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State v. Kern

Supreme Court of Iowa

May 24, 2013

STATE OF IOWA, Appellee,

         Appeal from the Iowa District Court for Polk County, Artis I. Reis, Douglas F. Staskal, and Robert B. Hanson, Judges.

         The defendant appeals her conviction on narcotics charges by challenging the search of her home and the sufficiency of the evidence.

          Christopher R. Kemp of Kemp Sease & Dyer, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, Richard J. Bennett Sr. and Kevin R. Cmelik, Assistant Attorneys General, John P. Sarcone, County Attorney, and Joseph D. Crisp and Andrea M. Petrovich, Assistant County Attorneys, for appellee.

          CADY, Chief Justice.

         In this appeal, we primarily consider the constitutionality of a search of the home of a parolee that uncovered evidence used to prosecute and convict the parolee of numerous drug offenses. In doing so, we must determine if the search was justified by the doctrines of consent, special needs, exigent circumstances, community caretaking, or a general balancing of the governmental interests served by the search against the privacy interest of the parolee. We also consider the sufficiency of the evidence to support the charges. On our review, we find the search of the home and the seizure of the evidence violated article I, section 8 of the Iowa Constitution. We reverse the judgment and sentence of the district court and remand the case for further proceedings.

         I. Background Facts and Proceedings.

         Christine Kern was a parolee living in Des Moines. She was granted parole on February 17, 2010, following a period of incarceration for a conviction of operating a motor vehicle while intoxicated, third offense. As a condition of parole, Kern signed a parole agreement. The agreement contained numerous standard conditions of parole, including paragraph P, which provided: "I will submit my person, property, place of residence, vehicle, personal effects to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any parole officer or law enforcement officer." Paragraph P is a standard condition of parole in Iowa.

         On November 3, 2010, Staci Huisman, a child assessment worker with the Iowa Department of Human Services (DHS), received an anonymous complaint that marijuana was being grown and processed in the house where Kern resided. The complaint also claimed marijuana was used and sold in the house, and these circumstances endangered Kern's sixteen-year-old daughter and her infant grandchild who occasionally stayed in the house. At the time, Kern lived in the home with her boyfriend, Sean Grant.

         On November 5, 2010, Huisman investigated the complaint by making a home visit with the assistance of two police officers. The police routinely assist the DHS in their investigation of drug complaints in order to protect the safety of the investigator. The police presence also offers an opportunity for them to request consent to search the premise for illegal substances.

         Huisman met narcotics police officers, Mark Chance and Matthew Jenkins, near Kern's residence, and they proceeded to the residence. Kern responded to a knock on the door, and she allowed Huisman and the officers to enter the home. Grant was also present. The officers felt Grant purposely stood between them and the interior of the home to prevent them from entering further into the home. Huisman explained the nature of the complaint and asked for consent to search the residence. Kern and Grant denied the allegations and denied consent to search the residence. Detective Jenkins believed the conduct of Kern and Grant was "defensive."

         Huisman explained she would need to remove the children from the residence if she was unable to search the home. Kern still refused to give consent. Huisman spoke with Kern's daughter and explained the situation and the allegations against Kern and Grant.[1]

         Huisman then removed the children and left the residence with the officers. After traveling a short distance, Huisman advised the officers that Kern was a parolee. Jenkins called Sergeant Brandon Garvey of the probation and parole office and asked him to assist in searching the house pursuant to the standard consent provision of parole agreements.

         Garvey told Jenkins he was unable to immediately assist the law enforcement officers, but verified Kern was on parole and that she had signed a parole agreement containing the consent-search clause in paragraph P. Garvey also gave Jenkins permission to conduct the search on his behalf.

         Chance and Jenkins returned to Kern's residence. Kern appeared to be walking to her car as the officers arrived, but she returned to the house when she saw the officers. The officers informed Kern and Grant they intended to search the house because Kern was a parolee and had consented to a search in her parole agreement.

         Jenkins remained with Kern and Grant while Chance began the search. Garvey, the parole officer, arrived shortly after the search started. In the basement, Chance found three separate marijuana growing operations consisting of numerous marijuana plants. He then accompanied Grant to a bedroom he shared with Kern. The bedroom contained guns, as well as marijuana. The marijuana was located in a jar on a dresser and a jar on a bed stand. Marijuana was also found in large quantities in the dining room. The dining room appeared to serve as a place to dry marijuana. Plants were strewn about the room, and two large glass jars of dried marijuana were in the room. More glass jars of marijuana were located in a dresser in the living room. Kern and Grant were arrested. Grant immediately took full responsibility for the marijuana operation and said Kern had nothing to do with it.

