Opinion
No. 5-051 / 04-0545
Filed February 9, 2005
Appeal from the Iowa District Court for Dubuque County, John Bauercamper, Judge.
The defendant appeals from his conviction of possession of a controlled substance. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Fred McCaw, County Attorney, and Timothy Gallagher, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
Benjamin Gerhard appeals from his conviction of possession of a controlled substance. He contends the district court erred in denying his motion to suppress. In the alternative, he contends his counsel rendered ineffective assistance. We review his claim de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
Officer Andrew Hardin observed Gerhard and Eric Hanson walking beside a street in Dubuque at approximately 11:30 p.m. on August 23, 2003. Officer Hardin asked the men to identify themselves and discovered Hanson had an outstanding warrant for his arrest. Hanson was arrested and placed in the patrol vehicle. Meanwhile, Officer Hardin asked Gerhard to wait nearby.
Soon, Officer Scott Koch arrived on the scene. Officer Koch had a picture of Gerhard in his patrol car as a suspect in numerous burglaries in the area. Officer Koch asked Gerhard if he had any weapons. Gerhard stated he did not. Officer Koch then informed Gerhard he was going to pat him down for weapons and asked Gerhard to put his hands behind his back. Officer Koch asked Gerhard if he had any drugs in his possession, and Gerhard responded that he had marijuana in his right front pants pocket. Officer Koch retrieved a plastic bag containing marijuana and a pipe from Gerhard's pocket. Gerhard was then placed under arrest.
On November 7, 2003, Gerhard's counsel filed a motion to suppress. Although the motion was not timely, the State did not object and a hearing was held on the merits. The trial court denied the motion to suppress. Trial was held on the minutes of testimony on February 18, 2004, and the court found Gerhard guilty of possession of marijuana.
We first conclude Gerhard's counsel was not ineffective in failing to file a timely motion to suppress. The trial court considered the merits of the motion and denied it.
We then must decide whether the court erred in denying the motion to suppress because the discovery of the marijuana was a product of an illegal search or seizure. Searches and seizures conducted without a warrant are per se unreasonable unless they fall within one of the exceptions to the Fourth Amendment's warrant requirement. State v. Legg, 633 N.W.2d 763, 767 (Iowa 2001). The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. Id.
Gerhard first contends he was unreasonably seized when Officer Hardin checked his name with dispatch to see if he had any outstanding arrest warrants. Our supreme court has determined the Fourth Amendment is not violated when a person is asked by a police officer for identification and checked for outstanding warrants. State v. Smith, 683 N.W.2d 542, 544 (Iowa 2004).
We likewise do not consider Officer Hardin's request for Gerhard to wait nearby while Hanson was being placed in the squad car a seizure. Encounters with law enforcement remain consensual so long as a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter. Id. at 547. Officer Hardin testified Gerhard was not restrained and was free to leave.
As Officer Hardin was asking Gerhard to wait, Officer Koch arrived on the scene. Officer Koch recognized Gerhard as a suspect in numerous burglaries in the area. He also believed Gerhard had previously been convicted of criminal activity. Suspecting Gerhard may have possessed a weapon on his person, Officer Koch intended to initiate a Terry search. Although Gerhard had stated he did not possess weapons when asked, Officer Koch was not required to accept Gerhard's word. Gerhard put his hands behind his neck and before Officer Koch conducted the Terry search he asked Gerhard if he had any drugs on his person. Gerhard then confessed to the presence of marijuana in his pants pocket.
We must determine whether Gerhard's admission he possessed marijuana was a product of a free and unconstrained choice. State v. Alspach, 524 N.W.2d 665, 667 (Iowa 1994). A statement will be considered free and voluntary if it is free from any sort of threat and is not obtained by any direct or implied promise. Id. No threats or promises were present here. We conclude Gerhard's statement was voluntary. Therefore, the district court properly denied Gerhard's motion to suppress.