Opinion
No. 5-030 / 04-0790
Filed February 9, 2005
Appeal from the Iowa District Court for Pocahontas County, Ronald H. Schectman and Joel E. Swanson, Judges.
David William Hansen appeals his convictions, following a trial to the court, for manufacturing methamphetamine, failure to affix a drug tax stamp to a taxable quantity of marijuana, and possession of methamphetamine. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Ann Beneke, County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
David William Hansen appeals his convictions, following a trial to the court, for manufacturing methamphetamine, failure to affix a drug tax stamp to a taxable quantity of marijuana, and possession of methamphetamine. He contends the district court erred in denying his motion to suppress the evidence officers found while searching his residence pursuant to a search warrant and that his counsel was ineffective for not challenging the warrant on the ground that it was based in part on stale information. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following facts. On December 30, 2003, Kristen Heim and Brad Pedersen went to the residence of Kristen's estranged husband, Aaron Heim. Upon entering the house Kristen and Pedersen saw the defendant, Hansen, holding a plastic baggie containing what Kristen estimated to be three to four ounces of marijuana. Kristen also observed a spoon containing a white powdery substance she believed to be methamphetamine. She also saw pieces of aluminum foil with burn marks and noticed the odor of burning incense. The windows were covered to prevent observation into the house from the outside.
Kristen and Pedersen related this information to Deputy Paul Samuelson of the Humboldt County Sheriff's office. Kristen also told Deputy Samuelson that Hansen lived on a Pocahontas County farmstead near Rolfe with Tonya Chase, and that he drove a red four-door car. The Pocahontas County Sheriff's office confirmed that Hansen lived with Chase at 41195 320th Avenue, Rolfe, Iowa and that he had previously been arrested while driving a red Plymouth Reliant registered to Chase. Officers also determined that Hansen had pled guilty to delivery of cocaine in 1991, he pled guilty to possession of marijuana in 1995, he was arrested for possession of methamphetamine in 2001, and there was a current outstanding warrant for his arrest based on an underlying charge of possession of marijuana with intent to deliver.
The next day, December 31, 2003, officers applied for and received a warrant to search the Pocahontas County farmstead where Hansen was living for controlled substances and evidence of drug manufacture and trafficking. The warrant included the residence, outbuildings, and the red Plymouth Valiant. Officers executed the warrant at approximately 11:30 a.m. on December 31, 2003. Upon entering the residence officers encountered Hansen, Chase, Eric Nafe, Lacinda Lei Nafe and the Nafes' two young sons. After being advised of his constitutional rights, Hansen voluntarily produced a bag of marijuana. In the garage officers found numerous items which could be used in the manufacture of methamphetamine. Testing by the Iowa Department of Criminal Investigation of the coffee filters and liquids found in the residence indicated that they contained methamphetamine and methamphetamine residue. In addition, officers found two baggies of marijuana containing approximately 46.8 grams of marijuana. No drug tax stamp was affixed to the marijuana. A loaded rifle was also seized from the residence.
On January 20, 2004 Hansen was charged, by trial information, with: manufacture of methamphetamine while in possession of a firearm, in violation of Iowa Code section 124.401(1)(b) (2003) (Count I); possession of methamphetamine, in violation of section 124.401(5) (Count II); child endangerment, in violation of section 726.6 (Count III); possession of marijuana, in violation of section 123.401(5) (Count IV); and failure to affix drug tax stamps to a taxable quantity of marijuana, in violation of section 453B.3 (Count V). On February 16, 2004, Hansen filed a motion to suppress all of the evidence discovered during the execution of the search warrant, arguing the warrant was not supported by probable cause. He claimed, among other things, that the information provided in the warrant application did not establish a nexus between the illegal activities observed by Kristen and Pedersen at Heim's residence and the farmstead where Hansen was living.