         The State charged Kern with four crimes: (1) conspiracy to manufacture a controlled substance in violation of Iowa Code section 124.401(1)(d) (2009), (2) manufacturing a controlled substance in violation of Iowa Code section 124.401(1)(d), (3) possession of a controlled substance with intent to deliver in violation of Iowa Code section 124.401(1)(d), and (4) failure to possess a tax stamp in violation of Iowa Code sections 453B.3 and 453B.12.

         Prior to trial, Kern joined Grant's motion to suppress the marijuana as evidence at trial. She argued it was obtained in violation of her constitutional rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.

         In a hearing on the motion, Chance and Jenkins testified that Kern's refusal to grant permission to search her house suggested to them that drugs were located in the house. The State argued Kern waived her rights to object to the search by signing a parole agreement containing paragraph P. The State also asserted the search was justified by several recognized exceptions to the warrant clauses of the Fourth Amendment and article I, section 8. The exceptions included exigent circumstances, the community caretaking function of police officers, and the special needs presented by the maintenance of a parole system. Finally, the State argued the search was reasonable under the totality of the circumstances.

         The district court found Kern gave "advance consent to search her property without a warrant or without reasonable cause" by signing the parole agreement. Additionally, it upheld the search as reasonable based on the DHS complaint combined with the police officer's suspicion derived from the conduct of Kern and Grant during the initial encounter. The court also found the search was justified under exigent circumstances and the community caretaking function.

         In a subsequent trial on the minutes of testimony, the district court found Kern guilty of all four counts. It imposed judgment and sentence, and Kern appealed.

         II. Issues Presented.

         Kern raised two issues on appeal. First, she asserted there was insufficient evidence to support a finding of guilt beyond a reasonable doubt on each of the crimes charged. Second, Kern asserted the search of her home was in violation of her constitutional search and seizure rights under the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution. To resolve this second claim, we must unravel several threads of constitutional search and seizure law, including waiver or consent, special needs, exigent circumstances, community caretaking, and what has been termed the "general balancing approach."

         III. Sufficiency of the Evidence.

         A. Scope and Standard of Review.

         We first address whether the State introduced sufficient evidence for a fact finder to find Kern guilty beyond a reasonable doubt. We address this issue first because the Double Jeopardy Clause would not permit a retrial of the charges if there was insufficient evidence of guilt presented at trial. State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 290, 102 L.Ed.2d 265, 272–73 (1988)).

         We review challenges to the sufficiency of the evidence presented at trial for correction of errors of law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). The essential question before the court on a challenge to sufficiency of the evidence is whether there was substantial evidence to support a guilty verdict beyond a reasonable doubt. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).

         We view the evidence presented at trial in the light most favorable to the State but consider all the evidence in the record, not just the evidence favoring the State. Id. Moreover, "[t]he evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002).

         B. Discussion.

         Iowa Code section 124.401(1) makes it

unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance.

         While section 124.401(1) prohibits a variety of conduct, it essentially defines one prohibition that can be violated in a number of ways. See State v. Parrish, 502 N.W.2d 1, 3 (Iowa 1993) (discussing Iowa Code section 204.401(1), the predecessor of Iowa's current controlled substance statute). We address each violation under the statute.

         1. Conspiracy to manufacture a controlled substance in violation of Iowa Code section 124.401(1)(d).

         Kern asserts the district court erroneously found her guilty of conspiracy to manufacture a controlled substance in violation of Iowa Code section 124.401(1)(d). See State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (discussing the relationship between Iowa's controlled substance statute, Iowa Code section 124.401, and Iowa's conspiracy statute, Iowa Code section 706.1).

         To convict Kern of conspiracy to manufacture a controlled substance, the State was required to show:

(1) the defendant agreed with one or more persons that one or both of them would manufacture or attempt to manufacture [marijuana], (2) the defendant entered into such an agreement with the intent to promote or facilitate the manufacture of [marijuana], (3) one of the parties to the agreement committed an overt act to accomplish the manufacturing of [marijuana], and (4) the alleged coconspirator(s) was not a law enforcement agent or assisting law enforcement when the conspiracy began.

See State v. Fintel, 689 N.W.2d 95, 102 (Iowa 2004) (alterations added); see also Iowa Code § 706.1 (defining the crime of conspiracy).

         Here, the evidence supported a finding that Grant engaged in an overt act of growing marijuana in the home. Moreover, Grant was not a law enforcement agent or assisting law enforcement. Thus, the fighting issue is whether Kern formed an agreement that Grant would manufacture marijuana and whether she formed such an agreement with the intent to promote or facilitate the manufacture of marijuana. The State was not required to show Kern manufactured marijuana, but that she agreed Grant would manufacture marijuana. See State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999); see also State v. Corsi, 686 N.W.2d 215, 220 (Iowa 2004); State v. Carlson, 203 Iowa 90, 93, 212 N.W 312, 313 (1927).

