Opinion
No. 2-184 / 01-0520
Filed September 25, 2002
Appeal from the Iowa District Court for Story County, Michael J. Moon, William J. Pattinson, and Dale E. Ruigh, Judges.
Zanoni appeals his conviction and sentence for drug possession, contending the evidence seized from him should have been suppressed and that his sentencing enhancement was in error. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Stephen Holmes, County Attorney, and James Scheetz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Michael Zanoni appeals his judgment and sentence for possession of a controlled substance, third offense, in violation of Iowa Code section 124.401(5) (1999). He contends the district court should have suppressed evidence obtained following a stop of his vehicle. He also contends a sentencing enhancement based on prior offenses is illegal. We affirm.
I. Background Facts and Proceedings
Ames police officer Jamie Miller was on patrol duty shortly before midnight when he observed a car parked in the middle of the road with the doors open. Two men were standing behind the car, talking and flailing their arms. Officer Miller proceeded past the intersection and turned his car around. Seeing him, the two men hurriedly got into the car, closed the doors, and left.
Officer Miller followed the vehicle for a short while and then pulled the car over. He determined that the driver had a barred license as a habitual offender. Miller told the driver he would be placed under arrest and advised him of his intent to search the car incident to the arrest.
Zanoni was the passenger. While Miller was handcuffing the driver, Zanoni suddenly locked the passenger door and leapt into the driver's seat. Another officer who had recently arrived at the scene ordered Zanoni to return to the passenger seat. Miller then ordered Zanoni out of the car, asked him if he had anything that would cause injury, and informed him of his intent to conduct a pat down search. Zanoni pressed himself against the vehicle. Miller ordered him to move away and began retrieving items from Zanoni's pockets, including his wallet and a flat metal object that turned out to be a postal scale. Continuing with the search, he felt a soft, crinkly object in Zanoni's groin area. As he got to Zanoni's foot, he noticed a clear, plastic baggie lying on the ground. The baggie contained a green leafy substance that appeared to be marijuana. Zanoni was placed under arrest.
The State charged Zanoni with two offenses, but proceeded to trial on the minutes of testimony only with respect to the second charge of possession of a controlled substance, third offense. Iowa Code § 124.401(5). Prior to trial, Zanoni unsuccessfully moved to suppress evidence obtained following the stop and subsequent search.
The district court adjudged Zanoni guilty of possession of a controlled substance (third offense) and sentenced him. Zanoni appealed.
II. Suppression Ruling
A. Vehicle Stop. Zanoni first contends Officer Miller's investigatory stop of his vehicle was unconstitutional. See U.S. Const. amend. IV. He maintains there was neither reasonable suspicion nor probable cause to stop the vehicle.
Officers may stop a vehicle for investigatory purposes if they have "reasonable suspicion" to believe "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Accord State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001). We examine the whole record to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have reasonably believed an offense was being committed. State v. Horton, 625 N.W.2d 362, 369-70 (Iowa 2001).
The district court found that Zanoni and the driver of the vehicle displayed "furtive actions." The court went on to state:
When combined with the vehicle's presence in an area of suspected criminal activity and the unusual behavior — parking in the middle of the road and moving excitedly about the rear of the car — a reasonable person would believe that the officer's stopping the car to investigate was appropriate.
On our de novo review of the record, we agree with the district court's assessment and its conclusion that this evidence furnished reasonable suspicion for the stop. Officer Miller testified, "at that time of the month or that time of the year we had been receiving a lot of criminal mischiefs and a lot of burglaries to vehicles in that area." Although he did not specify the dates or number of these incidents, he did point out that they "had been occurring during the early evening hours, early morning hours." He further stated, "nights prior we had received numerous reports." Together with the lateness of the hour, the animated nature of the vehicle occupants' initial conversation, and the hurried way in which they left the scene on seeing the police, we believe a reasonable officer would have reasonably believed a crime was being committed. See State v. Kreps, ___ N.W.2d ___, ___ (Iowa 2002) (upholding stop based on evasive action of passenger). Cf. State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993) (upholding stop where officer observed parked car in early morning hours, knew the area had frequently been burglarized, and saw the defendant pull out just as he began approaching).
B. Search. Zanoni next contends the scope of Officer Miller's search exceeded the scope of a legitimate pat-down search. We disagree. Officer Miller explained that he conducted the pat down search to secure his safety and the safety of others. Although the record reveals that Miller delved into Zanoni's pockets more than once and retrieved items in addition to the scale and wallet, the record also reveals that Miller did so only after "locating the postal scale and believing that it was being used as drug paraphernalia." This expanded search was permissible based on the newly added suspicion of drug possession. See State v. Scott, 518 N.W.2d 347, 350 (Iowa 1994). Accordingly, we agree with the district court that the search was constitutional.
III. Legality of Sentence
Zanoni has two prior convictions for possession of methamphetamine. He was charged with those crimes on September 21, 1995 and September 28, 1995 and judgment and sentence on both counts was delivered on October 16, 1995.
Zanoni contends that, under section 124.401(5), a "first conviction must precede the commission of the second offense." He maintains that because judgment on both offenses was issued on the same day, this requirement is not satisfied and he should have only been sentenced as a second offender. Our review is on error. State v. Halterman, 630 N.W.2d 611, 613 (Iowa Ct. App. 2001).
Iowa Code section 124.501(5) states:
It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this chapter or chapter 124A, 124B, or 453B is guilty of an aggravated misdemeanor. A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B is guilty of a class "D" felony.
(Emphasis added.)
Under the plain language of the statute, a person who "has previously been convicted two or more times of violating this chapter" receives an enhanced sentence. We conclude, therefore, that the district court correctly sentenced Zanoni as a third time offender.
In reaching this conclusion, we have considered State v. Hollins, 310 N.W.2d 216, 217-18 (Iowa 1981), holding under the habitual offender statute that "each succeeding conviction must be subsequent in time to the previous convictions, both with respect to commission of the offense and to conviction." The court has since distinguished Hollins on the ground that the habitual offender statute focuses on "the number of convictions rather than the persistency of the conduct." Patchette v. State, 374 N.W.2d 397, 400-01 (Iowa 1985). We believe section 124.401(5) also focuses on the persistency of the conduct, in this case, drug use. Therefore, we do not find Hollins controlling. We reject Zanoni's challenge to his sentence.
But see Cynthia L. Sletto,Annotation, Chronological or Procedural Sequence of Former Convictions as Affecting Enhancement of Penalty Under Habitual Offender Statutes, 7 A.L.R. 5th 369 (1992) (listing cases from other jurisdictions that have declined to read their habitual offender statutes in the same manner).