Opinion
No. 5-234 / 04-1286
Filed July 13, 2005
Appeal from the Iowa District Court for Tama County, Carl D. Baker (suppression motion) and Thomas L. Koehler (trial and sentencing), Judges.
Defendant appeals his conviction for possession of marijuana. AFFIRMED.
John L. Thompson, Tama, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Brent D. Heeren, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Steven Howard Spooner appeals his conviction, following trial to the court on the minutes of evidence, for possession of marijuana. He contends the district court erred in overruling his motion to suppress. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following relevant facts. Tama police officer Joe Quandt was engaged in patrol duties on February 29, 2004, from 7:00 p.m. to 4:00 a.m. He was taking a break at the Kwik Star convenience store in Toledo at approximately 2:00 a.m. when he saw a female enter the store as he was approaching the counter to purchase his items. The female was later identified as Lisa Fagerlind-Spooner (hereafter "Fagerlind"). Officer Quandt testified Fagerlind purchased a pack of cigarettes and as Officer Quandt stood next to her in line he could smell the odor of burnt marijuana on her. Quandt stated he was familiar with the smell of marijuana because he had smelled it several times in the many drug cases with which he had dealt. He also noted that Fagerlind appeared to be in a hurry and very nervous because of his presence.
Quandt quickly paid for his food and then conferred with Officer Anderson outside the Kwik Star. Anderson advised Quandt he saw Fagerlind get into a vehicle parked by the gas pumps. Officer Quandt was going to approach the vehicle, but it left the parking lot before he got a chance. He then returned to his patrol car and pursued the vehicle to stop it and investigate the marijuana odor. Before the stop, Quandt ran the license plates and learned the plates were registered to a Nancy Spooner who had a prior drug-related conviction.
Officer Quandt stopped the vehicle to investigate, and as he approached the vehicle he could smell the odor of burnt marijuana coming from inside. Quandt testified that he asked the driver, who was later identified as Nancy Spooner, for consent to search the vehicle and she agreed. She got out of the vehicle. Quandt testified he then asked both the passengers if they objected to a search of the vehicle, they did not, and so asked them to get out of the car also. Fagerlind was the front-seat passenger and the back-seat passenger was later identified as the defendant, Steven Spooner (hereafter "Spooner"). Quandt found a "crumpled-up" marijuana cigarette on the floor where Spooner had been sitting. Another officer then arrived on the scene and placed Spooner under arrest. While the officer was patting Spooner down incident to the arrest he found a plastic bag of marijuana in Spooner's sock.
The State charged Spooner, by trial information, with possession of marijuana, in violation of Iowa Code section 124.401(5) (2003), and prohibited acts, in violation of sections 124.402(1)(e) and 124.402(2)(a). Spooner moved "to suppress all physical and statement evidence, due to unconstitutional search and seizure and/or violation of constitutional rights." A hearing was held on Spooner's motion to suppress and the district court denied the motion. The court stated that the issue raised by Spooner in his motion was that
Fagerlind also filed a motion to suppress and both motions were heard together by the district court. The portion of the court's ruling dealing with Fagerlind's challenge to the search of her purse is not at issue in this case and not relevant for purposes of this opinion.
Officer Quandt did not have probable cause to stop the vehicle because the smell of burnt marijuana, standing alone, cannot give rise to probable cause. [Spooner] argue[s] that Officer Quandt's contention that he smelled the odor of burnt marijuana on Lisa's person was not sufficient to justify a stop of the vehicle.
The district court concluded that
[W]hen Officer Quandt smelled the odor of marijuana on [Fagerlind's] person he had authority to conduct a warrantless search of her person. When [Quandt] learned that Lisa had gotten into a vehicle and driven away, the probable cause to search her person remained and Officer Quandt, therefore, had probable cause to stop the vehicle she occupied. Once he stopped the vehicle, Officer Quandt detected the odor of marijuana coming from the vehicle, and he therefore had probable cause to conduct a warrantless search of that vehicle.
The court found Spooner guilty of possession of marijuana after a bench trial on the minutes of evidence. He was sentenced to sixty days with all but two days of the sentence suspended, placed on unsupervised probation for one year, and fined $250 plus surcharge and court costs.
The prohibited acts charge was dismissed.
On appeal Spooner claims the district court erred in denying his motion to suppress. More specifically, he claims the odor of burnt marijuana on Fagerlind's person, standing alone, did not provide probable cause to search her person and thus did not provide probable cause to stop the vehicle.
