from the Iowa District Court for Scott County, Mark R. Lawson
(trial), Judge, and Mark R. Fowler (pre-trial), District
appeals his convictions for possession of a controlled
substance, marijuana, and operating without registration.
A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
Tennant was convicted of possession of marijuana, in
violation of Iowa Code section 124.401(5) (2016), and
operating without registration or without certificate of
title, in violation of Iowa Code section 321.98(1)(a), a
simple misdemeanor. The defendant filed notices of appeal
following the entry of judgment for both convictions. The
supreme court treated Tennant's notice of appeal from the
misdemeanor conviction as an application for discretionary
review, granted the application, and ordered the cases be
consolidated into this appeal. On appeal, Tennant maintains
the district court violated his right to speedy trial and
erred in denying his motion to suppress evidence. In a pro
per brief, Tennant raises several additional claims.
case arose out of what should have been a fairly routine
police-citizen encounter. Police officers responded to a
report that a large group of motorcyclists were driving
dangerously throughout the city and that one of the
motorcyclists may have assaulted a motorist. The officers
located the motorcyclists, many of whom were in costumes, at
a local gas station. One officer observed a man, now known to
be Tennant, dressed in a Super Mario costume, putting gas
into a motorcycle. The motorcycle did not have a license
plate. The officer approached Tennant to inquire further.
Tennant stated he did not talk to police and ignored the
officer. Tennant refused to identify himself, refused to
answer questions regarding the motorcycle, and refused to
explain the lack of license plate or registration for the
motorcycle. The officer arrested Tennant for the registration
plate violation and for harassment for refusing to provide
information regarding his identity. At the police station,
the officer searched Tennant incident to arrest and
discovered a baggie of marijuana in Tennant's pant
pocket. Tennant was ultimately charged and convicted for
possession of marijuana and operating without registration.
first claim of error, Tennant contends the district court
erred in overruling his motion to dismiss based on an alleged
violation of Tennant's right to speedy trial. Iowa Rule
of Criminal Procedure 2.33(2)(b) provides, "If a
defendant indicted for a public offense has not waived the
defendant's right to a speedy trial the defendant must be
brought to trial within 90 days after indictment is found or
the court must order the indictment to be dismissed unless
good cause to the contrary be shown." Pursuant to the
rule and case law, "a criminal charge must be dismissed
if the trial does not commence within ninety days from the
filing of the charging instrument unless the State proves (1)
defendant's waiver of speedy trial, (2) delay
attributable to the defendant, or (3) 'good cause'
for the delay.'" State v. Winters, 690
N.W.2d 903, 908 (Iowa 2005). The good-cause inquiry focuses
on "only one factor: the reason for the delay."
Id. Surrounding circumstances, including the length
of the delay, whether the defendant asserted his or her right
to a speedy trial, and whether prejudice resulted from the
delay are relevant "only to the extent they relate
directly to the sufficiency of the reason itself."
Id. We review the district court's ruling for an
abuse of discretion. See Winters, 690 N.W.2d at 907.
However, the discretion afforded the district court in this
circumstance is tightly circumscribed. See id.
"The discretion to avoid dismissal in a criminal case is
limited to the exceptional circumstance where the State
carries its burden of showing good cause for the delay."
Id. at 907-08.
case, Tennant was charged by trial information with
possession of marijuana on November 16, 2016. Tennant pleaded
not guilty and demanded speedy trial. Tennant's trial was
scheduled to commence on December 12, 2016. After Tennant
filed a pro se motion to suppress evidence, the district
court rescheduled trial for February 6, 2017. At the pretrial
conference held on February 2, the State requested a
continuance because the State's critical witness, the
arresting officer, had a prescheduled vacation. The State
sought a trial date one day after the officer's return.
This requested trial date, February 27, was thirteen days
beyond the speedy-trial deadline. The district court granted
the motion to continue over Tennant's objection. The
district court scheduled the trial for March due to
Tennant's unavailability. The district court concluded
the unavailability of the essential witness was sufficient
"cause" within the meaning of the rule to grant the
State's motion to continue over Tennant's objection.
