Opinion
No. 4-395 / 03-0959.
July 28, 2004.
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal and Artis I. Reis, Judges.
Defendant appeals from judgment and conviction entered following verdicts finding her guilty of possession of a controlled substance with intent to deliver, conspiracy to deliver a controlled substance, and failure to possess a tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Barbara Query appeals from judgment and conviction entered following verdicts finding her guilty of possession of a controlled substance with intent to deliver, conspiracy to deliver a controlled substance, and failure to possess a tax stamp. She contends there is insufficient evidence to support a finding of guilt on any count and the district court erred in overruling a hearsay objection. In a pro se brief, Query contends the court erred in denying her motion to suppress. We affirm.
I. Background Facts and Proceedings.
On August 28, 2002, narcotics officers arranged for surveillance of two people traveling to Des Moines in a red Pontiac Firebird. The two people, Bradley Winters and his mother, Barbara Query, were observed leaving a Des Moines attorney's office. Query then drove the Firebird to the home of Kathleen Stalker on Cleveland Street, where Stalker was waiting with Paul Hulbert. Winters, Stalker, and Hulbert all have previous convictions for drug possession.
While at the Cleveland Street residence, Winters and Hulbert smoked methamphetamine in the kitchen. Winters provided Hulbert with $5000 to purchase methamphetamine. Hulbert left the residence and later returned with eight one-ounce bags containing methamphetamine. Winters then told Hulbert he had to get some more money from his mother to buy more methamphetamine. Winters entered the room where Query and Stalker were conversing and returned to Hulbert with an additional $5000. Hulbert and two other individuals left the Cleveland Street residence.
Winters later learned Hulbert was unable to purchase additional methamphetamine. Query, Stalker, and Stalker's daughter drove to an apartment complex on Evergreen Street in a blue Celebrity while Winters followed in the Firebird. While Query, Stalker, and Stalker's daughter waited in the parking lot, Winters entered the apartment building to recover the $5000 from Hulbert. After a short while, Winters returned and got in the Firebird. The women got in the Celebrity, and both cars left the apartment complex. The cars stopped near Interstate 235 and Query exited the Celebrity with some items and entered the passenger side of the Firebird. The Firebird then drove north on Interstate 35.
Iowa State Trooper Griggs initiated a traffic stop of the vehicle after it was observed speeding and weaving across the lane line. As the Firebird was stopping, Trooper Griggs observed both Winters and Query making furtive movements in the front of the vehicle. The trooper described Query as moving downwards toward the center console in the front seat area, appearing to hide something.
Upon exiting the Firebird, Trooper Griggs observed Winters to be under the influence of drugs. While Trooper Griggs was questioning Winters near the rear of the car, another officer slowly drove by the Firebird and observed Query glancing around before pushing her hands down between her leg and the center console. The officer observed Query's hands go deep down between the seat and the console.
When later searching the vehicle, officers found: methamphetamine in a plastic bag on the driver's side near the door; a paper bag containing $5000 under the driver's seat; drug paraphernalia on the floor of the driver's side next to the door; a small address book in the center console; two plastic bags of methamphetamine and a sock containing additional bags of methamphetamine under the passenger's seat; and two notebooks containing addresses and telephone numbers, and a cellular phone on the passenger-side floorboard. The total weight of the methamphetamine located under the passenger seat was more than seven grams. A search of Winters found methamphetamine and a card containing different figures. Query had a recipe card with the apartment address listed on it in her bra. She also had Winters's billfold. Other quantities of methamphetamine and drug paraphernalia were located at the Cleveland Street residence, inside the Celebrity, at the apartment Winters visited, in Stalker's purse, and in Hulbert's truck.
At trial, Winters testified he alone owned the drugs and drug paraphernalia found in the Firebird, that he sought to purchase $10,000 worth of methamphetamine for personal use, and that his mother did not have knowledge of the methamphetamine he purchased that day. Winters testified the methamphetamine was located under the passenger seat of the Firebird because he had planned to sit in the passenger seat when returning to Mason City.
Hulbert testified he had met Query two or three times prior to their arrest. Hulbert claimed Query had never purchased drugs from him and had never participated in any conversation with him about drugs.
II. Sufficiency of the Evidence.
Query contends the evidence is insufficient to support her convictions. Specifically, she contends the State failed to prove she exercised dominion or control over the drugs, and that she did not enter into an agreement, plan, or conspiracy to possess methamphetamine. We review challenges to the sufficiency of evidence for correction of errors of law. State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003).
To prove Query had constructive possession of the methamphetamine, the State must establish by proof: (1) she exercised dominion and control over the contraband; (2) she had knowledge of the contraband's presence; and (3) she had knowledge the material was a narcotic. See id. Query admitted she had knowledge of the drug and its presence. The only dispute is whether she had dominion or control.
In determining whether a defendant had constructive possession, we consider a number of factors. Id. at 571. Although not a complete list, these factors include: incriminating statements made by the defendant, incriminating actions of the defendant upon the police's discovery of drugs among or near the defendant's personal belongings, the defendant's fingerprints on the packages containing drugs, and any other circumstances linking the defendant to the drugs. Id.
