Opinion
No. 3-022 / 02-0424.
Filed March 12, 2003.
Appeal from the Iowa District Court for Winneshiek County, MARGARET LINGREEN, JOSEPH C. KEEFE, and JAMES C. BAUCH, Judges.
Defendant appeals from district court's denial of her suppression request, which challenged the existence of probable cause to support a search warrant. AFFIRMED.
Eric Borseth of Borseth Genest Law Offices, Altoona, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Andrew Vandermaaten, County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Ida Heins appeals from her conviction and sentence for theft in the third degree, in violation of Iowa Code sections 714.1 and 714.2(3) (2001). She contends the district court erred in denying her request to suppress items seized during a search of her home, which was conducted pursuant to a warrant. We affirm.
Background Facts and Proceedings .
On May 8, 2001, employees of the Decorah Wal-Mart detained Ida Heins and her daughter, Patricia, after they were observed placing videotapes in their bags and leaving the store without paying for the items. When Officer Warren Leeps arrived at the store, he learned that Heins and her daughter were also suspected of stealing other merchandise from the store on prior occasions. Officer Leeps viewed security tapes recorded April 29 and May 7, 2001. The tapes showed Heins and her daughter taking handfuls of tools from store shelves, walking around the corner and out of camera range, and retuning empty-handed. The tapes also showed Heins and Patricia carrying large bags. Officer Leeps was informed the store had suffered heavy losses in its tool department between April 25 and May 7. Store employees provided the officer with printouts for that time frame which revealed unexplained losses from the store's inventory of tools.
Officer Leeps also spoke with John Mulder, a Wal-Mart district manager. Mulder stated the stores in his area had been experiencing high levels of theft. Mulder further stated he had visited a flea market in October 2000, and witnessed an older man selling videotapes in what appeared to be new packaging. Mulder observed at least two women in the same area as the man, one of whom fit the physical description of Patricia Heins. Mulder had obtained the license number of the man's pick-up truck, and police determined the vehicle was registered to Florence Mueller, Ida Heins's mother. Mueller resided at 15453 Dove Avenue, Luana, Iowa, the same address listed on Ida Heins's driver's license. Patricia Heins's driver's license listed her address as 15455 Dove Avenue, Luana, Iowa.
Based on an affidavit prepared by Officer Leeps, police obtained a warrant to search for tools, videotapes and related items at "[t]he residence and garage located at 15453 (Ida Heins) and 15455 (Patricia Heins) Dove Ave., Luana, Iowa." The description of the area to be searched included a two-story residence, unattached garage, four outbuildings and a white mobile home. It appears that 15453 Dove Avenue was the street address for the two-story residence and garage, while 15455 Dove Avenue was the street address for the mobile home.
When executing the warrant at the two-story residence, police were informed both Heins and her daughter occupied the mobile home. In searching the mobile home police located various items named in the warrant, along with a number of unnamed items they also believed to be stolen. A second warrant was obtained and executed.
Heins was charged with theft in the second degree. She moved to suppress the items seized from her residence, arguing the application for the initial search warrant contained a number of intentional and material misrepresentations and omissions, and sought a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). She also claimed there were a number of procedural deficiencies in the initial application for the warrant. Her motion for a Franks hearing was denied, as was her suppression request. Heins then stipulated to a trial on the minutes, on the condition that any conviction would be limited to theft in the third degree. She was convicted of theft in the third degree, and now appeals. She claims the district court erred in denying her a Franks hearing and admitting evidence seized pursuant to the warrants.
Scope of Review .
Although we conduct a de novo review of Heins's constitutional challenges, the issuing judge's probable cause finding is entitled to great deference. In re Inspection of Titan Tire, 637 N.W.2d 115, 125 (Iowa 2001) (citation omitted). In assessing the validity of that finding, we look only to the written information presented at the time the warrant application was made. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). Because we prefer the use of warrants, we resolve doubts in favor of the warrant's validity. State v. Gathercole, 553 N.W.2d 569, 574 (Iowa 1996).
Franks Hearing .
Heins first contends the district court erred in denying her motion for a Franks hearing. If a defendant can make a "substantial preliminary showing" that the affidavit supporting the warrant application contained deliberate falsehoods or statements made in reckless disregard for the truth, and if such statements were necessary to the probable cause determination, the district court must grant a hearing. Franks, 438 U.S. at 164-65, 98 S.Ct. at 2681, 57 L.Ed.2d at 678. If the falsity of the statements is then established, they are excised from the warrant before probable cause is assessed. State v. Green, 540 N.W.2d 649, 656 (Iowa 1995). This rule also applies to any omissions that "cast doubt on the existence of probable cause." Id. at 657. Heins argues she made a sufficient preliminary showing for a hearing. In support of her argument she cites four areas of the affidavit Officer Leeps presented to the court when he applied for the first search warrant.
Heins first points to the statement that Wal-Mart personnel had informed Officer Leeps Heins and her daughter were suspected of shoplifting at other Wal-Mart stores. This statement is technically inaccurate. Officer Leeps was actually informed other stores had experienced heavy losses in the same types of items Heins and Patricia were suspected of or witnessed taking from the Decorah store, and that a Decorah employee "suspected, with the video loss [at the Prairie Du Chien store], that there could be some involvement there." We conclude any inaccuracy in this statement is more negligent inference than deliberate falsehood or reckless disregard for the truth.
Next, Heins finds fault with Officer Leeps's failure to attach a "list of stolen goods" to the warrant application, as stated in his affidavit. Again, the evidence indicates this was an inadvertent, rather than deliberate omission. Negligence or innocent mistake are insufficient to impeach a warrant. Id. at 656.
