Opinion
No. 3-393 / 02-1273.
Filed July 23, 2003.
Appeal from the Iowa District Court for Palo Alto County, Don B. Courtney and John P. Duffy, Judges.
The defendant appeals his conviction and sentence for manufacturing a controlled substance (methamphetamine) in violation of Iowa Code section 124.401(1)(c)(6) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, and Peter Hart, County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
The defendant, Joseph Thornton Sr., appeals his conviction and sentence for manufacturing a controlled substance (methamphetamine) in violation of Iowa Code section 124.401(1)(c)(6) (2001). Thornton contends the district court erred in concluding there was probable cause to issue a search warrant on his home. He asserts the warrant was illegal because (1) the informant information upon which the warrant was based was unreliable, (2) the court relied upon hearsay statements, and (3) the information was stale. Thornton additionally maintains his trial counsel was ineffective for failing to raise an issue of a conflict of interest with the issuing judge. We affirm.
I. Background Facts and Proceedings. On October 22, 2001, Sergeant Todd Suhr of the Palo Alto County sheriff's office applied to the district court for a search warrant on Thornton Sr.'s residence and on the apartment of his son, Thornton Jr., based on information received from a citizen informant, Roger Clay. Clay had contacted Suhr and informed him the Thorntons were involved in the manufacture of methamphetamine at Thornton Sr.'s home. He further informed Sergeant Suhr he was a friend of Thornton Jr. and he had seen drug paraphernalia at his apartment and in the trunk of his girlfriend's car. He further informed the officer he believed he smelled anhydrous ammonia at the apartment, and Thornton Jr. had told him he had stolen the chemical from several locations.
Shortly after this conversation, Sergeant Suhr received a call from Officer Darin Dearchs of the Algona police department, stating Clay had called him and was ready to speak to a judge. Deputy Nick Larson contacted Sergeant Suhr and informed him that he had known Clay for several years and Clay had provided reliable information in the past. He further informed Sergeant Suhr of a report that three men were observed getting into Thornton Jr.'s girlfriend's car at Wal-Mart after purchasing large amounts of pseudoephedrine. Sergeant Suhr later taped his conversation with Clay. Clay stated that several months previously he had noted the smell of anhydrous ammonia at the apartment, and he heard another person, "Wolfman", claim he talked Thornton Jr. into stealing the chemical. He stated he had been a friend of Thornton Jr. until a dispute arose over a car stereo, and he had used drugs at Thorton Jr.'s apartment. He additionally stated he positively knew that drugs were being manufactured at Thornton Sr.'s home, and gave police Sr.'s address. Sergeant Suhr testified he was aware Thornton Sr. had previously been suspected of involvement in drugs.
Based on this information, the district court issued the search warrant. Drugs and related paraphernalia were found at Thornton Sr.'s residence. Prior to trial, Thornton Sr. filed a motion to suppress evidence seized in the search, arguing there was insufficient probable cause on which to base the warrant. The district court denied the motion. Thornton Sr. was found guilty of manufacturing methamphetamine, less than five grams, in violation of section 124.401(1)(c)(6). Thornton Sr. has appealed.
II. Scope of Review. Because Thornton has raised claims involving the Fourth Amendment to the United States Constitution, our scope of review is de novo. State v. Crawford, 659 N.W.2d 537, 541 (Iowa 2003). We make an independent evaluation of the totality of the circumstances as shown by the entire record. Id. We consider both the evidence presented at the suppression hearing and that introduced at trial. Id. We give deference to the district court's findings of fact due to its opportunity to assess witness credibility, but we are not bound by them. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
III. Probable Cause. Thornton Sr. contends the district court erred in concluding there was probable cause to issue the warrant. He maintains the warrant was based on Clay's unreliable and uncorroborated information. He further asserts the information provided by Sergeant Suhr was misleading. Thornton Sr. also contends Clay's information was stale, since he stated he saw drugs and paraphernalia "in the past few months." We find no merit to these claims.
In determining whether probable cause has been established for the issuance of a search warrant, the test is whether a person of reasonable prudence would believe a crime had been committed on the premises to be searched or evidence of a crime could be located there. State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003). When a defendant challenges a warrant, a hearing as set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) is required if the defendant makes a substantial preliminary showing that (1) a knowingly and intentionally false statement, or a statement made with reckless disregard for the truth was included by the affiant, and (2) the statement was necessary to the finding of probable cause. State v. Groff, 323 N.W.2d 204, 208 (Iowa 1982).
