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State v. Sallis

Court of Appeals of Iowa

March 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
NORTAVIS NORTEZ SALLIS, Defendant-Appellant.

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

         Defendant appeals his convictions and sentence for possession of cocaine, possession of a firearm as a felon, and possession of marijuana.

          F. David Eastman of Eastman Law Office, Clear Lake, for appellant.

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

          Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.

          VOGEL, CHIEF JUDGE.

         Nortavis Nortez Sallis appeals his convictions and sentence for possessing cocaine as a habitual offender, in violation of Iowa Code section 124.401(5) (2014); possessing a firearm as a felon, in violation of Iowa Code section 724.26; and possessing marijuana as a habitual offender, in violation of Iowa Code section 124.401(5). He argues the district court erred in denying his motion to suppress and abused its discretion when it admitted a photograph of a digital scale with an unknown white powder on it. Because the search warrant was supported by probable cause and the photograph's probative value outweighed the danger of unfair prejudice, we find the motion to suppress was properly denied and the district court did not abuse its discretion in admitting the evidence.

         I. Background Facts and Proceedings

         On October 22, 2014, Investigator Joseph Zubak applied for a search warrant for Sallis's residence. The application stated Investigator Michael Girsch received a report from a "concerned citizen," who saw "constant traffic coming and going from" the residence, and stated the visitors would only stay for a short period of time. Also, the application indicated Investigator Girsch conducted his own surveillance following the report and observed a lot of traffic coming and going at the residence, which he indicated was the "type of activity [that] is consistent with drug trafficking." Finally, the application stated the "concerned citizen" identified Sallis and listed Sallis's criminal history.

         Finding probable cause, a judge granted the search warrant, which was then executed on October 23. During the search, law enforcement found cocaine, marijuana, a handgun, and related paraphernalia, including a digital scale covered in a white, powdery substance. Sallis was charged with possession of cocaine, possession of a firearm as a felon, and possession of marijuana.

         On March 12, 2015, Sallis filed a motion to suppress the evidence found at his residence because he claimed the search-warrant application failed to establish probable cause, asserting the evidence was stale. A hearing on the motion was held on May 11, and the district court denied the motion on October 30. In the denial ruling, the district court found "[t]he information contained in the application for the search warrant would cause a person of reasonable prudence to believe that evidence of the illegal possession and delivery of controlled substances could be located on or about October 22, 2014." Sallis also filed a motion in limine requesting various evidence to be deemed inadmissible, including "[a]ny reference to suspected but untested drugs as potentially misleading and prejudicial." The district court denied the motion and determined the photo of a scale with an untested white powder was admissible.

         The case proceeded to trial, where Sallis renewed his motion to suppress, which was again denied. The jury returned guilty verdicts on all counts. After a trial to the court on the issue of sentencing enhancements, Sallis was sentenced on all convictions as a habitual offender, under Iowa Code sections 902.8 and 902.9, to a term of incarceration of fifteen years with a three-year minimum for each conviction; the sentences to run concurrently to each other. He appeals.

         II. Standard of Review

         Regarding whether probable cause supported the search warrant, our review is de novo. State v. Randle, 555 N.W.2d 666, 668 (Iowa 1996). "We do not, however, make an independent determination of probable cause; we merely decide whether the issuing judge had a substantial basis for concluding probable cause existed." State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). "In doing so, the judge may rely on 'reasonable, common sense ...


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