from the Iowa District Court for Woodbury County, Julie A.
discretionary review, the State challenges the district
court's grant of Carter's motion to suppress.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellant.
C. Smith, State Appellate Defender, (until withdrawal) and
Theresa R. Wilson, Assistant Appellate Defender, for
Considered by Tabor, P.J., Bower, J., and Blane, S.J.
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.
Background facts and procedure.
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. 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.
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. Officer Eral arrested Carter for
possession of the marijuana.
Eral is trained in drug recognition and previously handled
more than one hundred cases involving marijuana. He is
familiar with what marijuana smells like. 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.
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.
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. 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),  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
court also ruled, "[T]here was not probable cause
coupled with exigent circumstances, or a search incident to
lawful 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.
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.
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
Standard and scope of review.
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.
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