Thornton Sr. failed to request a Franks hearing when the motion to suppress was filed. We conclude Thornton Sr. failed to properly preserve the issue of whether Sergeant Suhr's statements contained false information. State v. Gillespie, 503 N.W.2d 612, 614-15 (Iowa Ct.App. 1993).
Even assuming the issue was properly preserved, we find no merit to Thornton's claims. The United States Supreme Court has ruled that under the totality of circumstances test, the issuing judge must apply "a practical, common-sense decision whether, under all the circumstances set forth in the affidavit, including the `veracity' and `basis of knowledge' of the persons supplying the information, there is a fair probability that contraband or evidence of the crime will be found in the particular place." Illinois v. Gates, 462 U.S. 213, 238, 104 S.Ct. 2317, 2334, 76 L.Ed.2d 527, 548 (1983). The warrant applicant must show a nexus between the criminal activity, the things to be seized and the place to be searched. State v. Randle, 555 N.W.2d 666, 670 (Iowa 1996). When information from a confidential informant is involved, Iowa Code section 808.3 provides the affidavit must establish the credibility of the informant or the credibility of the information given.
We reject Thornton's claims the warrant lacked probable cause and was based on misleading information. Under Iowa law, a citizen informant is entitled to a presumption of reliability. Randle, 555 N.W.2d at 669. Deputy Larson was familiar with Clay and told Sergeant Suhr that Clay had a two-year record of reliability in providing information. Sergeant Suhr also interviewed Clay, and provided a tape recording of that interview to the district court. He said he knew Thornton, Jr. manufactured methamphetamine at his father's home. Clay stated he personally witnessed Thornton Jr. agree to steal anhydrous ammonia, and claimed he smelled the chemical on Thorton Sr.'s premises. He further stated he had consumed drugs with Thornton Jr. on several occasions. Deputy Larson additionally informed Sergeant Suhr that Thornton Jr.'s girlfriend was seen recently at Wal-Mart with three other men who had purchased a large amount of pseudoephedrine. Sergeant Suhr had personally executed a search warrant on Thornton Sr.'s residence in the past based on suspected drug activity. Information needed for probable cause to support a search warrant is far less demanding than the information necessary to support a conviction. State v. Wells, 629 N.W.2d 346, 355 (Iowa 2001). We find no error here.
Thornton Sr. next maintains Clay's information was stale and therefore not reliable. Allegations of criminal conduct may be so distant in time as to provide no probable cause for a warrant. Gillespie, 506 N.W.2d at 616. Whether information is stale depends on the circumstances of each case. Randle, 555 N.W.2d at 670. If there has been a significant passage of time between the alleged criminal activity and the application of the warrant, the applicant must show that the offense is continuous in nature, likely to remain in operation for a period of time. Gillespie, 503 N.W.2d at 616.
In the present case, although some of the information was dated from one to three months prior to execution of the warrant, Clay stated he had observed drug paraphernalia in Thornton Jr.'s girlfriend's trunk just several days prior to the warrant's issuance. Deputy Larson informed Sergeant Suhr that three men riding in the girlfriend's car were seen recently at Wal-Mart purchasing large quantities of pseudoephedrine. Sergeant Suhr independently corroborated Clay's statements regarding the Thorntons' drug activities. We hold the district court could reasonably conclude from all the information that a drug operation was on-going at Thornton Sr.'s residence.
IV. Ineffective Assistance of Counsel. Thornton Sr. also raises a claim of ineffective assistance of counsel. He asserts trial counsel failed to properly raise issues of a conflict of interest he had with the issuing judge. He claims the issuing judge represented trial counsel on past drug-related charges.
We review claims of ineffective assistance of counsel de novo. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). Thornton Sr. must prove both that her trial counsel breached an essential duty and that prejudice resulted. Id. In order to satisfy the first prong, he must overcome the presumption that trial counsel's actions were reasonable and within the normal range of competency. Id. To show prejudice, Thornton must prove a reasonable probability that but for counsel's alleged errors, the result of the trial would have been different. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). While we generally prefer to reserve questions of ineffective assistance of counsel for postconviction relief proceedings, we may resolve the claims on direct appeal if the record is sufficient. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002).
We conclude the record is insufficient to address this issue. We therefore preserve this issue for postconviction relief proceedings. We have considered all other claims raised by Thornton Sr. and find they have no merit. We therefore affirm his conviction and sentence.