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State v. McNeal

Supreme Court of Iowa

June 19, 2015

STATE OF IOWA, Plaintiff-Appellee,
v.
CLIFFORD LYNN MCNEAL, Defendant-Appellant

Page 92

On further review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson (suppression) and Lucy J. Gamon (trial and sentencing), Judges. The State seeks further review of a court of appeals decision finding the district court erred in denying defendant's motion to suppress and reversing defendant's conviction for theft in the first degree.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

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

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney General, Lisa Moressi, County Attorney, and Andrew J. Ritland, Assistant County Attorney, for appellee.

OPINION

Page 93

ZAGER, Justice.

In October 2011, police began to suspect Clifford McNeal received stolen property from a burglary that occurred in Ottumwa, Iowa. Thereafter, they received an anonymous tip from a concerned citizen informing them that McNeal had moved a trailer from Ottumwa to a rural area in Wapello County, Iowa. After police confirmed the location of the trailer and that it belonged to a company McNeal owned, they obtained a search warrant for the trailer. Pursuant to the search warrant, they searched the trailer and discovered the stolen property. The State subsequently charged McNeal with numerous offenses. McNeal filed a motion to suppress, claiming the judge who issued the search warrant failed to make a credibility determination

Page 94

as to each informant referenced in the application for search warrant and asserting there was no probable cause to support the search warrant. McNeal requested that the district court suppress the evidence obtained from the trailer. The district court denied the motion to suppress, and the case proceeded to a jury trial. The jury found McNeal guilty of theft in the first degree. See Iowa Code § § 714.1(4), .2(1) (2011).

McNeal appealed, claiming the district court erred in denying his motion to suppress. He asserted the search of the trailer violated his rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. McNeal also raised numerous claims of ineffective assistance of trial counsel. We transferred the case to the court of appeals. The court of appeals concluded there was no probable cause to support the search warrant, reversed the judgment of the district court, and remanded the case for a new trial. The State applied for further review, which we granted.

For the reasons set forth below, we conclude the issuing judge had a substantial basis for concluding there was probable cause to support the search warrant and the district court properly denied McNeal's motion to suppress. Additionally, we conclude the record before us is inadequate to reach the merits of McNeal's ineffective-assistance-of-counsel claims. We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

On June 1, 2011, the Ottumwa Police Department received a report from a construction-site manager that a construction site located near the Ottumwa Regional Health Center in Ottumwa had been burglarized. The construction-site manager reported that

sometime during the overnight hours . . . somebody had broken into the new buildings and several of the tool trailers . . . on the job site. Three of the trailers had . . . their locks cut off of them. Two of the trailers had numerous tools removed from within while the third trailer . . . didn't have anything missing from it.

A significant number of large, concrete-construction tools and equipment were stolen from the site.

Officer Steven Harris was assigned to investigate the construction-site burglary. During his investigation, two anonymous persons informed him that John Wey and Mike Jones were " involved in the burglary or at least had first-hand knowledge of the burglary." Officer Harris subsequently conducted a background check on both Wey and Jones and discovered they each had numerous criminal convictions, including several for theft and burglary. Although this information suggested Wey and Jones might have been involved in the construction-site burglary, Officer Harris was unable to confirm their involvement at that time.

On July 2 at 3:40 a.m., Lisa Steck called the Ottumwa Police Department in a panic. She reported that " a man had been trying to break into her house and had just sped off eastbound out of her driveway." Lisa and her husband Ken Steck later reported that a laptop, a truck, and numerous tools were stolen from the residence. Officer Harris was also assigned to investigate the Steck burglary.

On July 6, Officer Harris spoke with the Stecks about the July 2 incident. Lisa described the man who had tried to break into the residence as " over six feet tall,

Page 95

thick, and in his late thirties or older." Later that day, a farmer notified the Ottumwa Police Department he had discovered a truck parked behind his barn in Wapello County. Several officers went to investigate and confirmed the truck belonged to the Stecks. The bed of the truck contained the tools stolen from the Steck residence. Thereafter, officers returned the truck to the Stecks. While the officers assisted the Stecks in unloading the stolen tools from the truck, Ken observed two bags in the bed of the truck that were not his: " a U.S. Army bag" and " a blue reusable Walmart bag made of a heavy material."

On July 14, Officer Harris assisted another officer in executing a search warrant at Wey's residence. This search involved animal charges unrelated to the construction-site and Steck burglaries. During the search, Officer Harris " observed a standard issue green U.S. Army bag . . . and a blue re-useable Walmart bag made of a heavy material." These bags were similar in appearance to the bags from the Stecks' truck. That same day, Officer Harris also confirmed Wey's physical appearance was consistent with Lisa's description of the man who had burglarized the Steck residence.