The district court held a hearing on the motion to suppress and overruled the motion. In denying the motion the court, in part, found Information for the magistrate begins with Hansen being in possession of a large quantity of marijuana. This was observed by both Heim and Pedersen. It was an amount that even if there were some later substantial smoking activity, there would be some left to either sell or leave at the [Aaron Heim] home or to be taken by Hansen. Due to the expense of controlled substances, probably the latter. There was sufficient nexus between Hansen and the car. The car would be the transport. There was a nexus between Hansen and the rural Rolfe home of Chase, as cars ordinarily are associated with homes (or garage). There was information of Hansen being seen there, as well as using that car for some period of time. There would be reason to suspect criminal activity at the rural Rolfe home, as Hansen controlled a sizeable cache of marijuana. Samuelson's attachment expresses his experience in drug investigation, indicating that certain property is found in the homes and vehicles of persons dealing in drugs. There was sufficient nexus between the criminal activity, things to be seized, and the places to be searched, including the home, garage and automobile.
After the court filed its ruling, the State filed an amended trial information charging Hansen with only three counts, manufacturing methamphetamine, in violation of Iowa Code section 124.401(1)(c) (Count I), failure to affix a drug tax stamp to a taxable quantity of marijuana, in violation of section 453B.3 (Count II), and possession of methamphetamine, in violation of section 124.401(5) (Count III). Hansen waived his right to jury trial and agreed to a trial to the court on the minutes of evidence. The court found Hansen guilty as charged and imposed concurrent sentences of ten years, five years, and one year, respectively.
Hansen appeals his convictions, contending the district court erred in denying his motion to suppress and his trial counsel was ineffective for failing to challenge the search warrant on the additional ground that the warrant was based in part on stale information.
II. SCOPE AND STANDARDS OF REVIEW.
Hansen's challenge is based on his constitutional right to be free from unreasonable search and seizure, as guaranteed by the Fourth Amendment to the United States Constitution and Article I section 8 of the Iowa Constitution. These federal and state provisions are usually deemed to be identical in scope, import, and purpose. State v. Beckett, 532 N.W.2d 751, 755 (Iowa 1995). We review this alleged constitutional violation de novo in light of the totality of the circumstances as shown by the entire record. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
When there is an alleged denial of constitutional rights, such as ineffective assistance of counsel, we review the totality of the circumstances in the record de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). While we often preserve ineffective assistance claims for a postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claim.
III. MERITS.
A. Probable Cause for Warrant.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. Evidence obtained in violation of this provision is inadmissible in a prosecution, no matter how relevant or probative the evidence may be. State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995).
The existence of probable cause to search a particular area depends on whether a person of reasonable prudence would believe a crime has been committed on the premises to be searched or that evidence of a crime might be located there.
State v. Poulin, 620 N.W.2d 287, 290 (Iowa 2000). "The issuing judge is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, probable cause exists". State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997) (internal quotations omitted). In so doing, the judge may rely on reasonable common-sense inferences from the information presented. Poulin, 620 N.W.2d at 290; State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). "[W]e draw all reasonable inferences to support the judge's finding of probable cause and give great deference to the judge's finding." Gogg, 561 N.W.2d at 364 (internal citation omitted). Because warrants are preferred, close cases are decided in favor of upholding the validity of the warrant. State v. Padavich, 536 N.W.2d 743, 747 (Iowa 1995).
"A probable cause finding must rest on `a nexus between criminal activity, the things to be seized and the place to be searched.'" Green, 540 N.W.2d at 655 ( quoting State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987)). This nexus can be found by considering the type of crime, the nature of the items involved, the extent of the defendant's opportunity for concealment, and the normal inferences as to where the defendant would be likely to conceal the items. Gogg, 561 N.W.2d at 365.
Hansen argues that there was insufficient probable cause to issue a search warrant for the Pocahontas County farmstead because there was no nexus between the information provided in the warrant application and the farmstead. We disagree. The application established that Kristen Heim and Pedersen had seen Hansen holding a plastic baggie containing three to four ounces of marijuana, according to Heim's estimate. She had observed marijuana in the past and knew what it looked like. As the district court found, "Magistrates do no operate in a vacuum. . . . [M]agistrates are aware that 3-4 ounces of marijuana is substantially more than an accommodation offense of one-half ounce or less." We agree with the court that based on the amount of marijuana and the customary expense of controlled substances Hansen most likely was going to take some of the marijuana with him from Heim's home either for future use or to sell. Thus, there was a substantial basis for the magistrate to believe Hansen's illegal activity would continue beyond the time and place Kristen and Pedersen observed him with the marijuana.
