Opinion
No. 2-096 / 01-0697
Filed April 10, 2002
Appeal from the Iowa District Court for Black Hawk County, Jon Fister and Bruce Zager, Judges.
Defendant Jack Cannon appeals from his conviction for possession of methamphetamine with intent to deliver and failure to affix a drug tax stamp. AFFIRMED.
Roger Sutton of Sutton Law Office, Charles City, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kim Griffith and John Lammers, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Miller and Hecht, JJ.
Defendant Jack Cannon appeals from his conviction for possession of methamphetamine with intent to deliver and failure to affix a drug tax stamp. Cannon argues the district court erred (1) in finding there was probable cause to stop his vehicle; (2) in finding there was probable cause to search the vehicle and his person; and (3) in failing to permit the disclosure of the confidential informant. We affirm.
Background Facts and Proceedings. On September 7, 2001, Officer Corbin Payne of the Waterloo Police Department received information from a confidential informant that Cannon was in the possession of methamphetamine. The informant told Officer Payne that Cannon would be carrying approximately one ounce of methamphetamine in either a cigarette package on his person or in the armrest of his vehicle. The informant also supplied Payne with the following information: Cannon's location at 112 Madison; Cannon owned a black Firebird with Fayette County license plates; the vehicle would be parked in the front of the residence; and a time frame when Cannon would be leaving the address. Payne relayed this information to Officer Jason Feaker who attempted to verify it. Feaker went to 112 Madison and observed the black Firebird in the front of the home. During his surveillance, he observed Cannon leaving the residence in the Firebird. Payne then instructed Feaker to stop the vehicle.
Feaker stopped Cannon's vehicle. After asking Cannon for his driver's license, he asked him to step out of the vehicle and proceeded to pat him down. During the pat down, Feaker retrieved $600 from Cannon's pants pocket. Feaker then conducted a search of the vehicle. Feaker found two pill bottles containing methamphetamine, foil with methamphetamine and bottles of pseuodephedrine in the console of the vehicle. He also found a cigarette package containing four bags of methamphetamine and a scale on the passenger seat.
Officer Feaker testified, "Cannon consented for me to search him."
Cannon was charged by trial information with possession of a controlled substance, to-wit more than five grams of methamphetamine with the intent to deliver, a class "B" felony, in violation of Iowa Code section 124.401(1)(b) (1999) (count I), and failure to affix drug tax stamp, a class "D" felony, in violation of Iowa Code section 453B.12 (1999) (count II). Cannon filed a motion to suppress the evidence. He also filed a motion requesting the disclosure of the identity of the confidential informant. The district court denied these motions. A jury trial commenced on February 27, 2001. The jury found Cannon guilty on both counts. Prior to sentencing, Cannon filed a motion for a new trial, which the court denied. On April 25, 2001, the court sentenced Cannon to an indeterminate term of twenty-five years on count I and indeterminate term of five years on count II. Cannon appeals.
Warrantless Search and Seizure. Cannon challenges the district court's denial of his motion to suppress. Specifically, Cannon argues the district court erred in finding there was probable cause to stop his vehicle or to search his vehicle and his person. We disagree.
Cannon also argues that the search of his car was illegal because the "reasons known to Officer Payne were not initially transmitted to Officer Feaker concerning the confidential informant except to tell Feaker where to go to set up surveillance of" Cannon. The State contends error has not been preserved. "Nothing is more basic in the law of appeal and error than the axiom that a party cannot sing a song to us that was not first sung in trial court." State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). This issue was neither presented to nor passed upon by the trial court. Cannon therefore has failed to preserve error.
A. Standard of Review. We review this constitutional question de novo in light of the totality of the circumstances. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). "We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings." State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). In reviewing the district court's ruling, we consider both the evidence presented at the suppression hearing and that introduced at trial. Canas, 597 N.W.2d at 492.
B. Motion to Suppress. The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect individuals against unreasonable searches and seizures. Id. "A search conducted without a valid warrant is per se unreasonable unless a valid exception to the warrant requirement exists." State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996). The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. Id.
1. Stop of Cannon's Vehicle . Cannon claims the officers lacked probable cause to stop his vehicle. We disagree. The detailed information provided to the officers by the confidential informant and the verification of those details by Officer Feaker provided them with reasonable and articulable cause to stop Cannon's vehicle. See State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980).
2. Search of Cannon's Vehicle . Cannon asserts the search of his car was not conducted under one of the established exceptions to the warrant requirement. The State contends the warrantless search was justified by the existence of probable cause coupled with exigent circumstances. We agree.
The automobile exception to the Fourth Amendment requirement of a search warrant is applicable if probable cause and exigent circumstances exist when the police stop an automobile. State v. Dawdy, 533 N.W.2d 551, 556 (Iowa 1995); State v. Edgington, 487 N.W.2d 675, 678 (Iowa 1992). An officer has probable cause to search an automobile:
when the facts and circumstances would lead a reasonably prudent person to believe that the vehicle contains contraband. The facts and circumstances upon which a finding of probable cause is based include "the sum total . . . and the synthesis of what the police have heard, what they know, and what they observe as trained officers."
Edgington, 487 N.W.2d at 678 (citation omitted). The exigency requirement is satisfied "when the car is mobile . . . and the car's contents may never be found again if a warrant must be obtained." Id. (citation omitted). Because both circumstances existed in the present case, the search conducted falls within the recognized exception and did not violate the Fourth Amendment.
3. Search of Cannon's Person . Cannon claims the district court erred when it concluded that the search of his person was justified under the "inevitable discovery rule." Specifically, Cannon contends Iowa has not adopted the "inevitable discovery rule." We disagree.
Contrary to Cannon's assertion, Iowa has adopted the "inevitable discovery rule." "It is based on the premise that relevant, probative evidence gathered despite Fourth Amendment violations is not constitutionally excluded when the police would have inevitably discovered the same evidence acting properly." State v. Christianson, 627 N.W.2d 910, 912 (Iowa 2001); see also State v. Seager, 571 N.W.2d 204, 211 (Iowa 1997). The district court concluded, and we agree, that the money found on Cannon would have inevitably been discovered by the officers when Cannon was arrested for the drugs that were found in his vehicle. The conclusion we reach obviates our need to discuss the consent exception. Accordingly, we affirm the district court on this issue.
Identity of Confidential Informant. Cannon contends the district court erred by failing to permit the disclosure of the confidential informant. Because the challenge is on constitutional grounds, we review this claim de novo. State v. Robertson, 494 N.W.2d 718, 720 (Iowa 1994).
The State is ordinarily privileged to withhold the identity of a person who merely gives information about the commission of a crime. Id. at 722; State v. White, 530 N.W.2d 77, 82 (Iowa Ct.App. 1994). This "informer's privilege" rests on the important public policy of maintaining the flow of information leading to the investigation and prosecution of criminals. Robertson, 494 N.W.2d at 722. There are times, however, when a court must balance this important State interest against the defendant's right to prepare and present a meaningful defense. White, 530 N.W.2d at 82-83. Thus, if the informant was present at the scene of the crime, or a participant to it, such person is no longer merely an informant but a witness whose identity must ordinarily be divulged. Id. at 83. "A defendant has no right, however, to confront an informant who does not, directly or indirectly, give any evidence at trial." Id. at 83 (quoting State v. Byrd, 448 N.W.2d 29, 31 (Iowa 1989)).
After a careful review of the record, we conclude the district court properly denied Cannon's request to disclose the confidential informant's identity. The record before us yields no evidence defendant's need for disclosure of the informant outweighs the State's interest in protecting the informant's anonymity. We therefore affirm the district court on this issue.
AFFIRMED.