Opinion
No. 5-962 / 05-0519
Filed March 29, 2006
Appeal from the Iowa District Court for Hancock County, John S. Mackey, Judge.
The State appeals from the suppression of relevant evidence. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and Karen R. Kaufman Salic, County Attorney, for appellant.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
The State appeals from the suppression of relevant evidence. We reverse and remand for further proceedings consistent with this opinion.
I. Background Facts and Proceedings.
Carol Ann and Steven Glen Hugo had been under surveillance by the Hancock County Sheriff's department for over a year on suspicion of manufacturing methamphetamine. Over the course of the surveillance, officers had learned that together, Carol Ann and Steven had purchased more than 2,000 pseudoephedrine pills at a variety of pharmacies. The purchases followed a general pattern whereby either Carol or Steven would purchase from 100 to 200 of the pills at one time. On several occasions, one of them would enter a store and buy a quantity of the pills after the other had made a similar purchase and had exited. On some occasions the couple would travel to a different pharmacy on the same day and repeat the process. The Hugos' residence in Woden was also under surveillance, where officers' described "a lot of nighttime activity."
Deputy Penning testified that on several occasions, Steven or Carol Ann would exit via a back or side entrance, which he opined was calculated to avoid detection. It should also be noted that except for the multiple purchases made on June 3, 2004, which netted 400 pills, the Hugos never purchased more than 296 pills in a single day throughout the sixteen-month observation.
On July 19, 2004, an employee at Tammy's Pharmacy contacted the sheriff's office to report that Steven and Carol had entered the store. Deputy Raymond Penning, Jr., testified that he arrived at the pharmacy shortly after the report was received and observed Carol nervously alternate her attention between him and the store clerk. After Penning left Tammy's, Steven purchased 200 pseudoephedrine pills. Penning then observed Steven and Carol travel by automobile to Bill's Family Foods, a nearby grocery. Penning placed a telephone call to that store's main cashier, who confirmed that Carol had entered the building and purchased ninety-six pseudoephedrine pills.
Deputy Penning testified that he believed he had enough information to justify stopping Hugos' vehicle, and he did. When Carol, the driver, asked Penning why she had been stopped, Penning informed Carol and Steven that he had information that "they had been purchasing a lot of precursors around the Garner area lately." When Carol indicated she didn't understand what "precursors" were, Penning told her he was referring to "Sudafed." Although Carol admitted she and Steven had purchased Sudafed, she opined that it was legal to possess less than 300 pills.
Deputy Penning was aware at the time he made the investigatory stop that Carol had been involved in two prior assaults on law enforcement officers. He therefore requested Carol and Steven to exit the vehicle and obtained consent of both Carol and Steven to perform a weapons pat-down of their persons. Penning then requested but was refused permission to perform a protective sweep of the vehicle for weapons. He testified that, at the time of this request, he also believed he possessed probable cause to search the vehicle for narcotics evidence based on (1) the couple's extensive history of pseudoephedrine purchases, (2) the couple's purchases of a precursor that day, (3) Carol's defensive response to his query about the couple's possession of a precursor, and (4) Carol's previous nervous demeanor displayed at Tammy's.
Upon searching the passenger compartment of the vehicle, Penning discovered the 200 pills purchased at Tammy's and a receipt from Bill's Family Foods indicating a recent purchase of a 96-count bottle of psuedoephederine pills. A search of Tammy's purse, which remained in the passenger compartment, revealed two baggies with a white powder residue and several "snort tubes" used to smoke methamphetamine. Another such tube was found under the purse along with burned pieces of tin foil commonly associated with the ingestion of methamphetamine.
Penning did not recover the 96-count bottle from either the vehicle or the Hugos themselves.
As a consequence of the contraband found during the search of the vehicle and the purse, Carol and Steven were arrested. Officers then sought and obtained a search warrant for the Hugos' residence in Woden. While the search of the residence did not reveal a clandestine methamphetamine laboratory, officers did discover a hidden marijuana growing operation in the basement. Carol and Steven were subsequently charged with (1) possession with intent to deliver marijuana, (2) manufacturing marijuana, (3) a drug tax stamp violation, (4) possession of precursor pseudoephedrine, and (5) possession of marijuana.
Both Carol and Steven filed motions to suppress the fruits of the warrantless search of their vehicle, including the evidence obtained following the subsequent search of their residence. The motions challenged the reasonableness of the suspicion supporting the initial investigatory stop of the vehicle, and claimed the subsequent warrantless search of the passenger compartment was not sustained by probable cause.
Following hearing on the motions, the district court ruled that while the initial investigatory stop of the vehicle was supported by reasonable suspicion, the subsequent search of the vehicle was not supported by either (1) probable cause to believe the vehicle possessed evidence of crime, or (2) a reasonable belief that the suspects were dangerous and might gain access to a weapon concealed in the passenger compartment. Finding the vehicle search violated the Hugos' constitutional rights, the district court suppressed the evidence seized pursuant to the vehicle search, quashed the warrant obtained for the residence, and suppressed all evidence seized from the residence.
The State sought and obtained discretionary review of the district court's suppression ruling, alleging that based on the facts known to Deputy Penning at the time he stopped the vehicle, the search of the vehicle constituted a proper weapons sweep or, in the alternative, was supported by probable cause and exigent circumstances.
