Summary
affirming convictions of possession of cocaine with intent to deliver while in possession of a firearm, possession of marijuana and failure to affix drug tax stamps
Summary of this case from United States v. Sanchez-PorrasOpinion
No. 2-889 / 01-1983
Filed February 12, 2003
Appeal from the Iowa District Court for Black Hawk County, K. D. Briner, Judge.
Defendant Young appeals his convictions for possession of cocaine with intent to deliver while in the immediate possession of a firearm in violation of Iowa Code sections 124.401(1)(b) (1999) and 124.401(1)(e); possession of marijuana in violation of section 124.401(5); and failure to affix drug tax stamps in violation of section 453B.12. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and John Lammers, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Defendant Young appeals his convictions for possession of cocaine with intent to deliver while in the immediate possession of a firearm in violation of Iowa Code section 124.401(1)(b) (1999) and 124.401(1)(e); possession of marijuana in violation of section 124.401(5); and failure to affix drug tax stamps in violation of section 453B.12. We affirm.
I. Background Facts and Proceedings. On December 2, 2000, Waterloo police officer Frana applied for and received a search warrant for Eddie Young's home. When police executed the warrant, they discovered approximately $8000 in cash, over fifty pieces of crack cocaine, marijuana, a marijuana pipe, and seven different weapons with ammunition in various locations within Young's house and inside a truck parked in the driveway. At this time, Young admitted to police officers he sold crack cocaine from his home and identified his supplier.
Young was subsequently charged with possession of cocaine with intent to deliver while in possession of a firearm, possession of marijuana and failure to affix drug tax stamps. Young filed a motion to suppress the statements he made to police officers at his house before he was Mirandized. He also filed a motion to suppress the evidence seized in the execution of the search warrant, alleging officer Frana falsified his affidavit when applying for the warrant. The district court overruled both of Young's motions. After the supreme court denied Young's motion for discretionary review, Young agreed to be tried by the court based on the minutes of testimony. Young was found guilty of all charges and sentenced to a term not to exceed fifty years for the cocaine possession charge, six months on the marijuana possession charge and five years on the failure to affix drug tax stamp charges. He was also fined $5000 for the cocaine charge and $750 for the marijuana charge.
Young appeals, alleging (1) the search warrant was invalid because the application concealed the confidential informants' criminal records and receipt of compensation for information; (2) the district court erred by overruling Young's motion to suppress the evidence seized pursuant to the search warrant; and (3) his trial counsel was ineffective for failing to move to suppress Young's statements to police as "fruit of the poisonous tree."
II. Standard of Review. Because Young alleges violations of his Fourth and Sixth Amendment rights, our review is de novo. State v. McPhillips, 580 N.W.2d 748, 750 (Iowa 1988); Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989).
III. Search Warrant Application. Young argues that officer Frana's affidavit supporting the application for a search warrant fraudulently omitted two facts which render the search warrant invalid. Young contends Frana failed to disclose the informants had criminal histories and they were being paid. However, Young's motion to suppress challenged the search warrant only on the ground Frana failed to disclose the informants were paid. Error has not been preserved on Young's challenge to the warrant's validity based on the failure to disclose the criminal background of the informants. See McPhillips, 580 N.W.2d at 750 (holding failure to raise an issue in motion to suppress precludes appellate review of that issue).
To successfully impeach the warrant application, Young must demonstrate officer Frana's failure to disclose the "paid status" of the informants amounted to more than negligence or mistake. Id. at 751. An intentional or reckless misrepresentation must be shown. State v. Green, 540 N.W.2d 649, 656 (Iowa 1995). The State asserts, relying on U.S. v. Wold, 979 F.2d 632, 634-635 (8th Cir. 1992), the failure to inform the issuing magistrate that the informant was being paid by law enforcement officers was not an omission constituting a misrepresentation.
After a careful review of the record, we conclude no reversible error has been demonstrated. We find persuasive, and adopt, the district court's reasoning when it overruled Young's motion to suppress. The district court noted that Officer Frana testified he believed he had informed the issuing magistrate of the informants' "paid status." Young offered no rebuttal evidence and has failed to prove Frana did not, in fact, inform the magistrate that the informants were paid. Even if this information had not been disclosed, the totality of the circumstances demonstrated no reason to doubt the credibility of the informants. Both informants had made multiple controlled buys in temporal proximity to the search; both informants had provided useful information to police in previous situations; and police had made corroborative observations during surveillance of Young's house prior to the submission of the application. We find no error by the district court and affirm on this issue.
IV. Fruit of the Poisonous Tree. Having found no infirmity in the warrant application, we conclude Young's statements were not "fruit of the poisonous tree." Young's counsel, therefore, had no duty to move to suppress the statements and was not ineffective.