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State v. Fisher

Court of Appeals of Iowa

January 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
KOHL M. FISHER, Defendant-Appellant.

         Appeal from the Iowa District Court for Boone County, Timothy J. Finn, Judge.

         A defendant appeals the district court's denial of his motion to suppress evidence discovered during the search of his vehicle. AFFIRMED.

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

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Tabor and Bower, JJ.

          VOGEL, Presiding Judge.

         Following a jury trial, Kohl Fisher appeals his conviction for conspiracy to manufacture, deliver, or possess with intent to deliver methamphetamine and possession with intent to deliver, in violation of Iowa Code sections 124.401(1)(c)(6) and 124.413 (2016). On appeal, he asserts the district court should have granted his motion to suppress evidence because the search of his vehicle was conducted at the request of his parole officer and violated his constitutional rights. Because we conclude the search was legally conducted under the automobile exception to the warrant requirement, we affirm the district court's denial of Fisher's motion to suppress and affirm his conviction and sentence.

         I. Background Facts and Proceedings.

         When he was released from prison in February 2016, Fisher signed a standard parole agreement that provided, in part: "I will submit my person, property, place of residence, vehicle, and personal effects to search at any time, with or without a search warrant, warrant of arrest, or reasonable cause by my parole officer or law enforcement officer." Probation Officer Steve Naeve was assigned to supervise Fisher's parole in April 2016. As part of his parole, Fisher was required to wear a GPS monitoring bracelet. Officer Naeve received notification from Boone police on April 24 that Fisher was potentially suicidal. Officer Naeve met with Fisher that day, and Fisher admitted to having recently used methamphetamine.

         In the following weeks, Officer Naeve consulted with Boone Police Investigator Cory Rose. Investigator Rose and Officer Naeve had been told by a trusted confidential informant that Fisher and Fisher's wife were distributing methamphetamine in Boone and were getting supplies of methamphetamine from an individual in Jefferson. Officer Naeve monitored Fisher's movements through the GPS bracelet and noted he was frequenting at least two locations in Boone that Officer Naeve would describe as "drug houses"-Officer Naeve was familiar with people that frequented the locations and knew those individuals were currently using controlled substances. Fisher was also noted to frequent locations in nearby Jefferson, which local Greene County law enforcement informed Officer Naeve were locations where methamphetamine was being dealt.

         On May 9, 2016, Investigator Rose contacted Officer Naeve to inform him that Investigator Rose, while off duty, observed Fisher driving towards Jefferson. Fisher's vehicle stopped at a residence in Jefferson where Fisher had frequented in the weeks leading up to May 9. Investigator Rose observed Fisher and Fisher's wife leave the residence after a short amount of time, "maybe about a half hour." Fisher then opened the hood to his car, reached underneath the hood, pulled something out of his pocket, placed it under the hood, closed the hood, walked around the car inspecting it, and then got into the car and drove away, heading back towards Boone.

         Investigator Rose followed Fisher, and Officer Naeve monitored Fisher's bracelet as Fisher traveled from Jefferson back towards Boone. Officer Naeve advised Boone patrol officers that if they encountered Fisher, Officer Naeve wanted to speak with him. Boone Police Officer Josh Olsen heard Officer Naeve's advisement that Fisher was headed to Boone and that his vehicle likely contained drugs. Officer Olsen observed Fisher speeding and pulled him over. Officer Olsen contacted Officer Naeve, notifying him that Fisher had been stopped, and Officer Naeve quickly arrived at the scene as he was only one block away when he was contacted by Officer Olsen. After issuing him a warning for speeding, Officer Olsen advised Fisher that Officer Naeve was present and wanted to speak with him, and he told Fisher he was not free to go.

         Officer Naeve asked Fisher what was in the car-inferring knowledge of the presence of drugs-and Fisher denied anything was present. Officer Naeve asked to search Fisher's car, and Fisher responded that he knew he needed to consent for his parole. Officer Naeve did not tell Fisher he had the right to refuse the search. Investigator Rose, who had also arrived on scene, conducted the search and quickly located a magnetic hide-a-key box in the hood compartment of Fisher's car, in the same location Investigator Rose had seen Fisher reach when Fisher was at the house in Jefferson. Inside the box were two small baggies containing what would later be determined to be methamphetamine.

         Fisher denied knowledge of the methamphetamine and his wife, who was a passenger in the car, claimed ownership of it. A search of Fisher's wife's purse revealed other evidence of drug distribution, including three cell phones and a notebook with ...


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