from the Iowa District Court for Clay County, Patrick M. Carr
(motion to suppress) and Nancy L. Whittenburg (trial),
Muilenburg appeals his convictions for three drug-related
C. Smith, State Appellate Defender (until withdrawal), and
Theresa R. Wilson, Assistant Appellate Defender, for
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. Carr,
S.J., takes no part.
filed our original opinion on April 17, 2019. Austin
Muilenburg subsequently filed an application for rehearing,
which we granted. See Iowa R. App. P. 6.1204(5)
("If the petition for rehearing is granted, the decision
of the court of appeals is vacated and the court of appeals
shall retain jurisdiction of the case."). This opinion
replaces the opinion filed April 17, 2019.
Muilenburg appeals his convictions, following a trial on the
minutes of evidence, of three drug-related offenses. He
argues: (1) the district court erred in denying his motion to
suppress evidence obtained pursuant to a warrant, contending
the warrant was unsupported by probable cause; (2) his trial
counsel rendered ineffective assistance in failing to
challenge the probable cause supporting the warrant,
specifically the qualifications of the police officer who
applied for the warrant; and (3) there was insufficient
evidence to support his convictions of possession of cocaine
and prescription drugs without a valid prescription.
Background Facts and Proceedings
following facts can be gleaned from the suppression record.
On April 3, 2017, Officer Leigh Winterboer of the Spencer
Police Department observed an individual, identified as Alex
Cody, drive by Winterboer's location. Winterboer knew
Cody's driver's license was either revoked or
suspended, so Winterboer followed him after confirming
Cody's lack of driving privileges with police dispatch.
Winterboer followed Cody to an apartment building, and before
Winterboer could stop and make contact, he observed Cody exit
his vehicle and enter the apartment building. Winterboer
asked Cody's passenger, who Cody left behind in his
vehicle, about Cody's location. The individual reported
that Cody went inside the building to his apartment.
Winterboer knocked on the apartment door, and Muilenburg
answered. Winterboer noticed a faint odor of burnt marijuana
emanating from the apartment at the time. When Winterboer
asked for Cody, Muilenburg closed the door; after a short
time, Cody opened the door. Winterboer placed Cody under
arrest. After Winterboer transported Cody to the police
station, he filled out an application for a search warrant.
The affidavit in support of the warrant application
stated, in pertinent part:
On 4-3-17 at approximately 19:07 hrs. I (Officer Winterboer)
observed [Cody] operating his [vehicle] in the 10 block of
4th St. S.W. [Cody] then got out of the vehicle when he
observed a patrol vehicle and ran to the upstairs apartment,
12.5 4th Street S.W. leaving the passenger . . . standing
outside Cody's vehicle. I asked [the passenger] where
[Cody] went and he stated upstairs to [Cody's] apartment.
As l went upstairs I knocked on the only door up the stairs.
An unknown male answered the door and l asked him to get
[Cody]. At this time I was able to detect a slight odor of
burnt marijuana coming from inside the apartment. This
unknown male then closed the door and [Cody] came back out
Approximately 2 weeks prior to this incident a concerned
citizen [called law enforcement to report an individual
walking into the apartment known to be subject to a valid
court order committing her to a hospital]. At this time I
went to 12.5 4th St. S.W. and knocked on the upstairs
apartment . . . . Another unidentified male came to the door
and stated that [individual] did not live here. At this time
I was able to detect the odor of burnt marijuana coming from
his person. Upon speaking with this male he stated that [the
requested individual] does not live here but [Cody] does.
Based on my training and experience, I know that individuals
who use illegal narcotics often keep the narcotics or items
related to the consumption of narcotics in their personal
property within their residence or garages, or on their
persons. Based on the information provided, there is probable
cause to believe that items indicating the possession and/or
use of illegal narcotics and drug paraphernalia is present on
the person of [Cody] or in the residence located at 12.5 4th
St. S.W. in Spencer, Clay County, Iowa. A search of the above
named person and residence is necessary to verify the facts
in this case. I am therefore requesting that the Court allow
me to search the person of [Cody] and in the residence
located at 12.5 4th St. S.W. in Spencer, Clay County, Iowa
and seize any property located.
time of the warrant application, Winterboer did not know the
identity of the individuals who came to the door on either
occasion. A judicial magistrate granted the warrant
following facts can be gleaned from the minutes of evidence.
After the magistrate granted the warrant application, local
law enforcement, including Winterboer, executed the search
warrant at the apartment. Winterboer knocked and announced
their presence and ordered the door to be opened immediately.
When no one complied after multiple announcements, officers
breached the apartment. Winterboer encountered Muilenburg
near the entry door. Muilenburg was compliant with
Winterboer's commands to drop to the floor. Winterboer
and other officers cleared and secured the apartment, and no
one else was located in the apartment. Winterboer read the
search warrant to Muilenburg. When asked, Muilenburg admitted
he had a pipe and a bag of marijuana in his pockets, which
were recovered. An officer read Muilenburg his
Miranda rights and asked which bedroom was his.
Muilenburg advised the south bedroom was his and the north
bedroom was his roommate's. Muilenburg also stated Cody
no longer lived at the apartment, as Muilenburg and his
roommate recently kicked Cody out. Winterboer identified
Muilenburg as the individual who answered the door earlier
that day and the roommate as the individual who answered the
door two weeks before.
transported Muilenburg to the police station and then
returned to the apartment to help with the search. When he
returned, other officers were finishing their search of
Muilenburg's bedroom. From the communal areas of the
apartment and in the roommate's bedroom, police
discovered multiple drug-related items. From Muilenburg's
bedroom, officers seized numerous drug-related items,
including a gym bag containing a "pipe/glass jar"
with marijuana residue, multiple pipes, marijuana grinders, a
small baggy containing cocaine, a water bong, a container
with four individually wrapped bags of marijuana, a digital
scale, cash, and three orange or yellow pills. The pills were
imprinted with "G 13 7" and, through an online
database, police identified them as oxcarbazepine, which is
only available by prescription. After preparing the charges
against Muilenburg, Winterboer advised him of the possibility
of forfeiture proceedings for cash that was also seized, at
which time Muilenburg said he was taking responsibility for
any items located in his bedroom.
was charged by trial information with: (1) possession with
intent to manufacture or deliver marijuana, (2) possession of
cocaine, and (3) possession of a prescription drug without a
valid prescription. Muilenburg filed a pretrial motion to
suppress the evidence obtained pursuant to the warrant. He
argued the warrant lacked sufficient probable cause and the
search exceeded the scope of the warrant. Following a
hearing, during which only Winterboer testified, the court
denied the motion, concluding there was sufficient probable
cause to support the warrant's issuance and the warrant
permitted the search of the entire apartment, including
Muilenburg's bedroom, thus the police did not exceed the
waived his right to a jury trial, and the matter proceeded to
a bench trial on the minutes of evidence. The court found
Muilenburg guilty as charged. Muilenburg appealed following
the imposition of sentence.