In addition, the application established that Hansen had pled guilty to delivery of cocaine in 1991, he pled guilty to possession of marijuana in 1995, he was arrested for possession of methamphetamine in 2001, and there was an outstanding warrant for his arrest based on the underlying charge of possession of marijuana. "[P]olice knowledge of reputation may be an important element in determining probable cause." Poulin, 620 N.W.2d at 290. A suspect's reputation, as known by the police, is a "`practical consideration of everyday life upon which an officer (or a magistrate) may properly rely. . . .'" Id. (quoting United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 2081-82, 29 L. Ed. 2d 723, 733 (1971)). Similarly, in making a probable cause determination a magistrate may consider a suspect's history of involvement in the drug trade. Padavich, 536 N.W.2d at 748. Hansen's prior drug convictions and numerous prior drug charges, including recent charges, gave the magistrate an additional reason to believe Hansen's criminal activity would continue beyond the place and time Kristen Heim and Pederson observed him with a substantial quantity of drugs.
The application also contained information from Kristen Heim and corroborated by police that Hansen lived at the Pocahontas County farmstead with Chase. It further stated that the affiant, Deputy Samuelson, had training, education, and experience in the investigation of drug offenses, and based on that experience and training he knew drug dealers often keep records of drug transactions in their residences. "An officer's expert opinion is an important factor to be considered by the judge reviewing a warrant application." State v. Godberson, 493 N.W.2d 852, 856 (Iowa 1992). Thus, Samuelson's expert opinion gave the magistrate a substantial basis for believing that evidence of Hansen's illegal drug activities would be found at the farmstead where he was living. "It is reasonable to assume that persons involved with drug trafficking would keep evidence — drugs, weighing and measuring devices, packaging materials and profits — at their residences." Id. at 855. "Direct observation is not required." Id. at 856.
For all of the reasons set forth above, we conclude the magistrate could reasonably infer from the facts recited in the warrant application that Hansen's residence was a likely location for illegal substances, evidence of illegal drug activity, or both, to be found. The information in the application established a sufficient nexus between Hansen's recently observed illegal drug activity and Pocahontas County farmstead. Probable cause existed for the issuance of the warrant permitting the search of the farmstead.
B. Ineffective Assistance.
Hansen also claims his trial counsel was ineffective for failing to include as an additional basis for his motion to suppress a claim that the information in the warrant application regarding Hansen's prior drug convictions and charges was stale and thus should not have been considered by the magistrate in determining probable cause.
Allegations of criminal conduct may be so distant in time as to provide no probable cause for a warrant. State v. Randle, 555 N.W.2d 666, 670 (Iowa 1996); State v. Gillespie, 503 N.W.2d 612, 616 (Iowa Ct.App. 1993). Whether information is stale depends on the circumstances of each case. Randle, 555 N.W.2d at 670. However, as noted above, in making a probable cause determination the magistrate may consider a suspect's history of involvement in the drug trade. See Padavich, 536 N.W.2d at 748. Here the application showed Hansen had a long and continuing record of drug-related offenses. This information was relevant to the current assertions by Heim and Pedersen that they had just seen Hansen with a large quantity of marijuana, and necessary for the magistrate to make a full and fair determination regarding probable cause to issue a search warrant related to the current alleged drug offense. The magistrate properly considered Hansen's prior criminal record concerning drug offenses. See United States v. Feliz, 182 F.3d 82, 86-88 (1st Cir. 1999) (holding that defendant's twelve-year record of drug trafficking was properly considered in determining whether there was probable cause to issue search warrant for evidence of suspected current drug offense).
Accordingly, we conclude Hansen's counsel had no duty to raise this meritless issue. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Hansen was not denied his constitutional right to effective assistance of counsel as claimed.
IV. CONCLUSION.
We conclude the district court did not err in denying Hansen's motion to suppress. The warrant application established a sufficient nexus between the illegal activity witnessed by Heim and Pedersen and the Pocahontas County farmstead where Hansen was living. Probable cause existed for the issuance of the warrant permitting the search of the farmstead. Hansen's counsel had no duty to raise the meritless claim of staleness in the motion to suppress, and thus Hansen was not denied effective assistance of counsel.