district court did not abuse its discretion in denying
Tennant's motion to dismiss. Here, the unavailable
witness was central to the State's case. The witness was
unavailable due to a scheduled vacation and not because of
any action attributable to the State. There is no evidence
the State waited to disclose this information until the last
minute or to prejudice the defendant. The defendant suffered
no actual prejudice: the delay was short, only a few weeks
beyond the speedy-trial deadline; and the defendant was at
liberty. In similar circumstances, the supreme court has
recognized the unavailability of a witness constitutes good
cause within the meaning of the rule where there is only a
short delay in trial. See State v. McNeal, 897
N.W.2d 697, 704-05 (Iowa 2017) (finding good cause where key
expert witness was unavailable); State v. Petersen,
288 N.W.2d 332, 335 (Iowa 1980) (holding absence of witness
can be good cause especially when the delay is short and the
defendant is not prejudiced). Other states have reached the
same conclusion. See, e.g., Otte v. State, 967
N.E.2d 540, 546 (Ind.Ct.App. 2012) ("The absence of a
key witness through no fault of the State is good cause for
extending the time period requirements. Such absence may be
due to a long-planned vacation."); State v.
Workman, 2008 WL 2020370, at *2 (Minn.Ct.App. May 13,
2008) ("Normally, the unavailability of a witness
constitutes good cause for delay."); Jackson v.
State, 924 So.2d 531, 544 (Miss. Ct. App. 2005)
("In the present case, the State has shown good cause
for requesting a continuance because Love was an essential
witness, and because Love's failure to appear was not due
to any action by the State."); Commonwealth v.
Weaver, 525 A.2d 785, 788 (Pa. Super. Ct. 1987)
("[W]hen a witness becomes unavailable towards the end
of the Rule 1100 run date-due to illness, vacation, or other
reason not within the Commonwealth's control, the
Commonwealth is prevented from commencing the trial within
the requisite period despite due diligence, and an extension
of time is warranted."); State v. Kindell, 326
P.3d 876, 882 (Wash.Ct.App. 2014) ("Scheduling conflicts
such as a preplanned vacation and the unavailability of
witnesses constitute valid grounds to continue a trial date
under CrR 3.3(f)(2)."); State v. Grilley, 840
P.2d 903, 904-05 (Wash.Ct.App. 1992) ("The right to a
speedy trial is a significant right. However, if conflicts
with previously scheduled vacations of investigating officers
could never be considered as a proper basis for a relatively
brief continuance beyond the speedy trial period, we doubt
that some officer witnesses would ever be able to take
vacations."). The district court did not abuse its
discretion in denying the motion to dismiss.
pro per brief, Tennant argues the district court erred in
denying his motion to suppress evidence on the ground the
arrest that led to the search of Tennant's person was
invalid. Our review of the denial of a motion to suppress
evidence is de novo. See State v. Pals, 805 N.W.2d
767, 771 (Iowa 2011).
Fourth Amendment to the United States Constitution and
article I, section 8 of the Iowa Constitution protect the
right to be free from unreasonable searches and seizures. The
touchstone of any search-and-seizure claim is reasonableness
under the circumstances presented. See Pennsylvania v.
Mimms, 434 U.S. 106, 108-09 (1977) ("The touchstone
of our analysis under the Fourth Amendment is always the
reasonableness in all circumstances of the particular
governmental invasion of a citizen's personal
security." (citation omitted)); State v. Kreps,
650 N.W.2d 636, 641 (Iowa 2002) ("The Fourth Amendment
imposes a general reasonableness standard upon all searches
and seizures."). A search incident to arrest is
reasonable within the meaning of the Fourth Amendment and
article I, section 8 of the Iowa Constitution. See State
v. Peterson, 515 N.W.2d 23, 25 (Iowa 1994) ("[W]e
hold that in the case of a lawful custodial arrest a full
search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a
'reasonable' search under that Amendment."
(quoting United States v. Robinson, 414 U.S. 218,
235 (1973))). A search incident to arrest "allows a
police officer 'to search a lawfully arrested
individual's person and the immediately surrounding area
without a warrant.'" State v. Christopher,
757 N.W.2d 247, 249 (Iowa 2008).
Code section 804.7(3) authorizes a peace officer to make an
arrest for a public offense committed in the officer's
presence and allows "a peace officer to make an arrest
without a warrant [w]here the peace officer has reasonable
ground for believing that an indictable public offense has
been committed and has reasonable ground for believing that
the person to be arrested has committed it. The
'reasonable ground for belief' standard within
section 804.7(3) is tantamount to probable cause."
See State v. Freeman, 705 N.W.2d 293, 298 (Iowa
2005). "Probable cause is present if the totality of the
circumstances as viewed by a reasonable ...