II. Scope and Standard of Review.
We review constitutional issues de novo. State v. Biddle, 652 N.W.2d 191, 200 (Iowa 2002). Any evidence obtained in violation of a defendant's Fourth Amendment right against unreasonable search and seizure is inadmissible, and should be suppressed regardless of its relevance and probative value. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); State v. Jones, 666 N.W.2d 142, 145 (Iowa 2003).
III. Discussion.
A warrantless search of a vehicle following a reasonable investigatory stop does not violate the Fourth Amendment where the detaining officer has probable cause to believe the vehicle contains evidence of a crime. State v. Maddox, 670 N.W.2d 168, 171 (Iowa 2003). Owing to its inherent mobility, the vehicle itself creates an exigent circumstance that excuses the warrant requirement if probable cause is shown to exist. Id. In evaluating whether Deputy Penning possessed probable cause to search the Hugos' vehicle, we make an independent evaluation of the totality of circumstances known to Penning at the time he conducted the search. State v. Bradford, 620 N.W.2d 503, 508 (Iowa 2000). "Seemingly innocent activities may combine with other factors to give an experienced police officer reasonable grounds to suspect wrongdoing." Id.
Iowa Code section 124.401(4)(b) (2003) criminalizes the possession of pseudoephedrine where the person in possession intends to dedicate the product to the manufacture of methamphetamine. We must therefore decide whether Deputy Penning had sufficient facts available from which to conclude not only that the vehicle contained pseudoephedrine, but that the Hugos possessed the medication with the requisite criminal intent.
From our review of the record, we believe the following information was available to Deputy Penning at the time he conducted the search of the vehicle: (1) the Hugos had purchased over 2,000 pseudoephedrine pills in the past sixteen months, (2) the Hugos purchased 296 pseudoephedrine pills on the day of the arrest at two different locations, (3) Carol acted nervously when she noticed Penning arrive at Tammy's Pharmacy, and (4) while admitting to purchasing pills, Carol was overtly defensive when she communicated to Penning her belief that possession of fewer than 300 pills was legal. Based on Penning's training as a law enforcement officer, he also believed that the manner in which the Hugos alternated purchasers and pharmacies was designed to minimize their individual purchases and thus avoid detection by law enforcement. Penning had also noted that the Hugos would depart the pharmacies through a side or rear exit when possible, and he believed this routine was intended to diminish the visibility of their actions.
When these pieces of information are taken together in view of Deputy Penning's law enforcement expertise, we believe the search of the vehicle was supported by probable cause to believe the Hugos intended to dedicate the pseudoephedrine in their possession to the manufacture of methamphetamine. See Iowa Code § 124.401(4)(b); see also State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003). Our conclusion is strongly influenced by comparison of the facts of this case with those before the court in Maddox, where our supreme court similarly ruled that the warrantless search of a truck on suspicion of illegal precursor possession was justified by probable cause. Maddox, 670 N.W.2d at 174.
The officers in Maddox initially detained two men in the parking lot of a Wal-Mart after store employees reported the men's purchase of "a six-pack of starter fluid, flexible plastic tubing, and a plastic or glass jar." Id. at 170. The court stated that the particular combination of purchases, when taken together provided "good reason to believe they would be used to make methamphetamine." Id. at 172. Interestingly, the court explained that the inference of an illicit intent derived from the items purchased in Maddox was "just as strong as if the defendants had purchased several boxes of over-the-counter medication containing pseudoephedrine." Id. By comparison, we note that not only was Deputy Penning cognizant of the Hugos' suspicious purchases of pseudoephedrine on the day of the search, he also knew of the defendants' regular pattern of similar purchases that were inconsistent with personal use of pseudoephedrine. As such, the inference of criminal intent derived from the items purchased and possessed by the defendants in this case is even stronger than in Maddox.
The State's brief notes that the maximum dosage of pseudoephedrine is eight tablets per day for no more than seven days. As such, we conclude it was entirely reasonable for Penning to believe that the amounts purchased by the Hugos over the course of the sixteen months were inconsistent with personal use.
We believe other facts in the case before this court are similarly supportive of a probable cause finding. As was noted above, Carol acted nervously in the pharmacy upon noticing Deputy Penning, a reaction that under the circumstances is inconsistent with an innocent purchase of pseudoephedrine. After being detained, Carol became defensive when asked about their purchases of the medication, vigorously protesting that the quantity possessed was less than 300 pills, and therefore legal. When her protest is combined with the fact that the Hugos avoided purchasing more than 296 pills on a single day throughout the sixteen months that their pseudoephedrine purchases were scrutinized by law enforcement, a reasonable person could infer that Carol intended by so limiting the quantities regularly purchased to obscure the couple's plan to dedicate the pills for methamphetamine manufacture.
Because we conclude Deputy Penning was justified in his belief that the vehicle contained evidence of a crime, his subsequent search of the vehicle did not violate the Fourth Amendment. The relevant evidence obtained from both the search of the vehicle and the subsequent execution of the search warrant of the residence should not have been suppressed by the district court. We therefore reverse the district court's suppression ruling and remand for further proceedings consistent with this opinion.
We therefore need not address the State's separate contention that the contraband was discovered during a proper weapons sweep of the passenger compartment.