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State v. Carter

Court of Appeals of Iowa

June 5, 2019

STATE OF IOWA, Plaintiff-Appellant,
MELTON RAY CARTER, Defendant-Appellee.

          Appeal from the Iowa District Court for Woodbury County, Julie A. Schumacher, Judge.

         On discretionary review, the State challenges the district court's grant of Carter's motion to suppress.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellant.

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

          Considered by Tabor, P.J., Bower, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         Our supreme court granted the State's application for discretionary review of a district court ruling that granted Melton Carter's motion to suppress the marijuana discovered on Carter's person by an officer conducting a warrantless search. The State challenges the court's determination that the officer's detection of marijuana odor coming from Carter's person by itself, absent other circumstances, was not adequate probable cause for the search. Upon our review, we conclude the district court incorrectly applied the law and reverse the grant of Carter's motion to suppress.

         I. Background facts and procedure.

         On August 30, 2017, Sioux City Police Officer Christopher Eral was sitting in his police vehicle and filling out paperwork with the window partially open. He observed a male, later identified as Carter, walking past his patrol car at a distance of thirty to forty feet. As Carter did so, Officer Eral detected an odor he recognized as marijuana.[1] The officer did not smell the marijuana odor until Carter walked by, and there was nobody else in the area who could plausibly have been the source of the odor.

         Officer Eral radioed that he was going to be out of his patrol vehicle with an individual, exited his patrol car, and then walked toward and called out to Carter. As Officer Eral and Carter approached each other, the officer detected the odor of marijuana coming directly from Carter's person. Officer Eral asked Carter for consent to search, which Carter denied. Officer Eral advised Carter that he was going to search Carter due to the odor of marijuana coming from his person. Carter admitted to Officer Eral that he had marijuana on his person, which the officer located in Carter's left pants pocket during the search.[2] Officer Eral arrested Carter for possession of the marijuana.

         Officer Eral is trained in drug recognition and previously handled more than one hundred cases involving marijuana. He is familiar with what marijuana smells like.[3] Officer Eral testified that when he first smelled the marijuana odor he felt he had "reasonable suspicion to at least talk with [Carter]." When he approached Carter and "was in close proximity with him" to engage in conversation, Officer Eral detected the marijuana odor coming directly from Carter and felt at this point he had probable cause to arrest Carter for possession of marijuana. Officer Eral had not yet placed Carter under arrest at the time of the search. Carter does not dispute that Officer Eral would have been able to smell marijuana on his person.

         On September 8, 2017, the county attorney filed a trial information charging Carter with possession of a controlled substance, third violation, based upon the events of August 30. On September 15, Carter filed a written arraignment and plea of not guilty. On October 24, Carter's counsel filed a motion to suppress the marijuana discovered during the search, asserting an illegal seizure and search under the Fourth Amendment to the United States Constitution, and article I, section 8 of the Iowa Constitution. Carter argued that Officer Eral did not have probable cause coupled with exigent circumstances to conduct the search and that the marijuana that was seized was not in plain view.

         On November 1, the State filed its resistance, arguing the officer had either probable cause and exigent circumstances or the search was incident to an arrest.[4] The district court held a hearing on the motion on January 29, 2018, at which both Officer Eral and Carter testified. On March 9, the district court filed its ruling. Relying on two Iowa Supreme Court cases, State v. Merrill, 538 N.W.2d 300, 301-02 (Iowa 1995), and State v. Moriarty, 566 N.W.2d 866, 868-69 (Iowa 1997), [5] the court reached the conclusion that the supreme court had not yet determined whether an officer's detection of a smell of marijuana alone gives rise to probable cause to conduct a warrantless search of a person. The court then concluded:

Under the current case law in Iowa, such is not sufficient, absent other circumstances. Applying the current case law in Iowa as set out above, the Court finds that Officer Eral did not have probable cause to conduct a warrantless search of the defendant's person based on the smell of marijuana alone. Unlike the previous decisions by our appellate courts, there was no testimony of any furtive movements, or any other paraphernalia such as a roach clip or pipe, visible on the defendant. The defendant was on foot, and not in a vehicle. While other jurisdictions have concluded that the smell of marijuana alone is sufficient for a warrantless search, the governing body of law in Iowa has not adopted such conclusion.

         The court also ruled, "[T]here was not probable cause coupled with exigent circumstances, or a search incident to lawful[6] arrest. While the State at the hearing also asserted a Terry stop, the officer's testimony was void of evidence to support the same." The court then granted the motion to suppress.

         On March 16, the State filed a motion to reconsider that ruling, asking the court to address the more recent Iowa Supreme Court case of State v. Watts, 801 N.W.2d 845 (Iowa 2011). The district court held a hearing on June 6. In its order on August 19, it discussed Watts and denied the State's motion to reconsider.

         On August 29, the State filed an application for discretionary review and motion to stay with the supreme court. By order on August 31, the supreme court granted the application and stayed the proceedings. The supreme court then transferred the review to this court, and it is now before us for consideration.

         II. Standard and scope of review.

         Our review of challenges to a ruling on the merits of a motion to suppress is de novo because such claims implicate constitutional issues. State v. Baker, 925 N.W.2d 602, 609 (Iowa 2019). "We make an 'independent evaluation of the totality of the circumstances as shown by the entire record.'" State v. Scheffert, 910 N.W.2d 577, 581 (Iowa 2018) (citation omitted). "We give deference to the district court's factual findings, but they do not bind us." Id.

         Before we embark on our review, we must first address the State's and defendant's contentions on what is actually before this court for review. The State contends that we may not consider an independent approach to article I, section 8 that would diverge from the Fourth Amendment as Carter did not urge the district court to consider it. Carter's motion to suppress specifically stated:

Article 1, section 8 of the Iowa Constitution is substantially identical to the Fourth Amendment; as such, the Iowa Supreme Court has "consistently interpreted the scope and purpose of Article 1, section 8, of the Iowa Constitution to track with federal interpretations of the Fourth ...

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