from the Iowa District Court for Black Hawk County, George L.
defendant appeals his convictions following a jury trial on
drug offenses, arguing among other things that the results of
a search performed under a federal search warrant should have
A. Cmelik of David A. Cmelik Law PLC, Hiawatha, for
J. Miller, Attorney General, Genevieve Reinkoester, Assistant
Attorney General, Brian Williams, County Attorney, and Brad
Walz, Assistant County Attorney, for appellee.
agents intercepted a package containing a hidden cache of
methamphetamine as it entered this country from Mexico. A
federal agent then decided to make a controlled delivery of
the package to its intended recipient in Waterloo, Iowa. He
obtained from a federal magistrate judge a federal
"anticipatory" search warrant authorizing a search
to be conducted once the package reached its intended
assistance from local law enforcement, federal agents
proceeded with the controlled delivery. The recipient of the
package was detained and federal agents searched his
apartment. Ultimately, the federal government decided to turn
the case over to Iowa for prosecution, and the recipient of
the package was convicted in the Black Hawk County District
Court of possession of methamphetamine with intent to deliver
and drug stamp violations. See Iowa Code §
124.401(1)(b)(7); id. § 453B.12
defendant now appeals, arguing among other things that
Iowa's search warrant statutes do not authorize
anticipatory warrants. We agree, but hold that where the
federal government conducts a search pursuant to a valid
federal search warrant for purposes of a federal
investigation, the mere fact that such a warrant would not
have been statutorily authorized in Iowa does not compel the
results of the search to be suppressed in the Iowa courts.
For this reason, and because we also find the defendant's
other claims of error to be without merit, we affirm the
defendant's conviction and sentence.
Background Facts and Proceedings.
15, 2014, a package shipped from Mexico and destined for
Waterloo arrived in this country at the FedEx hub in Memphis,
Tennessee. It was addressed to Jessy Robles, 1013 Mulberry
Street, Waterloo, and contained a phone number for contact
purposes with a 319 area code.
States Customs and Border Protection (CBP) officers opened
and inspected the parcel on arrival in Memphis. They found
that it contained three heavy mirrors. Inside the mirror
frames they discovered approximately one to two pounds of an
unknown white substance. Upon field testing, the substance
turned out to be methamphetamine.
officer in Memphis contacted Tyler Mower, a Homeland Security
Investigations (HSI) special agent based in Cedar Rapids. HSI
is part of the United States Department of Homeland Security
and investigates "anything that comes in or out of the
country illegally." Mower agreed to perform a controlled
delivery of the package to its intended recipient.
Accordingly, the package was forwarded by FedEx to
Mower's office in Cedar Rapids.
Agent Mower received the package, he and other HSI agents
reopened and reinspected it. The declared value of the
mirrors was $90, whereas Mower determined from FedEx that the
shipping charge alone would have been between $170 and $225.
The HSI agents confirmed the presence of the methamphetamine.
performed a records check through Waterloo police. He
determined that an individual named Jesus Angel Ramirez,
currently on parole, had the same cell phone number listed as
the contact number on the package and lived at 1013 Mulberry
Street, #2. Additionally, the records check revealed that
Ramirez used several different aliases including Jose Robles
and Jesse Ramirez.
Mower decided that Ramirez was the intended recipient of the
package and made plans to proceed with the controlled
delivery. On May 16, Mower applied for an anticipatory search
warrant with the United States District Court for the
Northern District of Iowa. The application was reviewed by a
federal magistrate judge in Cedar Rapids and approved at
approximately 10:21 a.m. The warrant was based on the
following condition precedent:
CONDITION PRECEDENT FOR ANTICIPATORY SEARCH WARRANT[ ]
. . . The search warrant will be executed only upon
satisfaction of a condition precedent described as follows:
The parcel will be delivered to 1013 Mulberry Street,
Apartment 2, Waterloo, Iowa, with delivery being completed
only when accepted by a person. The package will not be left
on the porch or outside this residence. Once delivery of the
parcel has been accepted by a person, I believe probable
cause exists to believe the items listed on Attachment B will
be located in 1013 Mulberry Street, Apartment 2, and the
condition precedent for executing the search warrant will
have been met.
obtaining the search warrant, Mower and three other HSI
agents drove from Cedar Rapids to Waterloo with the package,
which they had repacked. A postal inspector also placed a
transmitter inside the package that would alert agents once
the package had been opened. In Waterloo, the HSI agents met
with members of the Tri-County Drug Enforcement Task Force, a
group of state law enforcement officials, to assist with the
controlled delivery. These members included Jason Feaker, the
lieutenant in the Waterloo police department whom Mower had
spoken with when performing the records check the previous
determined that Nicholas Berry, a Waterloo police officer and
member of the task force, would pose as a FedEx delivery
person and make the actual delivery. Meanwhile, the HSI
agents and other members of the Tri-County Task Force would
afternoon, Berry walked into the apartment building and
knocked on the door of Apartment #2, the closest door to the
building's main entrance. A man opened the door,
indicated he was expecting the package, and confirmed to
Berry that he was Robles, later identified as the defendant,
Jesus Ramirez. Ramirez accepted the package and signed for it
as "Jesse Robles" on a waybill used by Officer
Berry. Berry then left the apartment building.
plan had been to wait for the transmitter in the package to
be triggered. Within a few minutes, though, Ramirez was
spotted exiting the apartment, walking around to the front of
the apartment, looking around, and then returning inside. A
woman was observed leaving the apartment around the same
time. Several minutes later, Ramirez again came out of the
apartment, taking a bag of trash to a dumpster. Shortly after
that, Ramirez departed from the apartment a third time and
began walking toward downtown Waterloo.
agents followed Ramirez and detained him. Ramirez was later
placed under arrest and Mirandized. When questioned, Ramirez
denied knowing anything about the package even when
confronted with the facts that he had signed for it and his
name and phone number were listed on the package.
