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State v. Rhiner

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 373 (Iowa Ct. App. 2003)

Opinion

No. 2-348 / 99-1854.

Filed February 28, 2003.

Appeal from the Iowa District Court for Polk County, Glenn Pille (trial) and Larry J. Eisenhauer (judgment and sentencing), Judges.

Timothy M. Rhiner appeals his conviction of conspiracy to manufacture a controlled substance in violation of Iowa Code section 124.401(1)(c)(6) and failure to possess a drug stamp in violation of Iowa Code section 453.(b)(3) (1997). AFFIRMED.

Kermit Dunahoo, of Dunahoo Law Firm, P.C., Des Moines, and Timothy A. Rhiner, Anamosa, pro se for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and John Courter, Assistant County Attorney, for appellee

Considered by Vaitheswaran, P.J., and Harris and Snell, Senior Judges. Eisenhauer, J., takes no part.

Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).


Timothy M. Rhiner was convicted of conspiracy to manufacture a controlled substance in violation of Iowa Code section 124.401(1)(c)(6) and failure to possess a drug stamp in violation of Iowa Code section 453B.3 and 453B.12 (1997). He appeals raising numerous issues. After fully considering the appealed issues we find them to be without merit and affirm.

Defendant was stopped driving a car in Des Moines by a Des Moines police officer. The officer, Gregory Dickel, saw the car cross the centerline traveling eastbound while he was traveling west. The officer observed a large amount of blue exhaust, detected a very loud muffler and saw defendant and a passenger pull seatbelts across their bodies as the vehicles met each other. The officer pursued and stopped defendant's vehicle. Defendant driver had one passenger, Frank Nucaro. The car was registered to a third person.

As the officer attempted to obtain defendant Rhiner's driver's license, a strong odor of ether started to make him nauseated and cough. He then asked defendant to exit the vehicle, walked him back to the squad car to issue citations. As he did this he observed the passenger, Nucaro, reach behind the seat and pull what he believed to be a blanket over an item in the back seat. Being suspicious he handcuffed defendant in the back of his car and had Nucaro exit the vehicle. When the officer leaned into the vehicle the smell of the ether was very strong. On the front passenger side floorboard he observed an open black bag which held a container of clear liquid. Officer Dickel moved the container flap on the bag two inches in order to determine what the container was. Officer Dickel believed the container was the source of the ether smell and suspected the vehicle was a methamphetamine laboratory. Knowing that the ingredients for manufacturing this substance were very volatile he called for the Narcotics Control Unit.

The vehicle was then searched by the unit's officers and impounded. The narcotic's officers found in the car ether, coffee filters containing sludge, a gas can with tubing, muriatic acid and other ingredients for manufacturing methamphetamine.

The case was tried to the court after defendant waived his right to a jury trial in writing.

Defendant raises questions of constitutional law that we review de novo. State v. Brown, 253 N.W.2d 48, 50 (Iowa 1982). Other issues raised in defendant's motions are reviewed for abuse of discretion.

I. Initially, defendant filed a motion to suppress and a motion to dismiss. He claims the Fourth Amendment to the United States Constitution was violated in that the officer did not have reasonable cause to stop his vehicle. The motion to suppress was filed late. It must be filed within forty days of arraignment. Iowa R. Cr. P. 2.11(4). Arraignment was held on August 17, 1999; the motion was filed on October 22, 1999. Sixty-six days had expired. The defendant's claim here is not preserved for review.

Nevertheless, because of defendant's various claims of ineffectiveness of counsel, we have considered this issue on its merits. An officer must have reasonable cause to stop a person for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 202 L.Ed.2d 889, 906 (1968). Here the officer cited three grounds, vehicle crossing the centerline, muffler emitting blue smoke and being excessively loud. Each ground is sufficient and was supported by evidentiary proof, as was properly found by the trial judge. See State v. Kinkead, 570 N.W.2d 509 (Iowa 1997).

The arresting officer testified to each of these reasons, any one of which is sufficient to justify a stopping of defendant's vehicle. As to assessing credibility of the officer's testimony, deference is afforded to the trial court's findings. State v. Jackson, 542 N.W.2d 842, 846 (Iowa 1996).

Defendant further attacks the State's use of evidence obtained after the car was stopped and then searched. Using a motion to dismiss procedure defendant asserts he was prevented from showing the stop was illegal because the car was sold without notice to him which made it impossible to show the muffler was working properly, the seat belts were there, and the car had a steering defect. Defendant was not prevented from testifying notwithstanding the car's unavailability.

Defendant makes a claim of expectation of privacy. The car was owned by a third party and no showing was made that defendant was in lawful possession of the car. Roger v. State, 695 So.2d 244, 248 (Ala.Crim.App. 1996). Lacking a possessor's interest in the car, defendant cannot complain about a subsequent search of the car. United States v. Baker, 221 F.3d 438, 442 (3rd Cir. 2000).

Even with an expectation of privacy, the search of the vehicle was supported by probable cause and exigent circumstances. See State v., Moriarty, 566 N.W.2d 866, 868-69 (Iowa 1997); State v. Merrill, 538 N.W.2d 300, 301-2 (Iowa 1955). Exigency exists with the car's mobility. State v. Predka, 555 N.W.2d 202, 207 (Iowa 1996). Officer Dickel stated that he detected a "strong smell of ether" which got stronger as he approached the car. He knew that ether is a main ingredient in the manufacture of methamphetamine. The sense of smell has long been recognized as a proper method to detect illegal substances. See Johnson v. United States, 338 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436, 439-40 (1948).

