Opinion
No. 1-009 / 00-0008.
Filed February 28, 2001.
Appeal from the Iowa District Court for Marshall County, PETER B. NEWELL, Judge.
On appeal from her conviction for possession of a controlled substance, defendant contends the court erred in overruling her motion to suppress evidence of the search of her pockets. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch and Martha J. Lucey, Assistant State Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, James Detaeye, County Attorney, and Timothy Meals, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and VOGEL and MAHAN, JJ.
On appeal from her conviction for possession of a controlled substance, Christy Jackman contends the court erred in overruling her motion to suppress evidence seized from a closed container while searching her pockets. Because no exception to the warrant clause of the Fourth Amendment can be found in the record, we reverse the decision of the district court.
Background facts . Jackman was convicted of possession of a controlled substance in violation of Iowa Code section 124.401(5) (1999). During the late evening hours of April 30, 1999, the car in which Jackman was a passenger was stopped for exceeding the speed limit. During the stop, the driver and owner of the vehicle consented to a search of the vehicle. Jeffrey Bunn, Chief of Police for State Center, asked Jackman to get out of the vehicle so he could conduct the consent search. He then asked her if she had any weapons or contraband on her person and she responded that she did not. Chief Bunn asked her if she would be willing to empty her pockets. Jackman complied and began removing several items from her pockets. As she was removing items from the exterior pockets, her denim jacket opened, revealing to the officer a gray or black case in her inside jacket pocket. When Chief Bunn asked her what was in the case, she "froze." He became suspicious due to his inability to clearly see the case in the dark, with only a flashlight to aid his vision. He then placed one hand on the exterior and one hand on the interior of the jacket pocket to remove the case. Chief Bunn opened the case and discovered a straw, a Swiss Army knife and a bag of what appeared to be marijuana. Testing of the green leafy substance confirmed this suspicion.
Prior to her trial, Jackman filed a motion to suppress the seized evidence. The trial court overruled this motion and the marijuana was allowed into evidence at trial. Jackman was subsequently convicted of the possession of a controlled substance charge.
Scope of review . In assessing alleged violations of constitutional rights, our standard of review is de novo. State v. Washburne, 574 N.W.2d 261, 263 (Iowa 1997). We conduct an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Astello, 602 N.W.2d 190, 195 (Iowa Ct.App. 1999). In reviewing the district court's ruling on a motion to suppress, we consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997). An adverse ruling on a motion to suppress will preserve error for our review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
Motion to suppress . Jackman alleges Chief Bunn's search of her property during the routine traffic stop was a violation of her Fourth Amendment right to privacy. The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect individuals against unreasonable searches and seizures. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). Searches and seizures conducted without prior approval by a judge or magistrate are per se unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. Id. The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996). These exceptions include searches based on consent, plain view, exigent circumstances, and searches incident to arrest. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993). Evidence obtained in violation of the Fourth Amendment is inadmissible at trial under the exclusionary rule. See State v. Ahart, 324 N.W.2d 317, 318 (Iowa 1982) (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453-54 (1963)).
Jackman does not contest Chief Bunn's request to step out of the vehicle nor does she challenge her consent to emptying her pockets. She contends only that Chief Bunn did not have reasonable cause to open and search the case after he removed it from her jacket. The State argues Chief Bunn was entitled to conduct a Terry pat-down in order to ensure officer safety and the search of the pouch was allowable in the course of this action.
In Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968), the Supreme Court held that an officer may make a protective warrantless search of a person when the officer, pointing to specific and articulable facts, reasonably believes under all the circumstances that the suspicious person presents a danger to the officer or to others. State v. Merrill, 538 N.W.2d 300, 301 (Iowa 1995). Further, "the Supreme Court specified that a specific and articulable suspicion does not mean that the officer must be `absolutely certain that the individual is armed'; rather, the issue is whether a `reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. Riley, 501 N.W.2d 487, 489 (Iowa 1993) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909).
The record reflects Jackman had consented to removing the items from her pockets by complying with Chief Bunn's request. In the course of conducting this lawful but limited search, Chief Bunn observed the case tucked in an interior pocket of Jackman's jacket. He questioned her about the contents and she exhibited nervous behavior that she had not demonstrated prior to the inquiry. Chief Bunn then became concerned that she was armed, citing his observation of the case, Jackman's suspicious behavior and the poor lighting conditions as a basis for a Terry pat-down. When the officer had removed the case, he proceeded to open it and discovered the presence of contraband.
Jackman claims Chief Bunn was not justified in performing a search of the case once he removed it from her control. Probable cause to enter a pocket or an article of clothing is provided if, during the Terry pat-down, the officer felt a weapon contained therein. See Terry, 392 U.S. at 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908. The Supreme Court stated:
A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby . . .Id. (citations omitted).
The record before us on appeal is void of any specific or articulable facts, which would allow a warrantless search of the case once it was removed from Jackman's person. During the suppression hearing, Chief Bunn did not state whether he felt a weapon within the soft case upon external patting or removal of it. Further, even if the case contained a weapon, once it had been removed from Jackman's control, it was no longer a threat to the officer.
The State has failed to prove the search of the pouch fell within one of the recognized exceptions of the warrant clause that would render a warrantless search reasonable. Chief Bunn did not garner Jackman's consent to open and search the case. He did not testify as to any exigent circumstances justifying a warrantless search. Further, the contraband was not in the officer's plain view nor was the search incident to an arrest.
Because the record is void of any justification of a warrantless search, we find the search of the case was a violation of Jackman's Fourth Amendment right against unreasonable searches and seizures. Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.