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State v. Reed

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JOHN WESLEY REED, Defendant-Appellant.

          Appeal from the Iowa District Court for Ida County, Edward A. Jacobson, Judge.

         A defendant appeals his convictions for possession with intent to deliver (cocaine), possession with intent to deliver (marijuana), and failure to affix a drug tax stamp.

          Mark C. Smith, State Appellate Defender, and Nan N. Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

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

          POTTERFIELD, Judge.

         John Wesley Reed appeals his convictions following a bench trial for possession with intent to deliver (cocaine), second offense, in violation of Iowa Code sections 124.401(1)(c)(2)(b) (2017) and 124.411; possession with intent to deliver (marijuana), second offense, in violation of sections 124.401(1)(d) and 124.411; and failure to affix a drug tax stamp, in violation of sections 453B.1 and 453B.12. On appeal, Reed argues the odor of burnt marijuana did not establish probable cause for a warrantless search of the trunk of the car. He also argues there is insufficient evidence to support his conviction because the State failed to prove he possessed the drugs found in the trunk.

         I. Background Facts and Proceedings.

         On February 22, 2017 at 3:30 a.m., Deputy Alex Ehlers pulled over the vehicle Reed was driving for traveling sixty-seven miles per hour in a fifty-five miles-per-hour zone. Deputy Ehlers approached the passenger side and spoke to Michael Taylor, the owner of the vehicle. Deputy Ehlers observed Taylor's bloodshot, watery eyes. Deputy Ehlers asked if there was marijuana in the car. Both Taylor and Reed denied there was marijuana in the car. Deputy Ehlers checked Reed's license, discovered Reed was driving with a suspended license, and asked Reed to step out of the vehicle. Deputy Ehlers again inquired whether there was marijuana in the car, and Reed again denied its presence. When Deputy Ehlers asked for consent to search the vehicle, Reed told him Taylor owned the car and Taylor did not want Deputy Ehlers to search it.

         Deputy Ehlers approached Taylor and asked for his license. Deputy Ehlers again asked whether there was marijuana in the car. Deputy Ehlers requested consent to search the vehicle, and Taylor replied the officer should just give Reed a ticket. Deputy Ehlers told Taylor he could smell burnt marijuana in the car.

         Deputy Ehlers patted down Reed for weapons, asked Taylor to step out of the vehicle, and patted down Taylor as well. Deputy Ehlers then began searching the vehicle. He first searched the front passenger seat and then the back seat area. Next, Deputy Ehlers began searching the trunk. Deputy Ehlers found a coffee can with a hidden compartment which contained some coffee but smelled like marijuana. Deputy Ehlers opened luggage found in the trunk, which Taylor stated was his. Inside, the deputy found $7225 in cash. Deputy Ehlers then called for Sheriff Wade Harriman and Deputy Andrew Schillington to join him and to bring the drug dog.

         Sheriff Harriman, Deputy Shillington, and the drug dog arrived. The drug dog alerted on the trunk and the back seat of the vehicle. A gray duffel bag, belonging to Reed, was opened. In it, the officers located a black backpack with a small amount of loose marijuana on the bottom. Deputy Ehlers observed a digital scale and some plastic bags in the trunk, along with a large wrapped box, which Taylor stated was a nerf toy for his nephew. Deputy Ehlers opened the wrapped box in the trunk and found eight vacuum-sealed bags of marijuana, totaling 1398 grams, and one bag of cocaine, weighing 69 grams.

         Reed was arrested and charged with possession with intent to deliver (cocaine), possession with intent to deliver (marijuana), and failure to affix a drug tax stamp for the drugs found in the trunk of Taylor's car. In April, Reed filed a motion to suppress evidence, arguing the vehicle was improperly searched without a warrant. In May, a combined suppression hearing and bench trial was held. The district court overruled the motion to suppress, finding probable cause and exigent circumstances justified the warrantless search of the vehicle. The district court found probable cause existed because Reed and Taylor were on an indirect route, the officer smelled marijuana, Reed had a previous drug conviction in Iowa, Reed and Taylor had varied stories of why they were in Des Moines, and based on Reed and Taylor's demeanor during the stop. In a separate, summary order the district court found Reed guilty on all counts. Reed filed a motion in arrest of judgment and for new trial in August, arguing there was insufficient evidence he knowingly possessed the drugs to support the conviction. The State resisted, arguing constructive possession was proved. The court denied the motion verbally at sentencing without ruling on the issue of constructive possession and sentenced Reed. Reed appeals.

         II. ...


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