Probable cause may be established by odor and smell in cases involving the use of marijuana. See Moriarty, 566 N.W.2d at 869. Initially, the officer thought there might be a weapon in the backseat when the car's passenger was observed pulling a blanket over something in the back seat. However, even before checking the back seat, he noticed the strong smell, and located the open bag containing a can of ether on the front floorboard. The search of defendant's car was clearly supported by law.

Defendant filed a motion in arrest of judgment. He claimed he had newly discovered evidence. He seeks to relitigate the motion to suppress by offering an additional witness to the sequence of events. The witness, Justin Venard, a jail inmate, informed defendant he witnessed the stop and search. This evidence apparently relates to the arrival of the narcotics unit on the scene. Defendant suggests that he was set up as the result of police surveillance of his home for some time prior to his arrest. We find the testimony and theory irrelevant. As stated before, we hold the search and seizure were lawful.

II. Two issues are presented relating to the drug tax stamp conviction. One claim is that methamphetamine suspended in a liquid is not subject to tax. Why? Because you cannot stick a stamp on a liquid. Of course, a stamp could be affixed to a container holding the drugs. Similarly, pills are contained in bottles. Marijuana is contained in plastic. The argument here is spurious. Though novel, this argument fails to negate the drug stamp conviction under Iowa Code section 453B.3 and 453B.12.

The other claim here is that since two containers containing drug residue were found in the car and there were two defendants, defendant should be charged only with possession of one container and its drug content amount, thus reducing his sentence. There is no precedent for this claim and it defies logic. Defendant and his passenger were both convicted of conspiracy. The co-conspiracy rule assigns legal culpability equally to all conspirators. Grandison v. State, 506 A.2d 580, 588 (Md. 1986); see also State v. Boyer, 342 N.W.2d 497, 498 (Iowa 1984). Although the methamphetamine was in unfinished liquid form, we also note that our supreme court has held that purity of a mixture is irrelevant to the purpose of a statute using the term "mixture" as this statute does. State v. Maghee, 572 N.W.2d 1, 11 (Iowa 1997).

III. Defendant asks for a new trial or a dismissal of the charges based on his claim of unlawful destruction of evidence. This claim refers to the sale of the car, referenced earlier, and the destruction of the methamphetamine related paraphernalia. The drug items were considered toxic and were destroyed in accordance with set procedure to remove a health hazard. Defendant thinks he could have rebutted the officer's testimony that he smelled ether by showing the drug items were in airtight containers.

At most this pursuit of evidence could have produced only potentially exculpatory evidence. State v. Atley, 564 N.W.2d 817, 821 (1997). A due process violation will occur if there is proof the destruction was done in bad faith. Id. No such evidence is shown by this record.

Defendant filed a motion to compel the State to disclose the identity of a passenger in the police cruiser. The motion was denied. The State did not list this person as a witness. No authority is provided for the proposition that the State had any obligation to provide this information. The issue is deemed waived. Iowa R.App.P. 14( a)( c).

IV. Defendant claims he had ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. We review this de novo. The test is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland v. Washington, 446 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed. 674, 692 (1984).

Defendant asserts that he is the victim of a police conspiracy. He believes the police had his home under surveillance and that establishing that would have allowed him to develop a defense that the stopping and searching of his car was a setup and unlawful. Defendant had a series of five attorneys representing him. He presents sixty-seven complaints of ineffective assistance of counsel against them. He raises eleven claims that allege misconduct in the discovery process.

These recite untimely discovery motions, failure to employ an investigator, failure to keep defendant informed, and failure to advise defendant of the right to represent himself. Without any evidence, defendant asserts his counsel was "corrupting the truth process by acting in collusion with the prosecutor."

The record discloses no evidence of an ongoing surveillance. In response to discovery requests, the prosecutor revealed that no prior surveillance was ordered by the county attorney, no such warrants were obtained and secretly executed against his house or vehicle. The sheriff's office and DCI provided statements that neither agency had conducted any surveillance.

Defendant claims his counsel did not argue completely or vehemently enough his claims during a renewed motion to suppress hearing. The evidence had been admitted and signed in written form which was sufficient.

We have examined these claims and others made by defendant against his several attorneys and find all of them meritless. A further pursuit of any of these claims by defendant or defendant's counsel would not have developed any evidence that would have changed the result. Defendant has not shown any professional conduct that failed to meet the standard adopted by Strickland and Washington. Id.

Defendant filed his own pro-se appellate brief in addition to the extensive brief filed by his appellate counsel. Defendant's appellate counsel carefully listed all of defendant's arguments without necessarily ascribing to them, and then proceeded to present the best legal arguments in his judgment for defendant. Appellate counsel acted entirely properly and ethically in representing defendant.

There is nothing shown by this record to warrant a preservation of any of defendant's claims for postconviction relief. See State v. Kendall, 167 N.W.2d 909, 911 (Iowa 1969). Defendant's claims have been thoroughly presented to us and are found to have no reversible merit.

The trial judge properly assessed the factual scenario, the principles of law and concluded that defendant was proved guilty as charged. We affirm the judgment.

AFFIRMED.


Summaries of

State v. Rhiner

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 373 (Iowa Ct. App. 2003)
Case details for

State v. Rhiner

Case Details

Full title:STATE OF IOWA, Plaintiff-Appellee, v. TIMOTHY ARTHUR RHINER…

Court:Court of Appeals of Iowa

Date published: Feb 28, 2003

Citations

662 N.W.2d 373 (Iowa Ct. App. 2003)