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State v. Gentry

Court of Appeals of Iowa

February 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
RUSSELL GENTRY JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.

         Defendant appeals his convictions for possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, and driving while barred. AFFIRMED.

          C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          Bower, Judge.

         Russell Gentry Jr. appeals his convictions for possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, and driving while barred. We conclude an officer's observations, both by visual estimation and pacing, support a rational inference Gentry was exceeding the speed limit, providing the officer probable cause to stop the vehicle. We affirm the district court's decision denying Gentry's motion to suppress.

         I. Background Facts & Proceedings

         On June 2, 2017, at about 2:00 a.m., Officer Jacob Fogt of the Marshalltown Police Department was on patrol when he noticed a red Toyota Camry in a moderate-to-high crime area. He decided to follow the vehicle, which was the only one on the road at the time. The car made several turns. Officer Fogt stated, "[I]t seemed like they were just attempting to get away from me with all of the unnecessary turns."

         On North Fourth Avenue, Officer Fogt estimated the Camry was traveling at thirty miles per hour in a twenty-five miles per hour zone. He attempted to determine the speed of the vehicle by keeping a consistent distance behind it, and saw his speedometer and GPS system both showed he was going thirty-three miles per hour. He checked the speed of the Camry in this manner for approximately three to five seconds.

         Officer Fogt stopped the Camry for speeding. The driver of the vehicle was Gentry.[1] Officer Fogt determined Gentry was barred from driving as a habitual offender. When Gentry got out of the vehicle at Officer Fogt's request, Gentry ran away. He was swiftly apprehended by officers. Gentry had a small baggie containing a white powdery substance in his right front pocket. Also, officers found a larger bag containing a white powdery substance on the ground where Gentry was apprehended. The substance in the bags was later determined to be 36.55 grams of cocaine. Additionally, Gentry had $680 in cash and two cell phones.

         Gentry was charged with possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(2)(b) (2017), a class "C" felony; failure to affix a drug tax stamp, in violation of section 453B.12, a class "D" felony; and driving while barred, in violation of section 321.561, an aggravated misdemeanor.

         Gentry filed a motion to suppress, claiming the stop of his vehicle was unconstitutional. At the suppression hearing, Officer Fogt testified he had training on making visual observations of vehicle speeds but no official training on pacing vehicles to determine speed. The district court denied the motion to suppress, finding:

Officer Fogt testified to the speed limit, 25 miles per hour; he testified to his own visual estimate of the speed, 30 miles per hour; and he testified to the estimate he made as he followed the Camry, 33 miles per hour. The court is not willing to characterize what Officer Fogt did as "pacing" the Camry, but he was in ...

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