Opinion
No. 4-180 / 02-0923.
June 23, 2004.
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble and George W. Bergeson, Judges.
Christoper Greteman appeals from his convictions for two counts of possession of a controlled substance, failure to possess a tax stamp, and unauthorized possession of a prescription drug. REVERSED AND REMANDED.
Ryan Genest of Culp, Doran, Seidlin Genest, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Robert DiBlasi, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., Eisenhauer, J., and Harris, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
We reverse defendant's convictions on four drug charges: possession of a controlled substance (marijuana) with intent to deliver in violation of Iowa Code section 124.401(1)(d) (2001); possession of a controlled substance (crack cocaine) with intent to deliver in violation of section 124.401(1)(c)(3); failure to possess a tax stamp in violation of sections 453B.3 and 453.12; and unauthorized possession of a prescription drug in violation of section 155A.23. On appeal the defendant challenges a pretrial ruling denying his Fourth Amendment challenge to suppress evidence. Cases explaining the Fourth Amendment protection against unreasonable searches abound. See State v. Reinier, 628 N.W.2d 460, 464-66 (Iowa 2001).
After our de novo review of the record we find ourselves unable to improve on the statement of facts by the trial court. We quote and adopt that language as our own.
On October 17, 2001, . . . the manager of the Hamlet Apartments . . . in West Des Moines, Iowa, called police. . . . Des Moines Police Officers Hartshorn and Bryan responded to the call. Upon investigation, the officers detected the smell of marijuana coming from apartment 26.
Officer Hartshorn placed his thumb over the peephole of the door to conceal the fact that uniformed police officers were present. Officer Hartshorn knocked on the door but did not announce he was a peace officer. Andrew Sullivan answered the knock, opened the door six to eight inches wide and peered around the door. The door opens in to the apartment. Sullivan made a furtive movement with his hands toward his pockets. Officer Hartshorn ordered Sullivan to show his hands for the safety of the officers. Officer Hartshorn asked Sullivan to step into the hall. Officer Bryan patted Sullivan down to make sure he did not have any weapons. Sullivan lied in response to questions by the officer. Sullivan told the officers his name was Anthony, that he was seventeen years old, and there was only one other person in the apartment. Sullivan also correctly told the officers he was an overnight guest of a tenant named Chris who was asleep in the back bedroom. At some point during this event Officer Hartshorn blocked the door of the apartment open with his left foot.
Sullivan asked the officers if they wanted him to go into the apartment to get Chris. Officer Hartshorn asked Sullivan if they could enter the apartment while he went to get Chris. Sullivan responded "yes." Officer Hartshorn followed Sullivan to the back bedroom as he went to get Chris. Sullivan did not object to this. Officer Bryan stepped six feet into the apartment where he observed marijuana and drug paraphernalia in plain view.
Christopher Greteman and his girlfriend . . . came out of the back bedroom. Officer Hartshorn knocked on the door of the front bedroom, opened the door and found Brian Fasvender. Officer Hartshorn escorted all of the subjects to the living room. The officers placed the suspects under arrest for possession of marijuana. The officers did not interrogate the suspects or search the apartment at that time. Officer Bryan did an inventory of the contraband in plain view. Sullivan and Fasvender were transported to the police station. Officer Hartshorn asked Christopher Greteman whether he would consent to a search of the apartment. Greteman declined at that time. Officer Hartshorn and Bryan summoned Detective Logsdon of the narcotics unit to the apartment. Greteman asked Detective Logsdon if he could talk with him in the back bedroom. Logsdon gave Greteman a Miranda warning. Greteman waived his Miranda rights and consented to the search of the apartment. Greteman showed Logsdon some crack cocaine in a cup in the closet of the back bedroom. Greteman claimed Sullivan brought the crack cocaine to the apartment.
There are flaws in the State's contention that the search was justified because defendant consented to it following a legitimate "knock and talk" entry. See Reiner, 628 N.W.2d at 466. Under the facts here (including the officer's blocking of the door with his foot) it would be a stretch to say Sullivan's consent to the officer's entry was voluntary. That is a matter we however need not decide. Consent to enter fails because Sullivan lacked authority to grant it.
The State points to the rule that third parties who have been accorded joint occupancy can grant authority to enter. But a "consent search of a home is only proper if the police reasonably believed the person granting the police permission to search had the authority to do so." State v. Grant, 614 N.W.2d 848, 853 (Iowa Ct.App. 2000) (citing Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 159-60 (1990)). The officers here knew before entering that Sullivan was not an apartment tenant, and was only a casual overnight guest. The officers could not reasonably have thought he had authority to invite them to enter.
The State's strongest argument in justification is defendant's own consent, extended to Detective Logsdon which State argues purged the taint of the unlawful entry. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). The facts here are similar to those in Reiner, which stands for the rule that the State cannot rely on a consent obtained following an illegal entry unless there has been a break in the illegal action. The first two remained in the apartment after entering it. Their presence there continued; there was no break in the chain of events. The motion to suppress should have been sustained.
Defendant's other assignments, objections to evidentiary ruling, become moot.
REVERSED AND REMANDED.
Eisenhauer, J., concurs; Sackett, S.J., dissents.
I would affirm.