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State v. Ahmetovic

Court of Appeals of Iowa

August 1, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MEJDIL AHMETOVIC, Defendant-Appellant.

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

         Mejdil Ahmetovic appeals his convictions of possession of a controlled substance with intent to deliver and failure to affix a drug-tax stamp. AFFIRMED.

          Kent A. Balduchi of Balduchi Law Office, P.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Heard by Danilson, C.J., and Mullins and McDonald, JJ.

          MULLINS, JUDGE.

         Mejdil Ahmetovic appeals his convictions of possession of a controlled substance with intent to deliver and failure to affix a drug-tax stamp. He asserts the district court erred in denying his motion to suppress evidence, contending the warrantless traffic stop and subsequent searches of his pocket and an automobile in which he was a passenger violated his constitutional rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.

         I. Background Facts and Proceedings

         The following facts can be gleaned from the suppression record. Officer Wilshusen is an officer in the Des Moines Police Department's narcotics unit. On June 3, 2016 at approximately 6:00 p.m., Wilshusen received information from a confidential informant[1] that Ahmetovic would be in a "black Volkswagen vehicle" in a particular McDonald's restaurant parking lot at approximately 8:30 p.m. the same evening with approximately one ounce of cocaine in his possession.[2] Wilshusen was off duty at the time he received this tip, so he relayed the information to two officers assigned to the department's summer enforcement team, [3] Officers McCarthy and Becker.

          McCarthy and Becker's shift started at 8:00 p.m., at which time Wilshusen followed up with them to advise the information was still valid. McCarthy and Becker obtained a photograph of Ahmetovic and then "drove straight to the vicinity of the location that [Ahmetovic] was supposed to arrive at." McCarthy and Becker arrived at the location at 8:05 or 8:10 p.m. At approximately 8:50 p.m., a "black hatchback Volkswagen" arrived at the McDonald's parking lot. After the vehicle parked, the officers placed their squad car behind the vehicle and exited their squad car. As the officers were exiting their vehicle, McCarthy observed the individual in the front passenger seat "ben[d] over kind of abruptly towards the floorboard." The officers approached the Volkswagen, Becker on the driver side and McCarthy on the passenger side. The vehicle contained two occupants, and the individual seated in the front passenger seat was identified as Ahmetovic. During the course of their investigation, the officers learned Ahmetovic was not the owner of the subject vehicle. The driver was merely giving Ahmetovic a ride to a party they planned to attend that evening.

         Ahmetovic subsequently complied with McCarthy's request that he exit the vehicle. McCarthy then performed a pat-down, weapons search of Ahmetovic's person, during which McCarthy "noticed a hard bulge in the right coin pocket of [Ahmetovic's] pants." McCarthy testified: "The immediate feel of it, based on my experience and the specific information we were given from Officer Wilshusen, at that point I believed it to be cocaine." He further testified on cross-examination, "Based on the touch, I was very certain it was probably a narcotic." McCarthy "stayed on the item," pressed it with his fingers to draw Ahmetovic's attention to it, and asked Ahmetovic what it was; Ahmetovic responded he did not know. McCarthy asked, "Can I get it?" upon which Ahmetovic responded, "Yeah."[4]McCarthy removed the object, which appeared to be, and subsequently tested positive as, cocaine. Ahmetovic admitted the substance belonged to him. McCarthy also found more than $1000 in cash on Ahmetovic's person.

         Ahmetovic was placed under arrest and advised of his Miranda rights. During a subsequent search of the Volkswagen, the officers discovered "a much larger baggie of cocaine" underneath the front passenger seat, where Ahmetovic was sitting. Ahmetovic admitted the cocaine belonged to him.

         Ahmetovic was charged by trial information with possession of cocaine with intent to deliver and failure to affix a drug-tax stamp. Ahmetovic subsequently moved to suppress all of the drug evidence obtained as a result of the searches of his person and the vehicle, contending the warrantless searches were in violation of his constitutional rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. Following a suppression hearing, the district court denied Ahmetovic's motion. The court concluded the search of Ahmetovic's pocket was lawful because the nature of the item was "immediately apparent" to McCarthy or, alternatively, because the search was based upon valid consent. As to the search of the vehicle, the court concluded Ahmetovic-as a mere passenger with no possessory interest in the vehicle- lacked standing to challenge the search or, in the alternative, the search was lawful under the automobile exception.

         Ahmetovic waived his right to a jury trial and stipulated to a bench trial on the minutes of evidence. The court found him guilty as charged. Ahmetovic ...


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