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State v. Kemp

Court of Appeals of Iowa

April 19, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MARK L. KEMP, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.

         The defendant appeals his convictions for possession with intent to deliver crack cocaine, interference with official acts causing injury, and possession of marijuana. AFFIRMED.

          Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         Mark Leon Kemp appeals his convictions after a trial to the bench for possession with intent to deliver crack cocaine, interference with official acts causing injury, [1] and possession of marijuana. Specifically, he argues the evidence used by the State to secure his convictions was obtained without reasonable suspicion, in violation of article 1, section 8 of the Iowa Constitution and the Fourth Amendment of the U.S. Constitution.[2] He also argues his counsel was ineffective. We affirm.

         I. Background Facts and Proceedings.

         On February 27, 2015, Kemp was charged by trial information with the following: one count of possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) (2015); one count of failure to possess a tax stamp, in violation of sections 453B.3 and 453B.12; one count of interference with official acts causing injury, in violation of section 719.1; and, one count of possession of a controlled substance, in violation of section 124.401.

         On March 15, 2015, Kemp waived formal arraignment and pled not guilty to the above charges. On May 7, 2015, Kemp filed a motion to suppress alleging the evidence supporting the three drug counts was discovered in an illegal pat-down search. Both parties filed written briefs, and a suppression hearing was held on July 7, 2015.

         At the hearing, Officers Morgan and Becker testified about their encounter with Kemp. On or about January 23, 2015, Becker received an anonymous tip about potential drug-trafficking activity involving a specifically described car. The tipster allegedly identified an orange Dodge Avenger, with a specific license plate number, driven by a man matching Kemp's physical description in his forties or fifties, who was engaged in activities consistent with narcotic sales. The tipster also disclosed drugs were seen in the vehicle. At 1:30 a.m. on January 24, Becker noticed an orange Dodge Avenger parked in an empty parking lot at a closed business under a "No Parking" sign. The car was located adjacent to a bar known by the police for gun and drug activity. The driver's seat was empty, and a woman was sitting alone in the passenger seat. Upon further investigation, the police verified the car's license plate number matched the information from the tipster. The district court made the following additional factual findings regarding the officers' testimony:

At the time the officers approached the vehicle the lone occupant was Rhonda Claiborne, the owner of the vehicle. Claiborne was sitting in the front passenger seat of the car at that time. Morgan, while speaking to Claiborne, noticed several parts of plastic baggies sticking out of the center console of the car, which he recognized as baggies used in the drug industry. As this conversation was occurring, defendant, Mark Kemp, approached the vehicle by Becker and inquired why the officers were there. Kemp indicated to Becker that he came to the bar in the orange Dodge.

         Becker at that time requested identification from Kemp. Kemp was unable to provide any identification. Becker also testified that Kemp fit the description of the individual given to him by the concerned citizen. Becker then conducted a pat-down search of Kemp out of a concern that he posed a threat to the officers' safety. During the pat-down search, Becker noticed that Kemp was making furtive movements consistent with an individual trying to conceal items. Becker also felt a substance in Kemp's right pocket consistent with small bundles of crack cocaine. Becker testified that he did not reach into the pocket at that time. He summoned Morgan to help detain Kemp, who then attempted to flee by jumping over the rear of the car. The officers subdued him and ultimately placed Kemp under arrest. Crack cocaine and marijuana were discovered in Kemp's right, front pocket after he was placed under arrest.

         In its September 13, 2015 order, the district court denied Kemp's motion to suppress on both the procedural ground and on the merits. First, the court denied Kemp's motion "for his failure to file the motion within 40 days of his arraignment in violation of Iowa Rule of Criminal Procedure 2.11(4) and he failed to present any grounds that would constitute good cause to excuse the late filing." Second, the court denied the motion on the merits, finding the search was constitutional under both the federal and state constitutions. A bench trial was held on the minutes of testimony, and the court found Kemp ...


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