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State v. Baker

Court of Appeals of Iowa

October 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JUSTIN ANDRE BAKER, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.

         Justin Baker appeals his convictions and sentences for multiple offenses. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., Tabor, J., and Carr, S.J. [*]

          VOGEL, PRESIDING JUDGE.

         Justin Baker appeals his convictions and sentences for possession with intent to deliver marijuana, failure to affix a drug tax stamp, driving while barred (two counts), and possession of marijuana, second offense.[1] He argues the district court erred in denying his motion to suppress, his counsel was ineffective for failing to file another motion to suppress, and the district court abused its discretion in imposing his sentence. We find the court properly denied the motion to suppress, he has not shown prejudice resulted from his counsel's failure to file a second motion, and the court adequately explained its reasoning for imposing his sentence. Accordingly, we affirm.

         I. Background Facts and Proceedings

         On August 30, 2015, Investigator Michael Girsch with the Waterloo Police Department[2] received a call from a law enforcement official in the state of Nevada. The official told Investigator Girsch they had stopped a vehicle containing three persons from Waterloo, including Baker. Nevada officials arrested all three persons after finding a distributional quantity of marijuana and other items in the vehicle. Investigator Girsch testified Baker was "on our radar" after he received the call. Nevada officials never charged Baker after his arrest.

         In early April 2016, Investigator Girsch was conducting surveillance on an unrelated matter in plain clothes near Ricker Street in Waterloo. He noticed Baker driving a vehicle and apparently preparing to pull into the driveway at a house. Baker then appeared to notice the investigator, and he continued driving past the house. Investigator Girsch testified he "stuck out in that neighborhood" despite wearing plain clothes and "it doesn't take a rocket scientist to figure out who a cop is in certain neighborhoods." Investigator Girsch circled the block and set up in a different location. He eventually observed Baker drive toward the house again, park in its driveway, and enter the house.

         On April 18, 2016, Investigator Matthew Isley with the Black Hawk County Sheriff's Office[3] received an anonymous call regarding Baker and his niece Shana Caldwell. The caller said Baker and Caldwell were living in the Ricker Street house that Investigator Girsch previously saw Baker enter. The caller also said the house contained a lot of marijuana and the two had just returned from out of town with a shipment of more marijuana.

         After receiving the anonymous call, Investigator Isley began watching the Ricker Street house. He saw Baker enter the house, exit about twenty minutes later, and drive away. Investigator Isley followed Baker's vehicle. He soon observed Baker's vehicle stop in an alley, where another man put his hand in the vehicle's open passenger window and then immediately removed his hand and put it in his pocket. Investigator Isley testified he sees hand-to-hand narcotics transactions "almost daily" in his line of work and the events in the alley were consistent with a hand-to-hand narcotics transaction.

         Investigator Isley then asked for a police officer to stop Baker's vehicle as part of their investigation into illegal narcotics activity. Sergeant Steven Bose with the Waterloo Police Department responded, identified Baker's vehicle, and activated his emergency lights. With the emergency lights directed at him, Baker continued to slowly drive for about one half-block, turned onto another street, and slowly drove for about another quarter-block before stopping. When Baker's vehicle turned, Sergeant Bose saw an object thrown out the driver's window. Once stopped, Sergeant Bose placed Baker in handcuffs and recovered the thrown object, which he determined was a small bag of marijuana. Baker had $200 in twenty-dollar bills in his pocket, but officials found nothing else significant on his person or in the vehicle.

         Investigator Girsch testified they decided to apply for a search warrant for the Ricker Street house after the traffic stop. He testified he was concerned Baker had alerted someone at the house to destroy evidence while he continued driving a "slow roll" before eventually stopping his vehicle. According to Investigator Girsch, oftentimes when law enforcement stops a drug offender's vehicle, "if they have a stash house or something like that, they will slow roll and try to get a text or call off for people to get rid of that evidence in that residence." Before writing the search warrant application, officials performed a protective sweep of the house looking for weapons and persons. During the sweep, officials saw a digital scale and a bag of marijuana in plain sight, and they noted the odor of fresh marijuana throughout the home. After the sweep, Investigator Isley wrote and submitted the application for the search warrant. The application included a five-page affidavit setting forth supporting facts, including the Nevada arrest, Investigator Girsch's observation of Baker's hesitation and avoidance behavior before entering the Ricker Street house, the anonymous call, the suspected hand-to-hand narcotics transaction, the bag of marijuana thrown during the traffic stop, and observations made during the sweep. The district court issued the search warrant later that day. Items found during the search included a digital scale, multiple bags of marijuana, miscellaneous packaging including both new and used empty small plastic bags, and various items containing marijuana residue.

