Opinion
No. 5-948 / 05-0153
Filed February 15, 2006
Appeal from the Iowa District Court for Clay County, Frank B. Nelson (motion to suppress) and Nancy L. Whittenburg (trial and sentencing), Judges.
Michelle Ann Knudson appeals her convictions for possession of methamphetamine with intent to deliver, failure to affix drug tax stamps, and possession of marijuana. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Michael J. Houchins, County Attorney, and Charles K. Borth, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Michelle Ann Knudson appeals her convictions, following a stipulated trial on the minute of evidence, for possession of methamphetamine with intent to deliver, failure to affix drug tax stamps, and possession of marijuana. She contends the district court erred in denying her motion to suppress and that her trial counsel was ineffective for failing to timely file the motion to suppress. We reverse and remand.
Knudson signed various documents in the trial court as "Michele Ann Knudson." However, the trial information charged her as "Michelle Ann Knudson" and she stated in her written arraignment and plea of not guilty that "[t]he name shown on the . . . trial information is my true name." All subsequent proceedings, including the trial court's judgment entries, identify her as "Michelle" and not as "Michele." We have therefore done the same.
On November 9, 2002, Knudson was stopped by Clay County Deputy Sheriff Brad Hawley at approximately 2:30 a.m. after the deputy observed her cross the center line of the road two or three times. Hawley learned from dispatch the vehicle was registered to Knudson, and he was aware Knudson lived with Douglas Stoermer. Hawley did not think Knudson was impaired by drugs or alcohol at the time of the stop. Deputy Hawley asked if he could search Knudson's vehicle. Knudson asked if he needed a search warrant to do so, and Hawley responded he did not if she gave her consent. Hawley testified that Knudson consented to the search by saying "okay." However, Knudson claims she did not think she had a choice in the matter, believing Hawley would just have searched the car anyway.
Hawley then asked Knudson to get out of the vehicle so he could conduct the search and asked her if she had any weapons or anything illegal on her person. Knudson stated she did not. As she was exiting the vehicle Hawley also asked Knudson to empty her pockets. As she was emptying her pockets a second deputy who had arrived at the scene saw a pipe in her hand and seized it. The pipe contained a small amount of residue which the deputies believed to be marijuana. Deputy Hawley placed Knudson under arrest for possession of marijuana and paraphernalia and put her in the squad car. Knudson stated she had not smoked the pipe in the van but had taken it with her when she left the house because she did not want to leave paraphernalia in the house. A search of the vehicle produced no drugs or other contraband, but the deputies did find several small butane torches. They recognized the torches as the type often used to smoke methamphetamine. Hawley asked Knudson for permission to search her home but she refused. Knudson was not charged with the driving offense giving rise to the stop.
Shortly after Knudson's arrest Hawley sought a warrant to search the residence Knudson shared with Stoermer. An assistant county attorney was contacted and a search warrant application was prepared. Deputy Hawley then met with a magistrate who issued the warrant. During the search of the premises where Knudson and Stoermer lived, officers found methamphetamine, marijuana, paraphernalia, scales, a large amount of cash, and other items that could be used in packaging drugs.
Based on the evidence found at their residence during the search both Knudson and Stoermer were charged with possession of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2001), failure to affix drug tax stamps, in violation of section 453B.12, and possession of marijuana, in violation of section 124.401(5).
As shown by the minutes of evidence, the possession of marijuana charge against Knudson was based solely on the marijuana found during the search of the residence.
On May 12, 2003, Knudson filed a motion to suppress evidence, alleging the evidence was illegally seized in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. More specifically, she argued the warrantless search of her person and vehicle following the stop were unconstitutional because she did not give consent to such searches, but instead felt she had no choice but to allow the officers to search her person and her vehicle. She also contended the search warrant for her residence lacked probable cause because it failed to establish a sufficient nexus between the alleged criminal activity, here Knudson's possession of paraphernalia with marijuana residue in it, and the place to be searched, here Knudson's and Stoermer's joint residence.
The trial court found there was probable cause for issuance of the warrant and denied Knudson's motion to suppress. The court found Here Ms. Knudson had a marijuana pipe in her possession. While she was not smoking the pipe when stopped, it is certainly common sense to conclude that she had smoked it in the past and that she must have access to marijuana. Access to marijuana most likely had to be through a source at her home.
Following the adverse ruling on the motion to suppress Knudson agreed to a stipulated trial on the minutes of evidence. The court found her guilty as charged and sentenced her to consecutive prison terms of not more than ten years, five years, and one year on the convictions. Knudson appeals her convictions, contending the district court erred in denying her motion to suppress.
Our review of a constitutional challenge to a search warrant is de novo. State v. Davis, 679 N.W.2d 651, 655-56 (Iowa 2004). We do not make an independent determination of probable cause, but determine whether the issuing judge had a substantial basis for concluding probable cause existed to issue the search warrant. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). Our inquiry is limited to the information, reduced to writing, which was actually presented to the issuing judge at the time the application for the warrant was made. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997).
Knudson first contends she did not voluntarily consent to the search of her person (here the emptying of her pockets) or her vehicle, but instead merely submitted to asserted authority, believing she was not free to leave, to decline to empty her pockets, or to tell the officers they could not search her car. She argues the district court thus erred in not suppressing any evidence found as a result of these warrantless searches of her person and her vehicle.
Although Knudson raised this issue below in her brief in support of her motion to suppress, the district court did not address or rule upon the issue in its ruling on the motion. Issues must ordinarily be presented to and passed on by the trial a court before they may be raised and adjudicated on appeal. Jain v. State, 617 N.W.2d 293, 298 (Iowa 2000); State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995). We do not review issues, even of constitutional magnitude, which are first raised on appeal and not presented to and passed upon by the trial court. See State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). We conclude Knudson has not preserved error as to the issue of consent to the searches of her person and vehicle and decline to address the issue.
The issues Knudson raises in this appeal with regard to issuance of the warrant and the subsequent search of her residence are identical to those raised by her co-defendant Stoermer in his appeal. See State v. Stoermer, No. 04-1154 (Iowa Ct.App. October 12, 2005). In Stoermer this court found there was not a substantial basis for the issuance of the warrant to search the residence in question because the evidence did not provide a nexus between Knudson's drug use and the property searched. The court concluded
There was no evidence indicating Knudson was currently involved in manufacturing or distributing an illegal substance, or connecting her current drug use to her property. . . . Knudson's drug consumption could have occurred in a number of places other than her home. . . . The mere fact that Knudson may have smoked marijuana, which is portable, concealable, and disposable, does not give rise to a reasonable inference that drugs and related items would be found in her residence and garage.
For the same reasons set forth by this court in Stoermer we reverse the district court's ruling on Knudson's motion to suppress. The evidence seized pursuant to the search warrant is suppressed. We reverse Knudson's convictions and sentences and remand this matter for further proceedings not inconsistent with this opinion. We need not and do not address her claim of ineffective assistance of counsel.