Ramirez had been detained, Mower decided to execute the
warrant. Task Force members had been assigned to do the
initial entry. They approached the apartment, announced their
presence, and forced their way in. They found the apartment
empty and the package sitting on a bed, unopened. After the
Task Force members had secured the residence, HSI agents
conducted the search pursuant to the warrant. HSI agents
seized various documents connecting Jose Robles and Jesus
Ramirez to the 1013 Mulberry, Apartment #2 residence. One of
the documents also showed Ramirez as having the same 319 area
code number contained on the FedEx package.
than the package itself, HSI took the items seized pursuant
to the warrant into its custody. HSI allowed the package and
its contents to be turned over to the Task Force so testing
could be performed by the Iowa Division of Criminal
Investigation. Almost one kilogram of methamphetamine was
eventually recovered from inside the mirror frames.
point, the United States Attorney's Office decided to let
the State of Iowa prosecute the case. On May 27, a trial
information was filed in the Black Hawk County District Court
charging Ramirez with possession of methamphetamine with
intent to deliver, a class "B" felony in violation
of Iowa Code section 124.401(1)(b)(7), and drug tax
stamp violation, a class "D" felony in violation of
Iowa Code section 453B.12. Because Ramirez had prior
convictions for possession with intent to deliver
methamphetamine and marijuana, his sentence on the
methamphetamine charge was subject to enhancement.
See Iowa Code § 124.411(1). Ramirez pled not
guilty and filed a written arraignment on June 6.
filed a motion to suppress, claiming the initial search of
the package and the validity and execution of the search
warrant violated his rights under the United States and Iowa
Constitutions as well as Iowa Code chapter 808. Following an evidentiary hearing, the
district court denied the motion to suppress. After a change
of counsel, Ramirez then filed a motion for reconsideration
of the suppression ruling. In that motion, he claimed that an
anticipatory warrant, like the one issued to Agent Mower in
this case, was invalid under Iowa Code chapter 808 and
therefore suppression was required. See State v.
Gillespie, 530 N.W.2d 446, 449 (Iowa 1995). The court
Defendant's Application for Reconsideration is premised
upon case law stating quite clearly that Iowa does not permit
anticipatory search warrants. The search warrant herein was
issued to a federal law enforcement agent by a federal judge
and executed by federal agents with the assistance of Iowa
law enforcement. None of the cases cited by the defense would
mean, to the court's observation, that Iowa's
prohibition on anticipatory search warrants would apply in
22, 2015, Ramirez waived in writing his right to a speedy
trial within one year of arraignment. See Iowa R.
Crim. P. 2.33(2)(c).
case proceeded to trial in September. During Berry's
testimony, the State offered as an exhibit the audio
recording of the conversation that had occurred between Berry
and Ramirez during the controlled delivery. Ramirez objected
that portions of the recording had been deleted or altered, a
contention disputed by the State. The court overruled the
objection and admitted the recording. The recording was then
played for the jury.
conclusion of Berry's testimony, Ramirez clarified his
objection outside the presence of the jury:
The copy of the audiotape that I had received contained a lot
of what was on that recording. However, the recording that I
received from the police department, although it says
it's a certified copy, does not have those last 15 or 20
seconds of the conversation between Investigator Berry and
other members of the people that were conducting surveillance
with regards to the property.
Specifically, when one of the persons on the radio indicated
they saw a woman in white leaving the apartment, that was not
included in the copy of the audiotape that we had received.
other words, Ramirez's concern was that the version
played for the jury included an additional fifteen or twenty
seconds at the end that had not appeared on the version that
Ramirez received in discovery- although this material related
to subsequent surveillance discussion among the law
enforcement agents, not to the actual controlled delivery.
the court agreed Ramirez should have been provided the full
audio recording, it found that nothing in the additional
material at the end would either exonerate or inculpate
Ramirez, nor would its contents have come as a surprise to
him. The court emphasized that Ramirez had received a
complete copy of the actual conversation between himself and
Officer Berry, which it described as "the critical
in the trial, a CD of photographs taken by HSI agent Stephen
Allen was admitted into evidence without objection. The
photographs depicted the package both as it arrived to the
HSI office in Cedar Rapids and later as it appeared in the
apartment when the search warrant was executed.
Allen finished testifying, Ramirez's counsel informed the
court that out of the approximately twenty or twenty-five
photographs contained on the disk, and shown to the jury,
Ramirez had received only three of them on the zip file
emailed to his counsel as part of the prosecution's
pretrial disclosures. Ramirez claimed that his inability to
review the remaining photographs before trial had put him at
a disadvantage and moved for a mistrial. The trial court
declined to declare a mistrial, again similarly acknowledging
that while Ramirez should have received all the photographs,
he could not demonstrate any resulting
close of the State's evidence, Ramirez moved for judgment
of acquittal. The court denied the motion. The case was
submitted to the jury, which found Ramirez guilty on both
the trial, Ramirez filed a motion in arrest of judgment and a
motion for a new trial. The trial court denied the motions
prior to sentencing. The court imposed a fifty-year
indeterminate sentence on the possession with intent to
deliver methamphetamine offense and a five-year indeterminate
sentence on the drug tax stamp violation, with the sentences
to run consecutive to one another.
appealed, raising four issues: (1) whether his trial counsel
had been ineffective for failing to move to dismiss the trial
information following a one-year speedy trial information,
(2) whether the evidence was sufficient to sustain his
conviction, (3) whether his motion to suppress should have
been granted because Iowa law does not authorize anticipatory
warrants, and (4) whether the district ...