         On May 17, 2016, the State filed a trial information charging Baker with possession of a controlled substance-marijuana, second offense and driving while barred as a habitual offender. See Iowa Code §§ 124.401(5), 321.561 (2016). The charges were filed in case number AGCR212970. On May 18, the State filed a second trial information charging Baker and Caldwell with possession of a controlled substance with intent to deliver and a drug tax stamp violation. See id. §§ 124.401(1)(d), 453B.12. The charges against Baker were filed in case number FECR213018. On November 2, the State filed a third trial information charging Baker with driving while barred as a habitual offender, related to his actions on September 28, in case number AGCR215793.

         On August 9, 2016, Baker filed a motion to suppress evidence for case number FECR213018, and he moved to join a similar motion filed by Caldwell. On September 12, the district court held a hearing on the motions. At the hearing, the parties clarified the motions challenged the bases for the stop of Baker's vehicle, the protective sweep of the house, and the warrant to search the house.

         On September 23, 2016, the district court issued its ruling on the motions to suppress. First, the court considered the basis for the investigatory traffic stop:

Under a totality of the circumstances view, the Court finds the stop of Baker's vehicle was supported by a reasonable suspicion of criminal activity. At the time of the stop, officers had received the anonymous tip indicating Baker and Caldwell recently received a "distributional amount" of narcotics through an anonymous tip as well as prior notification by Nevada law enforcement Baker had been arrested for possession of a large quantity of marijuana. This information, in addition to Investigator lsley's observation of what he believed to be a hand-to-hand narcotics transaction, provided sufficient facts to alert experienced officers to a reasonable suspicion of criminal activity, namely the sale or distribution of narcotics. The suspicion of criminal activity was confirmed when Baker attempted to dispose of marijuana before stopping his vehicle. Given the Court's finding the stop was reasonable any suppression issues related to the stop are denied.

         Second, the court found no exigent circumstances to support the protective sweep, and it suppressed evidence obtained in the sweep. Third, the court considered the basis for the search warrant of the house. Because the court suppressed evidence from the protective sweep, the court excised this evidence from the warrant application; however, the excised information only amounted to three paragraphs of the five-page affidavit. The remaining information in the application included Baker's arrest in Nevada, his hesitation to enter the house while Investigator Girsch watched him, the suspected hand-to-hand narcotics transaction, and the bag of marijuana Baker tossed out the car window. The court rejected the argument that the warrant application contained falsities because it failed to mention Baker was not charged by Nevada officials and Investigator Girsch wore plain clothes when he saw Baker hesitate to enter the house. Accordingly, the court found probable cause to support the warrant application, and it denied suppression issues related to the warrant and ensuing search.

         On January 24, 2017, Baker and Caldwell proceeded to a jury trial on case number FECR213018. The jury found both defendants guilty of possession of marijuana with intent to deliver and a drug tax stamp violation. On April 17, Baker pled guilty to possession of a controlled substance-marijuana, second offense, and two counts of driving while barred as a habitual offender from the other two proceedings. Also on April 17, the court entered judgment and sentence for each of the three proceedings. In addition to imposing and suspending fines and surcharges, the court imposed the following terms of incarceration: five years for possession of marijuana with intent to deliver, five years for the drug tax stamp violation, one year for possession of a controlled substance-marijuana, second offense, and one year for each of the two counts of driving while barred. All terms of incarceration were to be served concurrently.

         Baker now appeals. He argues the district court erred in denying his motion to suppress, his counsel was ineffective for failing to file a motion to suppress in case number AGCR212970, and the court abused its discretion in imposing his sentences.

         II. Standard of Review

         "We review the denial of a motion to suppress on constitutional grounds de novo." State v. Ingram, 914 N.W.2d 794, 798 (Iowa 2018). "We review claims of ineffective assistance of counsel de novo." State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). When a sentence is within the statutory limits, we review challenges to the sentence ...


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