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State v. Ramirez

Supreme Court of Iowa

May 25, 2017

STATE OF IOWA, Appellee,

         Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

         The 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 been suppressed.

          David A. Cmelik of David A. Cmelik Law PLC, Hiawatha, for appellant.

          Thomas J. Miller, Attorney General, Genevieve Reinkoester, Assistant Attorney General, Brian Williams, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.


         Federal 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 recipient.

         With 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 (2014).

         The 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.

         I. Background Facts and Proceedings.

         On May 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.

         United 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.

         A CBP 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.

         Once 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.

         Mower 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.

         Agent 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:

. . . 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.

         After 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 day.

         It was 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 perform surveillance.

         That 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.

         The 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.

         Two HSI 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.

         Once 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.

         Other 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.

         At some 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.

         Ramirez 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.[1] 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 disagreed, concluding:

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 this case.

         On May 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).

         Ramirez's 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.

         At the 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.

         In 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.

         Although 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 situation."

         Later 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.

         After 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 prejudice.[2]

         At the 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 charges.

         Following 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.

         Ramirez 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 ...

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