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State v. Muilenburg

Court of Appeals of Iowa

May 15, 2019

STATE OF IOWA, Plaintiff-Appellee,

          Appeal from the Iowa District Court for Clay County, Patrick M. Carr (motion to suppress) and Nancy L. Whittenburg (trial), Judges.

         Austin Muilenburg appeals his convictions for three drug-related offenses.

          Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas 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.

          MULLINS, JUDGE.

         We 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.

         Austin 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.

         I. Background Facts and Proceedings

         The 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[1] 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 shortly.
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.

         At the 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 application.

         The 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.

         Winterboer 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.

         Muilenburg 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 warrant's scope.

         Muilenburg 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.

          II. Analysis

         A. ...

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