Our supreme court has rejected a finding of dominion and control based on proximity alone. Id. at 571-72. In Cashen, marijuana was found lodged in the rear seat on the side of the vehicle on which the defendant had been sitting. Id. at 572. In finding the defendant did not have dominion and control over the marijuana, the court stated:
In this case, Cashen was not the owner of the car. The drugs were not in plain view. The marijuana was not found with Cashen's personal effects. After the police found the marijuana, it cannot fairly be said that Cashen's actions were of an incriminating nature. Cashen did not behave suspiciously when the car was stopped for the traffic violation. There is no evidence to suggest Cashen made any suspicious or furtive movements in an effort to conceal the drugs from the officers once the car was pulled over. An officer also testified Cashen did not smell of marijuana. There was no evidence of how long the marijuana had been in the vehicle. The State did not offer evidence showing Cashen's fingerprints on the baggie. No witness testified that the marijuana belonged to Cashen. In fact, his girlfriend claimed ownership. There was no evidence showing Cashen had control and dominion of the drugs with the ability to access them.
Id. However, in Cashen the defendant was in the vehicle with five other people, three of whom were in the backseat with him. Id.
The case at bar is distinguishable from Cashen. Only Query and Winters were in the vehicle. Although Query was in the passenger seat at the time the vehicle was pulled over, she had driven the car earlier in the day. Methamphetamine was found under Query's seat. Query was observed making furtive movements by not only the officer who initiated the traffic stop, but also by a second officer who observed Query when she was alone in the vehicle. She lied to an officer about her whereabouts that day and her purpose for visiting Des Moines. Query had the address of a drug dealer inside her bra and possessed Winters billfold. Additionally, Query provided Winters with $5000 to purchase methamphetamine. Although Winters testified the methamphetamine was his alone, the credibility of his testimony was for the finder of fact to consider. See State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct.App. 1992). We conclude sufficient evidence shows Query had dominion and control over the methamphetamine, and therefore sufficient evidence supports her conviction of possession with intent to deliver.
Query next contends the evidence does not establish that she entered into any agreement, plan, or conspiracy to possess methamphetamine. Although the State did not present direct evidence of an agreement to possess methamphetamine, the totality of the evidence suggests the existence of such an agreement. Query provided Winters with $5000 to purchase methamphetamines. She accompanied him on his trip to Des Moines and to Stalker's home. She knew Winters was in possession of methamphetamine. When Hulbert informed Winters he could not purchase any more methamphetamine, Query accompanied Winters to an apartment complex to recover the $5000. Query had on her person the address of a drug dealer. We conclude the evidence is sufficient to support Query's conviction of conspiracy to deliver a controlled substance.
Finally, based on Query's convictions of possession with intent to deliver and conspiracy to deliver, we conclude the evidence is sufficient to support her conviction of failure to possess a tax stamp.
III. Hearsay.
Query next contends the district court erred in overruling her hearsay objection to the State's rebuttal evidence. We review her claim for errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000).
At trial, the Hulbert's testimony was admitted by deposition. In the deposition, Hulbert stated Query did not know about any illegal activity regarding methamphetamine. On rebuttal, the State called Officer Fedderson who contradicted Hulbert's account. Specifically, Fedderson testified that Hulbert told him Winters and Query were looking for some methamphetamine and that Hulbert stated he tried to get them some methamphetamine on another occasion. Fedderson also testified that Hulbert stated Winters revealed he needed to get money from Query to buy additional methamphetamine.
Hulbert was first mentioned by the defense as a witness after the State rested its case in chief. The prosecutor therefore attempted to exclude Hulbert as a witness. Defense counsel then stated, "[T]he State has the opportunity in rebuttal evidence to put on further evidence in this case to rebut any statements that may be said by Mr. Hulbert." The court permitted the defense to call Hulbert as a witness on the condition the prosecution could depose Hulbert and would have some leeway on its rebuttal testimony to cover any problems that might have arisen due to the defendant's failure to give notice of the witness.
When called, Hulbert refused to testify, citing his Fifth Amendment right against self incrimination. Defense counsel then sought to admit Hulbert's deposition into evidence, but insisted the prosecution could not impeach Hulbert's deposition in its rebuttal because Hulbert would not be allowed to respond. The court admitted Hulbert's deposition, but allowed the prosecution to present rebuttal evidence. Defense counsel objected to the rebuttal testimony as hearsay.
Iowa Rule of Evidence 5.804(b)(3) allows an exception for hearsay statements which at the time of making tended to subject the declarant to criminal liability. The trial court noted it anticipated some of Hulbert's statements to Fedderson would fall under 5.804(b)(3) when it overruled Query's hearsay objection. The statements Hulbert made to the rebuttal witness were statements against his interest and were therefore admissible. They were also proper impeachment as they were offered to rebut Hulbert's statements in his deposition. Iowa R. Evid. 5.806.
IV. Motion to Suppress.
Finally, Query contends the district court erred in denying her motion to suppress because she was illegally seized. We review her claim de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
Searches and seizures conducted without a warrant are per se unreasonable unless they fall within one of the exceptions to the Fourth Amendment's warrant requirement. State v. Legg, 633 N.W.2d 763, 767 (Iowa 2001). The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. Id. One such exception is an investigatory stop in which the officer has a reasonable suspicion that criminal activity is afoot. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). An investigatory stop is constitutionally permissible only if the officer who has made the stop can point to "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (quoting Terry v. Ohio, 392 U.S. 1, 22-23, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). Reasonable suspicion is an objective determination. Terry, 392 U.S. at 21- 22, 99 S. Ct. at 1880, 20 L. Ed. 2d at 906. The reasonableness of the stop turns on whether the facts available to the officer at the time of the stop would cause a reasonable person to take action. Id.
Query argues she was illegally seized for thirty minutes while officers waited for the arrival of a drug canine. Given the facts known by the officers, and Query's observable behavior, we conclude they had reasonable suspicion criminal activity was afoot. The district court did not err in denying her motion to suppress.
AFFIRMED.