Police arrested Wey on the animal charges that same day. During the booking process, Wey provided police with a personal cell phone number. In an effort to link Wey to the Steck burglary, Officer Harris obtained user information, call logs, and text logs associated with the cell phone number. These records showed the cell phone was registered to Wey's wife, Lynn Wey. The records further showed Lynn's cell phone sent numerous phone calls and text messages to another cell phone registered to Wey around 3:40 a.m. on July 2--the same time Lisa called the Ottumwa Police Department to report the Steck burglary. Further, a series of texts sent between the Weys' phones between 3:44 and 3:50 a.m. on July 2 were a " rough summation of [outgoing police] radio traffic" at that same time.

Based on this information, Officer Harris believed both Wey and Lynn played a role in the Steck burglary. Officer Harris further believed Wey's involvement in the Steck burglary corroborated Wey's purported involvement in the construction-site burglary. Accordingly, Officer Harris obtained call and text logs for Wey's cell phone from May 31 through June 1--the time the construction-site burglary occurred. These records revealed Wey's cell phone sent and received numerous calls and text messages during this period. Two numbers comprised a large portion of the called or texted numbers; both of them were registered to David Downen of Downen Construction. Officer Harris further found that shortly after the construction-site burglary, Downen's cell phones received suspicious text messages from Wey stating that Wey " had new 'goodies' and tools and wanted to know if [Downen] wanted some." Officer Harris also conducted a background check on Downen and discovered he had numerous criminal convictions, including several for theft and robbery.

Based on this information, Officer Harris set up a meeting with Downen for September 14. At the meeting, Officer Harris presented Downen with the information he had discovered through his investigation. Downen admitted Jones and Wey had sold him stolen tools and equipment in the past. He also informed Officer Harris that " [Jones] and [Wey] often broke into buildings and stole tools and equipment to sell."

On September 20, police arrested Jones on a warrant for a separate incident in which police caught Jones and Wey stealing

Page 96

a concrete saw. Based on the information provided by Downen, Officer Harris contacted the Wapello County Attorney and arranged to speak with Jones about the construction-site burglary. Jones received a cooperation agreement for speaking with Officer Harris.

On October 3, Officer Harris, along with another officer, met with Jones. Jones informed them that he and Wey would frequently " break[] into different buildings to steal property." Jones admitted he and Wey were responsible for the break-in at the construction site. He also stated there were " personal identifiers on some of the equipment from the site that contained the name 'Brad.'" This was consistent with information the foreman at the construction site had provided Officer Harris. Jones also stated that he and Wey " took the majority of the load of stolen property from the . . . construction site . . . to Cliff McNeal where [McNeal] bought the stolen property for a fraction of what the property was actually worth." Jones also told the officers he and Wey " would often break into places and sell the stolen property to [McNeal]." Jones had " worked in construction for a long time and he knew construction equipment, so that is what he usually stole."

According to Jones, " [McNeal] knew the property was stolen because [Wey] and he often told [McNeal] where they stole the property from." Jones and Wey " usually me[t] . . . McNeal at his house . . . just south of the intersection of Finley and Moore Streets" in Ottumwa and would then " drive to a second location on Chester St[reet] near the intersection of Chester and Milner Streets." They would then " off-load large loads of stolen property into a secure structure at the [second] property." Independent investigation later confirmed that McNeal owned the property at the intersection of Finley and Moore Streets, and that McNeal's wife owned the property on Chester Street. Jones further stated that " the [stolen] property was no longer at the residence on Chester because [Wey], [McNeal], and [Jones] all knew that the police were on to them," and " [McNeal] told [him] that he had moved all of the stolen property a short time before [Jones] was arrested" on September 20. Finally, Jones informed the officers that " [McNeal] did not sell the equipment to other people, but rather kept the tools and equipment to work on his properties or to use with his company."

Also on October 3, Sergeant Jason Bell of the Ottumwa Police Department informed Officer Harris that he had " received an anonymous tip from a concerned citizen that . . . McNeal had moved an enclosed trailer that was bluish-green in color out of Ottumwa and further out into Wapello County." The concerned citizen stated that " the trailer had an attached ladder that allowed access to the roof." The concerned citizen further stated that " the trailer was on Copperhead R[oad] west of U.S. Highway 63," such that " if you were traveling eastbound on ...


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