Opinion
No. 3-747 / 03-0031
Filed November 17, 2003
Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.
The State seeks discretionary review of the district court's order suppressing certain statements and other evidence. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Gary Allison, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellant.
Jeffrey Johnson, Muscatine, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
A policeofficer seized marijuana from Marc Erickson's property without a warrant. The State subsequently charged Erickson with manufacturing and possessing marijuana. See Iowa Code §§ 124.401(1)(d), (5) (2001). Erickson moved to suppress the evidence, contending it was obtained in violation of constitutional prohibitions against unreasonable searches and seizures. See U.S. Const. amend. IV, Iowa Const. art. I, § 8. The district court granted the motion and the State sought discretionary review. We reverse and remand.
I. Background Facts and Proceedings
A Muscatine police officer was dispatched to investigate a tip concerning marijuana in a truck. The officer determined the address of the vehicle owner, went to his home, and saw the truck parked on the homeowner's property adjacent to an alley behind the house. A tarpaulin covered the truck bed and a "no trespass" sign was visible on the garage next to the truck.
The officer was familiar with the home and its occupants, having recently investigated a burglary there. He approached the house and was greeted outside by one of the occupants, Larissa Andreas. The officer asked whether there was anything in the truck's flat bed that might have been overlooked in the burglary. Andreas responded, "no, you can look." The officer lifted the tarpaulin and saw small particles of what he believed to be marijuana. Andreas said she and her boyfriend had been clearing weeds at a farm.
At this point, Erickson came out of the house. The officer commented that there appeared to be marijuana in the truck and asked Erickson what he had recently hauled. Like Andreas, Erickson responded that he had hauled brush. The officer mentioned that he could get a drug-sniffing dog to examine the truck. Erickson became nervous and a few seconds later stated, "I'm not going to lie to you, I want to be truthful, I have some in the garage." Erickson permitted the officer to follow him into the garage. He retrieved and turned over three dozen mature marijuana plants. Later, he waived his Miranda rights and signed a confession.
See Miranda v. Arizona, 384 U.S. 436, 473-76, 86 S.Ct. 1602, 1627-29, 16 L.Ed.2d 694, 723-25 (1966) (requiring police to tell persons subject to custodial interrogation the following: (1) they have the right to remain silent; (2) anything they say can be used against them in a court of law; (3) they have the right to the presence of an attorney; and (4) if they cannot afford an attorney, one will be appointed prior to questioning, if they desire).
The State argues the district court's suppression ruling should be reversed on the following grounds: 1) the officer made a permissible entry onto Erickson's property, 2) Erickson's girlfriend consented to the search of the truck, and 3) Erickson's consent to a search of the garage was voluntary. Our review of these constitutional issues is de novo. State v. Brown, 612 N.W.2d 104, 108 (Iowa Ct.App. 2000).
The State also raises a fourth argument based on the independent source doctrine, which we need not address.
II. Entry onto Premises
The district court found that the police officer entered Erickson's property without a warrant, notwithstanding a visible "no trespass" sign posted on the garage. The State takes issue with this finding, arguing the trespass was "of no particular consequence."
The United States Supreme Court has stated that "an actual trespass is neither necessary nor sufficient to establish a constitutional violation." U.S. v. Karo, 468 U.S. 708, 712-13, 104 S.Ct. 3296, 3302, 82 L.Ed.2d 530, 539-40 (1984). The key question is whether the government intrusion infringes on a reasonable expectation of privacy. See Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214, 222 (1984). A "no trespass" sign may or may not be relevant to that inquiry. Id., 466 U.S. at 179, 104 S.Ct. at 1741, 80 L. Ed.2d at 224 (noting "no trespassing" signs do not effectively bar public from viewing open fields).
A photograph of the property reveals that the "no trespass" sign was posted on the garage adjacent to the driveway on which the truck was parked. The driveway led into the back alley. Although a fence surrounded most of the property, it did not extend across the driveway. The truck and remainder of the back yard was visible and accessible from the alley. Under these circumstances, we conclude Erickson did not have a legitimate expectation of privacy in the portion of the property traversed by the police officer. See State v. Legg, 633 N.W.2d 763, 768 (Iowa 2001) (stating "[t]he primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.") (citation omitted). Therefore, the police officer's entry onto the property via the back alley did not violate the Fourth Amendment.
III. Andreas' Consent to Search of Truck
A valid consensual search is an exception to the Fourth Amendment's warrant requirement. State v. Reinier, 628 N.W.2d 460, 464-65 (Iowa 2001). The validity of the consent depends in part on whether the person granting consent had actual or apparent authority to do so. See Illinois v. Rodriquez, 497 U.S. 177, 186-87, 110 S.Ct. 2793, 2799-2801, 111 L.Ed.2d 148, 159-60 (1990) (upholding a search based on reasonable but erroneous belief that person consenting to the search had authority to do so); State v. Grant, 614 N.W.2d 848, 854 (Iowa Ct.App. 2000). The State argues Andreas had apparent if not actual authority to consent to the search of the truck. We agree.
Shortly before this search, the police officer investigated a burglary at the home. During the investigation, he learned that Andreas owned the home and lived there with her boyfriend, Erickson. Although the officer also knew that Erickson was the only owner of the truck, he reasonably could have surmised that Andreas had authority to consent to a search of the vehicle, based on her intimate relationship with him and their cohabitation. We conclude that Andreas' consent to search the vehicle was valid and the truck search was constitutional.
IV. Erickson's Consent to Search of Garage
"Consent is considered to be voluntary when it is given without duress or coercion, either express or implied." Reinier, 628 N.W.2d at 465. The district court concluded that the police officer's mention of his ability to obtain a drug-sniffing dog rendered Erickson's subsequent consent to enter the garage involuntary. We disagree. The police officer made the dog-sniff statement only after receiving a tip that the truck might contain marijuana and after corroborating the tip via a valid consensual search of the truck. Under these circumstances, his statement concerning a drug dog was "not improper or in any way inaccurate." State v. Holland, 389 N.W.2d 375, 381 (Iowa 1986), cf. State v. Bergmann, 633 N.W.2d 328, 334 (Iowa 2001) (stating a dog sniff outside a vehicle is not search within meaning of Fourth Amendment).
V. Disposition
We reverse the district court's ruling on Erickson's motion to suppress and remand for further proceedings.
REVERSED AND REMANDED.