from the Iowa District Court for Ida County, Edward 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.
C. Smith, State Appellate Defender, and Nan N. Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
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.
Background Facts and Proceedings.
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
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
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.
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.
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.