         A conspiracy is essentially a criminal contract characterized "as a 'concert of free wills, ' 'union of the minds of at least two persons, ' and 'a mental confederation involving at least two persons.' " Speicher, 625 N.W.2d at 741–42 (quoting State v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984)). Conspiracies are, by nature, clandestine affairs. Corsi, 686 N.W.2d at 219. Thus, direct evidence of an agreement to form a conspiracy is often absent, and in response, we have consistently allowed circumstantial evidence and inferences drawn from the circumstances to support a conviction on a conspiracy charge. Id.; accord State v. Blyth, 226 N.W.2d 250, 263 (Iowa 1975); Carlson, 203 Iowa at 93, 212 N.W. at 313. We have also said:

"An agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators."

State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (quoting 16 Am. Jur. 2d Conspiracy § 10, at 204–05 (1998)).

         Circumstantial evidence of an agreement must be based on more than suspicion. State v. Keyser, 257 Iowa 73, 79, 130 N.W.2d 701, 704 (1964). Similarly, "circumstantial evidence that proves mere presence at the scene of the crime or association with those involved in the crime is not sufficient to show an agreement." Corsi, 686 N.W.2d at 219. Mere presence or general association creates no more than "conjecture and speculation" of criminal complicity. Speicher, 625 N.W.2d at 743.

         However, the central location of the manufacturing process can be relevant to the element of an agreement. See Corsi, 686 N.W.2d at 220 (observing that defendant's commission of drug manufacturing in a codefendant's apartment supports an inference that the defendant had the apartment tenant's permission to conduct the illegal activity, which supports an inference that a conspiracy between them had been formed). In Corsi, we implicitly acknowledged the existence of an important inversion of our holding in Speicher that mere presence at the location of a crime or mere association with criminals was insufficient for a finding that the defendant formed an agreement. While the mere presence of a person on someone else's property where someone else is or has been manufacturing a controlled substance supports only conjecture of participation in the conspiracy, permission given by a property owner for others to maintain an obvious manufacturing operation throughout the premises would be strongly suggestive of a tacit agreement, at the very least. See id. at 220.

         Indeed, our decision in Fintel, which arose out of the same facts as Corsi, is instructive here. In Corsi, the defendant was prosecuted for manufacturing a controlled substance in Fintel's apartment. See id. at 219–20. Thus, we contemplated in Fintel that a conspiracy could be inferred in part because the defendant "knew methamphetamine was being manufactured in his apartment" and the "defendant's apartment was littered with the necessary ingredients and utensils for manufacturing methamphetamine." Fintel, 689 N.W.2d at 102 (emphasis added). While more inculpatory evidence was presented in Fintel than in this case—and we did not pass on whether Fintel's possession of the apartment in which he knowingly allowed manufacturing of narcotic substances was alone sufficient to find his participation in the conspiracy—it was evident an agreement to manufacture controlled substances inhered in the circumstances. See id. One person knowingly permitted another to produce copious quantities of those substances on premises the person occupied and controlled. Id. A fact finder was permitted to draw these inferences.

         Here, a rational fact finder could have inferred a tacit agreement between Kern and Grant. Even assuming Kern took no part in the actual manufacture of marijuana, there was evidence to show Grant maintained an extensive growing, drying, and selling operation throughout the home. Marijuana plants were found in the basement. A marijuana drying room existed on the main floor. Marijuana was found in jars in the bedroom Kern and Grant shared. Kern's daughter told the DHS officer a week after the search that she was well aware of Grant's narcotic use and sales. She similarly informed the DHS officer that Kern was also aware the marijuana was sold.

         Accordingly, we conclude the extensive presence of a marijuana growing operation throughout the home and the obvious knowledge of the operation constituted substantial evidence upon which a rational fact finder could infer an agreement between the two occupants of the home wherein one occupant would promote or facilitate the other in the manufacture of a controlled substance by allowing the operation to take place in the residence. The operation was so extensive that Kern literally lived with the manufacturing process. Additionally, Grant needed cover to operate the illegal enterprise, and Kern provided that cover by permitting the residence to be used to manufacture marijuana. Our law only requires the existence of a tacit understanding to support a conspiracy, and this evidence was sufficient to infer such an understanding. We stress that mere knowledge by an owner or renter of a premise that a controlled substance is manufactured on ...

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