Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. Schroeder, Judge.
Defendant appeals his conviction for possession of a controlled substance with intent to deliver, alleging an illegal investigatory stop and insufficient evidence of constructive possession.
Joseph R. Lapointe, Mason City, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Carlyle D. Dalen, County Attorney, and Steven Tynan, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Michael Jensen appeals his conviction for possession of a controlled substance with intent to deliver. He alleges law enforcement illegally stopped the car in which he was a passenger and the State did not prove he possessed the nearly 900 grams of marijuana found in the trunk. Because the officer had probable cause to stop the car based on a violation of Iowa Code section 321.37(3) (2011), we conclude the district court properly denied the motion to suppress. We also find sufficient evidence to establish Jensen's constructive possession of the marijuana. Accordingly, we affirm his conviction.
I. Background Facts and Proceedings
Just after midnight on August 30, 2012, Cerro Gordo County Sheriff's Deputy Chris Flatness was on patrol on Interstate 35 when he spotted a blue Saturn with a frame over its rear registration plate. The frame blocked the state name from his view. Deputy Flatness pulled into traffic, followed the vehicle, and initiated a stop. It was not until the deputy approached the car on foot that he could see "Wisconsin" written on the plate.
Deputy Flatness approached the passenger side of the car and encountered Michael Jensen. From the passenger window, the deputy smelled an odor of air fresheners so strong "it almost took [his] breath away." He noticed a large air freshener in the back seat and several air fresheners hanging from the steering column, as well as an odor absorber on the passenger floorboard. Deputy Flatness asked the driver, Ryan Lee, to sit in the front seat of the patrol car. Deputy Flatness discovered the vehicle belonged to Jensen's girlfriend. He also learned both Jensen and Lee were from Wisconsin. As the deputy wrote the warning for the registration plate violation, he spoke to Lee. Lee said he and Jensen were returning home from Colorado after visiting "a buddy who had just moved out there." The deputy noted Lee seemed nervous.
Deputy Flatness next spoke to Jensen, who said he and Lee were driving home after "seeing a buddy that had lived out in Colorado for about four years or so." The deputy noted Jenson stared straight ahead and declined to make eye contact during their conversation. Deputy Flatness returned to his squad car and told Lee "he was good to go." The deputy then asked Lee if he was "responsible for whatever belonged to him in the vehicle, " and Lee responded affirmatively. Deputy Flatness posed the same question to Jensen, and Jensen replied "he was responsible for what belonged to him."
Deputy Flatness asked Lee for consent to search the car, but Lee refused. He then told Lee he was going to call for a dog sniff of the car. Lee said that was "okay." Clear Lake Police Officer Cory Gute arrived with his police canine, Ranger, ten minutes later. According to Officer Gute, Ranger alerted to the presence of narcotics in the vehicle. Deputy Flatness told Lee and Jensen the dog "did indicate" and asked them if there was anything he needed to know; both said "no."
The officers searched the vehicle. In the center console they found a pill bottle containing a green leafy substance, a grinder, and a glass marijuana pipe. They suspected the substance to be marijuana. As Deputy Flatness searched the vehicle, he smelled a strong odor of raw marijuana coming from the back seat or trunk area. He recalled: "[T]he odor was so strong that it made my eyes water and it made my nose run." He searched the trunk and found a red beer cooler. He then opened up the cooler and discovered three freezer bags of suspected marijuana, as well as $14, 500 in cash. Another box in the trunk contained several more freezer bags of suspected marijuana. All told, the officers discovered close to 900 grams of marijuana.
The State charged Jensen with possession with intent to deliver less than fifty kilograms of marijuana by trial information filed September 8, 2011. Jensen filed a motion to suppress evidence on October 31, 2011, alleging the stop and search of the car violated his rights under the Fourth Amendment and article I, section 8 of the Iowa Constitution. The court held a suppression hearing on January 18, 2012. Deputy Flatness and Officer Gute testified regarding the stop and search. The defense did not present evidence, but ...