Spooner also appears to claim the odor of burnt marijuana on Fagerlind's person, standing alone, did not provide a probable cause or exigent circumstances justifying search of the vehicle, removal of the passengers, or search of his person. However, the district court did not address or pass upon these issues. It held that the odor of burnt marijuana on Fagerlind's person, together with the odor of marijuana coming from the vehicle, provided probable cause to conduct a warrantless search of the vehicle. The court did not address or pass upon questions concerning removal of the passengers or search of Spooner's person. Spooner has not preserved error on these additional claims and we thus confine our consideration to the issues passed upon by the district court, probable cause to search Fagerlind's person and thus to stop the vehicle. See State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (noting that we require error preservation even on constitutional issues); State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997) (stating issues must be presented to and passed upon by the district court before they can be raised and decided on appeal); State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995) (noting that where error is not preserved on an issue there is nothing for an appellate court to review).
II. SCOPE AND STADNARDS OF REVIEW.
We review constitutional issues de novo, under the totality of the circumstances. State v. Kreps. 650 N.W.2d 636, 640 (Iowa 2002); see also United States v. Arvizu, 534 U.S. 266, 275, 122 S. Ct. 744, 751, 151 L. Ed. 2d 740, 750 (2002) (stating standard for appellate review of reasonable-suspicion determinations is de novo). We give deference to the district court's findings of fact due to its opportunity to assess the credibility of the witnesses. Kreps, 650 N.W.2d at 640; State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). However, we are not bound by those findings. Id.
III. MERITS.
Spooner contends that all the evidence obtained after the stop was obtained in violation of the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. The Federal Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." U.S. Const. amend. IV. The Fourth Amendment is made applicable to the states under the Fourteenth Amendment to the Federal Constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961); Kreps, 650 N.W.2d at 640. The search and seizure clause of the Iowa Constitution is substantially identical in language to the Fourth Amendment. See Iowa Const. art. I, § 8. We therefore usually deem the two provisions to be identical in scope, import, and purpose. Kreps, 650 N.W.2d at 640-41; State v. Scott, 409 N.W.2d 465, 467 (Iowa 1987). Evidence obtained in violation of these provisions is inadmissible, regardless of its relevancy or probative value. Kreps, 650 N.W.2d at 641.
As set forth above, the district court found that based solely on the smell of the burnt marijuana on Fagerlind's person Officer Quandt had probable cause to conduct a warrantless search of her person and therefore had probable cause to stop the vehicle he knew she occupied. We recognize, as the district court did, that our supreme court has not determined whether the smell of burnt marijuana alone can give rise to probable cause to conduct a warrantless search of a person. See State v. Moriarty, 566 N.W.2d 866, 868-69 (Iowa 1997); State v. Merrill, 538 N.W.2d 300, 301-02 (Iowa 1995). It has determined, however, that the smell of burnt marijuana plus furtive movements, Merrill, 538 N.W.2d at 302, or plus an alligator clip hanging from the defendant's rearview mirror, Moriarty, 566 N.W.2d at 869, provided an officer with probable cause to search a person.
We note that under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), Officer Quandt could have reasonably conducted an investigatory stop of the vehicle in question with less than probable cause. Terry recognized a police officer's authority to stop an individual on less than probable cause for the purpose of investigating unusual behavior that reasonably causes the officer to believe criminal activity is afoot. State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001).
Here we need not decide whether the smell of burnt marijuana alone gave Officer Quandt probable cause to search Fagerlind and thus to stop the vehicle she occupied. The facts of this case are similar to those in Moriarty and Merrill, and we find those cases to be instructive. Here, as in those cases, the smell of burnt marijuana "was not the only factor in the officer's probable cause calculus." Moriarty, 566 N.W.2d at 869. Quandt testified at the suppression hearing that while Fagerlind was in the convenience store she appeared to be in a hurry and nervous as a result of his presence. We conclude Fagerlind's nervousness in Officer Quandt's presence is a factor that may be considered in the probable cause determination. See State v. Predka, 555 N.W.2d 202, 207 (Iowa 1996) (stating nervousness when search of trunk was discussed was a legitimate circumstance to consider in determining probable cause to search). We conclude that Fagerlind's nervousness when in the presence of Officer Quandt combined with the plain smell of the burnt marijuana on Fagerlind provided Quandt with probable cause to search Fagerlind's person and thus to stop the vehicle he knew she occupied.
Spooner does not claim or argue that even if Officer Quandt had probable cause to search Fagerlind's person he nevertheless lacked a legally sufficient reason to stop the vehicle in which she was a passenger.
IV. CONCLUSION.
Based on our de novo review we conclude the district court did not err in denying Spooner's motion to suppress. Here, as in Merrill and Moriarty, the odor of burnt marijuana on Fagerlind's person was not the only factor considered by Officer Quandt in making his probable cause determination. The smell of burnt marijuana plus the fact Fagerlind was in a hurry and nervous because of Officer Quandt's presence provided Quandt with probable cause to search Fagerlind's person and thus probable cause to stop the vehicle he knew she occupied. All other issues raised by Spooner on appeal are either not preserved, are waived, or are without merit.
See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief . . . to argue in support of an issue may be deemed waiver of that issue.").