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State v. Kilpatrick

Court of Appeals of Iowa

June 20, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL JOE KILPATRICK, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, David N. May, Judge.

         A defendant appeals four convictions for drug-related crimes, challenging the legality of an automobile search.

          Andrew J. Dunn of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

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

          TABOR, Judge.

         Des Moines police stopped Michael Kilpatrick as he drove a car registered to his brother, who had an outstanding arrest warrant. During the investigatory stop, an officer frisked Kilpatrick and removed heroin from his pocket. Another officer found a backseat passenger in possession of drug paraphernalia. A subsequent search of the car's glove box unearthed methamphetamine and cocaine-leading to Kilpatrick's convictions on four drug-related felonies. Kilpatrick appeals, challenging the extension of the stop after its initial purpose was resolved, questioning the State's reliance on the "plain-feel" exception to the warrant requirement, and arguing the glove-box search was not justified under the search-incident-to-arrest or automobile exceptions.

         Because police had not determined the identity of the car's occupants before the pat downs, the officers did not unduly prolong the stop. The police legally seized contraband from Kilpatrick based on the plain-feel doctrine. The driver's possession of heroin and the passenger's possession of drug paraphernalia provided probable cause to search the car. Accordingly, we affirm.

         I. Facts and Prior Proceedings

         One night in June 2016, Michael Kilpatrick borrowed the Pontiac Bonneville registered to his brother, James Kilpatrick, who was wanted for violating his parole. On routine patrol, a pair of Des Moines police officers ran the Pontiac's plates, discovered an active warrant for the registered owner's arrest, and signaled for the driver to pull over. As the Pontiac came to a stop, Officer Steven Bjurstrom saw the driver reach toward the center console and passenger side of the car. The movements concerned the officer-"[p]eople typically will hide weapons or retrieve weapons to attack or plan to attack or try to hide things, illegal substances, or things they don't want to be found."

         Both officers approached the Pontiac; Officer Bjurstrom spoke with the driver while Officer Ryan Neumann stood at the rear window on the passenger side. Officer Bjurstrom asked Kilpatrick to "hop out" of the car and then checked his driver's license, which identified him as Michael, not James. Kilpatrick also told the officer that the backseat passenger, Tyler Jennings, was not the car's registered owner. Officer Bjurstrom moved Kilpatrick to the rear of the Pontiac where the officer patted him down. The officer found no weapons, but detected a "crackle" that he believed to be consistent with drug packaging, and pulled a small knotted baggie holding heroin from Kilpatrick's cargo-pants pocket.

         Meanwhile Officer Neumann identified Nicole Kilpatrick as the female passenger in front seat. As Officer Bjurstrom patted down the driver, Officer Neumann noticed Jennings was sitting on a syringe. The officer said he "initially observed [the syringe] between [Jennings's] legs" and recovered it from the seat after the passenger was removed from the car. Officer Neumann found another syringe and a metal spoon with white residue in Jennings's pants pockets.

         All three occupants sat on the curb while police searched the Pontiac. Officer Bjurstrom unlocked the glove box with the ignition key and found two types of illicit drugs inside a black zippered pouch. According to a report from the Iowa Division of Criminal Investigation, the pouch held 44.5 grams of methamphetamine and 5.1 grams of cocaine salt. Michael Kilpatrick can be heard on the police dash-cam video admitting the drugs belonged to him.

         In a four-count trial information, the State charged Kilpatrick with (1) possession of methamphetamine, in excess of five grams, with intent to deliver, a class "B" felony, in violation of Iowa Code section 124.401(1)(b)(7) (2016) as a second or subsequent offense; (2) failure to affix a tax stamp to those drugs, a class "D" felony, in violation of sections 453B.3 and 453B.12; (3) possession of cocaine with intent to deliver, a class "C" felony, in violation of section 124.401(1)(c)(2)(b) and (d), as a second or ...


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