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State of Iowa v. Zedcliff Odoyo Kiche

December 12, 2012

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
ZEDCLIFF ODOYO KICHE, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Johnson County, Marsha Bergan (motion to suppress) and Douglas S. Russell (guilty plea and sentencing), Judges.

The opinion of the court was delivered by: Huitink, S.J.

Defendant appeals his convictions for possession of a controlled substance (cocaine) with intent to deliver and child endangerment, and also his conviction for failure to affix a drug tax stamp. AFFIRMED.

Considered by Vaitheswaran, P.J., Potterfield, J., and Huitink, S.J.*fn1

I. Background Facts & Proceedings.

The record includes evidence of the following: On July 2, 2010, Zedcliff Kiche was granted a deferred judgment after entering a guilty plea to failure to affix a drug tax stamp. The terms and conditions of his resulting probation included the following provision:

I understand and agree that my person, property, place of residence, vehicle and personal effects may be searched at any time, with or without a search warrant or warrant of arrest, by any probation officer or law enforcement officer having reasonable grounds to believe contraband is present. I further understand that a refusal to consent to such a search constitutes a violation of this agreement.

Kiche was also ordered to refrain from using or possessing any illegal or controlled substances and was further required to submit to drug testing to verify his compliance.

On August 3, 2010, Kiche tested positive for marijuana. He also failed to report for a drug test on October 4, 2010, and on October 22, 2010, he tested positive for cocaine. On October 26, 2010, probation officer Cora Dixon and correctional services officer Juan Santiago visited Kiche's home to verify his compliance with the terms of his probation. Upon arrival, they encountered Kiche outside of his home, and based on his appearance and behavior, both believed Kiche was under the influence of an unspecified illegal controlled substance.

When Dixon asked permission to enter Kiche's home, Kiche, according to Dixon, replied "there was no problem; they could enter the home." Santiago's version of the conversation is essentially the same as Dixon's. Kiche denied giving either officer express permission to enter his home. A subsequent search of Kiche's person produced a small plastic bag of a white powdery substance. Evidence found inside the home included drug paraphernalia and other items commonly associated with distribution of a controlled substance. Kiche's minor child was also present inside the home at the time these events occurred. As a result, Kiche was charged with possession of a controlled substance (cocaine) with intent to deliver, possession of controlled substance (marijuana) with intent to deliver, maintaining a drug house, and child endangerment. Kiche entered not-guilty pleas to all of the charges against him.

In an untimely filed motion to suppress, Kiche alleged the search of his home violated his protections against unreasonable search and seizures under both the Iowa and the United States Constitutions. Because the trial court found good cause for defense counsel's failure to timely file the motion to suppress, the motion was heard and decided on its merits. The trial court denied Kiche's motion to suppress, citing his status as a probationer, the earlier-quoted conditions of his probation, and the officers' reasonable suspicion that criminal activity was occurring in Kiche's home. The court also found Kiche had expressly consented to the search based on the officers' versions of their conversations with Kiche before they entered his home.

Kiche thereafter entered into a plea agreement whereby he pleaded guilty to possession of a controlled substance (cocaine) with intent to deliver, and child endangerment. He was sentenced to a term not to exceed ten years on the possession-with-intent-to-deliver count and two years on the child-endangerment count. The trial court ordered the sentences of confinement be served concurrently. Both sentences were suspended, and Kiche was placed on probation for three years.

As an additional result of these convictions, Kiche's deferred judgment for the earlier referred to offense was revoked, and a judgment of conviction was entered against him on that charge. He was sentenced to a term of confinement not to exceed five years. The sentence of confinement was suspended, and Kiche was placed on probation for three years to be served concurrently with his probation on the possession-with-intent-to-deliver and child-endangerment convictions. Kiche appeals his convictions in both cases. His appeals have been consolidated for our review.

II. Untimely Motion.

It is clear the motion to suppress filed by defense counsel was untimely. See Iowa R. Crim. P. 2.11(4). Defense counsel filed a motion seeking an extension of the time to file the motion, and the court granted the motion, finding there was good cause to grant the extension. See Iowa R. Crim. P. 2.11(3) (providing court may consider an untimely motion if it finds "good ...


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