Although Heins attacks the characterization of the missing attachment, arguing it was only a "shrinkage" report, it is clear from the face of the affidavit that Officer Leeps was describing the inventory discrepancy printouts.
Heins also assails Officer Leeps's statement that his training and experience gave rise to a belief stolen property would be kept in Heins's home or vehicles until it could be sold. She supports her claim that this statement constitutes a deliberate or reckless falsehood by a narrow and specific attack on Officer Leeps's prior experience, and the officer's own deposition testimony that he had a "gut feeling" Heins and her daughter made a regular practice of shoplifting and selling items at flea markets. However, "the probable cause requirement does not deprive law enforcement officers of the use of reasonable, common sense inferences. . . ." Id. at 655. One such reasonable inference is that stolen property will be located at a suspect's residence. Gathercole, 553 N.W.2d at 574.
Heins notes police searched the vehicle she was driving that day before they applied for the warrant, and the search of that vehicle yielded no evidence of stolen property. She argues Officer Leeps therefore made material and deliberate misrepresentations when he stated his belief stolen property could be found in her vehicles, and omitted that the search of her vehicle in the Wal-Mart parking lot yielding nothing incriminating. This argument ignores the fact the warrant application sought to search up to four vehicles registered to Mueller and/or Patricia at the Dove Avenue residence, not merely the one being driven by Heins on that day.
Heins's final complaint is the affidavit statement that "John Mulder, saw Ms. Heins at this flea market in October selling videotapes that were in the original packaging." (emphasis added). While this was a misstatement of the information Officer Leeps had been provided, it was not an unreasonable inference to be drawn from that information. Mulder did observe a woman matching Patricia's description with the man selling the videotapes, and Officer Leeps also recalled Mulder stating he had observed a second woman matching Heins's physical description. Under the circumstances, Heins has not shown Officer Leeps's statement was deliberately false or made with reckless disregard for the truth. Moreover, even if Heins had made such a showing, and the identification was excised from the warrant application, probable cause could still have been found.
Adequate Nexus .
Heins claims the record fails to reveal a nexus between the criminal activity and her home. The warrant application must have established a nexus between the criminal activity, the items to be seized, and the location to be searched. State v. Randle, 555 N.W.2d 666, 670 (Iowa 1996). The nexus is found by considering "the nature of the alleged crime and items to be seized, the defendant's opportunity to conceal the items, and any inferences as to where the items may be concealed." State v. Thomas, 540 N.W.2d 658, 663 (Iowa 1995). When determining if a warrant application is supported by probable cause, the judge need only make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Randle, 555 N.W.2d at 670 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983)).
Here, Heins and her daughter were caught stealing videotapes. John Mulder observed the sale of videotapes that appeared to be in their original packaging. They were being sold from a pickup truck registered to Heins's mother, who shared the address listed on Heins's driver's license. The combination of the surveillance tapes, and the asserted loss of inventory, supported a reasonable belief Heins and her daughter had also taken tools from the Decorah store. It was reasonable to infer the stolen property would be located at Heins's residence. Gathercole, 553 N.W.2d at 574. Assuming the application established a sufficient residential or other connection between Heins and the area to be searched, the application contained a substantial basis for the issuing court's probable cause finding.
Although Heins complains Officer Leeps should have included the fact Mulder witnessed a man selling the tapes, the affidavit need not contain all exculpatory evidence. State v. Ripperger, 514 N.W.2d 740, 745 (Iowa Ct.App. 1994). Rather, police are "required only to provide that evidence which would cause a person of reasonable prudence to believe that evidence of a crime was being concealed on the premises to be searched." Id. at 745-46.
Heins argues there was not a sufficient connection, because the address information on her driver's license was stale, and even if the license information was properly considered, nothing in the warrant application indicated she lived in the mobile home where the items were found. Although the district court made a general finding as to the adequacy of the warrant application, it never ruled on these specific issues, nor did Heins request the court make more specific rulings. Generally, such claims are not preserved for our review. State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). Even if we were to find the district court's general ruling sufficient to preserve the issue, Heins's arguments are without merit.
Heins's staleness argument hinges on the fact her driver's license was issued two and one-half years before her arrest, and there was no independent corroboration she still lived at that address. As the Sate points out, Heins had an affirmative obligation to maintain a driver's license with accurate information. Iowa Code § 321.189(3). This would include her residential address. Id. at § 321.189(2)(a). Officer Leeps was entitled to make the reasonable inference that Heins's current address was accurately reflected on her license. Green, 540 N.W.2d at 655.
Although the warrant application did not specifically list the mobile home as Heins's residence, the application need not indicate a suspect has actively occupied all listed structures. All that is required is a sufficient nexus between Heins's criminal activities and the area to be searched. Randle, 555 N.W.2d at 671. Here, 15453 and 15455 Dove Avenue were presented as jointly comprising a single area, with one traditional residence, a garage, multiple outbuildings, and a mobile home. Under such facts, it was reasonable to assume Heins had access to the various buildings, including the mobile home. Moreover, to the extent 15455 Dove Avenue represented a separate street address for the mobile home, it was validly presented as the residence of a fellow suspect.
We conclude the issuing judge had a substantial basis on which to find probable cause for the issuance of the first warrant. As Heins's challenge to the second warrant stems from her challenge to the first, we uphold the district court's denial of Heins's suppression request. Her conviction and sentences must be affirmed.