving your right to a jury trial?
CLARK: No, ma'am.
Because we find the court's inquiry sufficient, counsel breached no essential duty by failing to request further inquiry by the court. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (determining counsel is not ineffective for failing to raise a meritless issue). We affirm on this issue.
V. Search and Seizure
Clark argues the search warrant resulting in the seizure of the disputed evidence was not supported by enough legally obtained evidence to establish the probable cause requisite to its issuance. We disagree.
The Fourth Amendment to the United States Constitution, and Article I, section 8 of the Iowa Constitution, secure the right of people to be free from unreasonable searches and seizures. The court has developed a two-step approach that is utilized to assess whether Fourth Amendment violations have occurred. Breuer, 577 N.W.2d at 45. The first step requires us to determine whether the person challenging the search and seizure has a legitimate expectation of privacy in the premises searched. Id. The second step requires us to determine whether the State has "unreasonably invaded that protected interest." Id.
A. Expectation of Privacy
The right afforded by the Fourth Amendment is specific to the individual and may not be invoked by third persons. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473, 142 L.Ed.2d 373, 379 (1998). An individual challenging the search must demonstrate a legitimate expectation of privacy in the particular area searched. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). A person's home is covered by the protections of the Fourth Amendment. See U.S. Const. amend. IV. The record shows the evidence was obtained through entry into Clark's home. Therefore, Clark has established a protected interest.
B. Reasonableness of Search
Searches and seizures are unconstitutional if they are unreasonable and reasonableness depends on the facts of the particular case. Naujoks, 637 N.W.2d at 107. Warrantless searches are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Roth, 305 N.W.2d 501, 504 (Iowa 1981). Valid exceptions to the warrant requirement include those for searches (1) consented to, (2) based on probable cause and exigent circumstances, (3) involving items in plain view, or (4) incident to a lawful arrest. Naujoks, 637 N.W.2d at 107. The State has the burden of proving by a preponderance of the evidence that a warrantless search falls within one of the exceptions to the warrant requirement. Id. at 107-08.
"It is axiomatic that search warrants are to issue only upon a finding of `probable cause.'" State v. Green, 540 N.W.2d 649, 655 (Iowa 1995) (citation omitted). In determining whether probable cause has been established for the issuance of a search warrant, the test is whether a person of reasonable prudence would believe a crime had been committed on the premises to be searched or evidence of a crime could be located there. State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003). The information presented in the application for the search is far less demanding than the information necessary to sustain a conviction. State v. Wells, 629 N.W.2d 346, 355 (Iowa 2001). The affidavit for probable cause is interpreted with common sense, rather than in a hypertechnical manner. State v. Gogg, 561 N.W.2d 360, 363-64 (Iowa 1997). We draw all reasonable inferences to support the judge's finding of probable cause. Id. at 364. Close cases are decided in favor of upholding the validity of the warrant. Id. Evidence or information obtained illegally cannot support the probable cause necessary to uphold the validity of a warrant. Naujoks, 637 N.W.2d at 111. "When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue." Id. at 113 (citation omitted). If the lawfully obtained information alone would have justified the issuance of the warrant, the evidence seized is admissible. Id. We therefore must determine whether there was a sufficient amount of legally obtained evidence to support the probable cause for the warrant to search Clark's home.
Clark's suppression theory, as we understand it, is that the assertions made in the search warrant application and affidavit were entirely based on two illegal, warrantless entries into Clark's residence and resulting observations made by Simms and Fear. As noted earlier, the trial court agreed, but nevertheless concluded the same evidence would have been inevitably discovered during the execution of the validly issued search warrant.
Like the trial court, we find within the content of the search warrant application and supporting affidavit sufficient probable cause for its issuance. The supporting facts include Simms' observations made upon his initial invited entry into Clark's residence. See State v. Reinier, 628 N.W.2d 460, 464-65 (Iowa 2001) (discussing the warrantless entry exception of consent). Moreover, both Simms and Fear observed from Clark's driveway through an open window Clark and others using methamphetamine. See State v. Lewis, 675 N.W.2d 516, 523 (Iowa 2004) (holding driveway not within curtilage protected by the Fourth Amendment); see also State v. Dickerson, 313 N.W.2d 526, 531 (Iowa 1981) (stating that officers do not wear blindfolds when in a common entrance or similar passageway in front of a house). We believe these observations of criminal activity provide the requisite probable cause for issuance of a search warrant.
We accordingly affirm the trial court ruling denying Clark's motion to suppress. We have carefully considered the remaining arguments of the parties and find their resolution is controlled by the foregoing or they are without merit.