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State v. Schuldt

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
GREGORY JOHN SCHULDT, Defendant-Appellant.

          Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy (suppression) and Randy V. Hefner (sentencing), Judges.

         A defendant appeals his conviction for intimidation with a dangerous weapon and his sentencing order of restitution.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

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

          Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J. [*]


         Gregory Schuldt appeals the denial of his motion to suppress in which he challenged the district court's issuance of three separate search warrants sought by Newton police in their investigation of a drive-by shooting. Schuldt also contests the district court's imposition of court costs without determining his reasonable ability to pay. Based upon our review, the district court had a substantial basis for concluding probable cause existed to issue the warrants. But the court failed to apply the statutory requirements for restitution. We affirm the convictions but reverse the sentences in part and remand for entry of a final restitution order.

         I. Procedural history and factual background.

         On January 17, 2018, the court found domestic abuse had been committed by Gregory Schuldt upon Nicole Byrd and issued a no-contact order (NCO). On January 17, Nicole's father Daniel Byrd had a verbal confrontation with Schuldt.[1]On Sunday, January 28, around 9:25 p.m., a light-colored sedan drove past the Byrd home in Newton, and eight shots were fired into the house. Both Daniel and his wife were present in the home at the time. The Newton police were called, and Daniel advised that there was only one person with whom he had any recent problems, that being Schuldt.

         After their initial investigation, on February 5, Newton police sergeant Chris Wing applied for a search warrant to obtain cell phone account information from U.S. Cellular, Schuldt's cell phone provider, for his assigned cell phone number. In support of the application, Sergeant Wing supplied the following information garnered from their investigation to that point, which we summarize here.

         On January 28, the home of Daniel and Debora Byrd in Newton was shot at eight times in a drive-by. The house belonged to the parents of Schuldt's former girlfriend, Nicole Byrd, who on January 17 had obtained a NCO against Schuldt. On the evening of the shooting, Schuldt had been at a bar in Des Moines with Stephanie Belieu. At around 8:25 p.m., Schuldt asked her for a ride to get his car. When she refused, Schuldt made a call on his cell phone to get a ride. Schuldt reunited with Belieu at a different bar in Des Moines at 10:00 p.m. He was gone long enough to go to Newton and return. At around 10:45 p.m., Schuldt asked Belieu if he could hide a gun in her car. She took Schuldt out to her vehicle and watched him unload a handgun and deposit it in the car. When they left the bar, Schuldt retrieved the gun.

         Around 8 a.m. the morning after the shooting, Schuldt posted on his Facebook page, "Underestimate me. That'll be fun." Schuldt also sent a Facebook message to Nicole Byrd asking what she had told the police during her interview, obviously referencing the drive-by shooting. And Daniel believed Nicole was still seeing Schuldt despite the NCO. Another family member, Destiny Lautenbach, who is friends with Schuldt on Facebook, provided snapshots of his postings.

         When Schuldt returned a call to Sergeant Wing, the officer verified Schuldt's cell phone number. Schuldt reported to Wing he had been at a bar the evening of the shooting. Wing asked if Schuldt had been in Newton, and without the officer mentioning the shooting, Schuldt replied he had nothing to do with the shooting. When confronted with the fact that the officer had not mentioned the shooting, Schuldt said he must have heard it from his brother. Wing had spoken earlier to Schuldt's brother, Joshua, but had not mentioned the shooting specifically. Wing believed Schuldt was providing false information.

         In the application for the first search warrant, Sergeant Wing stated he "believed that evidence of the crime of Intimidation with a Dangerous Weapon [in violation of Iowa Code section 708.6 (2018)] will be found on the Servers belonging to U.S. Cellular." Specifically, Wing pointed to "records related to subscriber information, . . . outbound and inbound call detail, connection times and dates, internet routing information . . ., and message content that may assist in the identification of person/s accessing and utilizing the account." In addition, Wing sought "records that include cell site information and Global Positioning System (GPS) location. . . . [allowing officers] ...

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