Appeal from the Iowa District Court for Plymouth County, James D. Scott (suppression) and Jeffrey A. Neary (trial), Judges.
Justin Dean Short appeals from his convictions of burglary and theft.
Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, and Darin J. Raymond, County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ.
Justin Short, convicted of burglary and theft, appeals claiming the court erred in denying his pretrial motion to suppress. To the extent trial counsel failed to preserve error on his argument on Iowa constitutional grounds, he claims counsel was ineffective. We affirm.
I. Background Facts and Proceedings
On the morning of May 18, 2011, a rural Plymouth County home was burglarized. Stolen items included two flat-screen televisions, jewelry, and a $100 gift card to Minerva's restaurant. The gift card was soon used at Minerva's, and the diner signed the receipt, "Justin Short." The waitress and manager identified a photo of defendant Justin Short as the person who used the card. Short was on probation, and his probation officer was contacted to get his most recent address. The probation officer accompanied deputies to a home belonging to Short's mother. His mother told the officers Short had been living with his girlfriend, Leya Lorenzen, and she hadn't seen him for a couple of weeks. Further investigation revealed Lorenzen's car was parked at a house on Jones Street in Sioux City. The officers were granted a search warrant, but when they arrived at the house, a local police officer assisting in the search reported he knew the home's resident was not Lorenzen. The resident did not know Lorenzen or Short, but told the officers there was an apartment next door and "people are coming and going from there all the time." When contacted, the owner of the apartment building informed the deputies Lorenzen had rented an apartment.
Deputy Craig Bartolozzi called the judge who had issued the search warrant and asked whether they should return to Le Mars to get another search warrant. The judge told Deputy Bartolozzi to change the address on the search warrant and execute it. The deputy crossed out the address of the house on the search warrant and wrote the address of the apartment. One of the deputies was also aware Short had signed a probation agreement "where he was subject to search." Short was on probation for theft. Short had signed an agreement outlining several conditions of probation. Condition number four states:
I will submit my person, property, place of residence, vehicle, and personal effects to search 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. Items found which are in violation of supervision or the law may be seized. I further understand that a refusal to consent to a search constitutes a violation of this agreement.
When the deputies executed the amended search warrant, Short, Lorenzen, and some children were present in the apartment. The search found the two flat-screen televisions and two jewelry boxes taken in the burglary, and Short admitted he had stolen them from the house. They also found the stolen Minerva's gift card and a receipt in Short's wallet. Short admitted he pawned some of the jewelry and took Lorenzen to eat at Minerva's. Some of the stolen jewelry was recovered from the pawn shop.
A joint trial information charged Short and Lorenzen with burglary in the third degree and theft in the second degree. Short was also charged as a habitual offender on both of his charges. Short filed a motion to suppress, questioning the validity of the search warrant. The district court held a hearing on the motion to suppress on March 20, 2012, and ultimately denied the motion. In a thorough analysis of the issuance of the warrant and its alteration, the trial court concluded the telephonic request to alter the search warrant was not a sufficient application for a search warrant, the telephonic authorization to search the premises at the other address did not amount to a valid search warrant, and the search pursuant to the telephonic authorization was improper. The court also found no exigent circumstances to permit the search. However, it denied the motion to suppress based on the consent given by Short in his probation agreement.
A jury convicted Short of burglary in the third degree and theft in the second degree. Short acknowledged two prior felony convictions for the purpose of the habitual offender enhancement. The court sentenced Short to an indeterminate term of imprisonment not to exceed fifteen years with a three-year mandatory minimum on both ...