from the Iowa District Court for Polk County, Jeffrey Farrell
(motion to suppress) and David May (bench trial and
McMullen appeals his convictions, sentences, and judgment
following a bench trial and verdict finding him guilty of
several drug-related offenses.
C. Smith, State Appellate Defender, (until withdrawal) and
Mary K. Conroy, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ. May,
J. takes no part.
McMullen appeals his convictions, sentences, and judgment
following a bench trial and verdict finding him guilty of six
drug-related offenses: two counts of possession of a
controlled substance with the intent to deliver as a second
or subsequent offender and habitual offender; two counts of
failure to possess a tax stamp as a habitual offender;
possession of a controlled substance, third offense; and
unlawful possession of a prescription drug.
contends the district court erred in four respects,
asserting: (1) there was not probable cause for the search of
his vehicle and his motion to suppress should have been
granted, (2) the evidence was insufficient to show he
knowingly possessed controlled substances and prescription
drugs, (3) the court erred in imposing fines upon him in its
sentencing order, and (4) the court erred in failing to
determine his reasonable ability to pay restitution. The
State concedes- and we agree upon our review-that the court
erred in not suspending the fines in its sentencing order. We
also find the district court did not follow the statutory
procedures for ordering restitution. So we vacate those
portions of the sentencing order and remand for resentencing
consistent with this opinion. Finding no merit in
McMullen's other two contentions, we affirm
McMullen's convictions, sentences, and judgments in all
Background Facts and Proceedings.
Police Officer Brice Van Drimmelen stopped a car after he
observed that "it was dark out and the headlights were
not on." There were two people in the car. McMullen,
owner of the car, was the passenger and Michaela Bush was
got to the driver's side door, Officer Van Drimmelen
smelled the odor of marijuana coming from inside the car.
Officer Van Drimmelen then requested backup. Officer Tony
Higgins arrived at the scene and walked up to McMullen's
car. Officer Higgins's bodycam recorded his interactions,
and the video was admitted into evidence at both the
motion-to-suppress hearing and the trial. Officer Van
Drimmelen asked the driver why the car smelled of marijuana,
and the driver responded she did not know. Officer Van
Drimmelen informed the driver that because he smelled
marijuana he had probable cause to search the vehicle, and
the officer had the driver step out of the car and sit in his
Officer Van Drimmelen was assisting the driver from the
stopped car, Officer Higgins watched McMullen from the
passenger-side window, shining his flashlight into the
vehicle onto McMullen's hands resting on the dashboard.
Shortly after the driver got out of the car, McMullen moved
his hands from the dashboard. Officer Higgins immediately
directed McMullen to keep his hands where Officer Higgins
could see them. Almost twenty seconds later, McMullen moved
his left hand down the dashboard and out of view for a
second, and Officer Higgins had McMullen get out of the car.
Officer Higgins asked McMullen if he had anything that would
stick him, poke him, or bite him or illegal on his body.
McMullen answered, "No, I believe not."
Higgins directed Officer Van Drimmelen to search McMullen,
and Officer Van Drimmelen found a plastic baggie full of cash
in McMullen's pocket. McMullen said it was $1500 and he
might be getting a house. The officers asked McMullen when he
had last smoked marijuana, and he denied smoking and stated
he did not know why the officer smelled marijuana. After they
searched him, the officers placed McMullen into the back of
Officer Higgin's squad car.
officers then searched McMullen's car. In the passenger
door compartment, the officers found a one-quart baggie of
marijuana, a butane torch, and a digital scale that appeared
to have some drug residue on it. In the center console cup
holder, the officers found a red Solo cup with what they
believed was loose marijuana. Inside the console, the
officers found a zippered makeup bag containing a
rainbow-colored grinder and two marijuana pipes. There was
also a medium-sized orange prescription bottle that had no
label but contained white-orange amphetamine capsules and
atomoxetine capsules, both prescription but non-scheduled
controlled substances in Iowa. A glass pipe was found in the
driver-side door compartment.
officers also found a blue backpack on the
front-passenger-side floor full of miscellaneous items. In
its main compartment, the officers found, among other things,
five baggies of marijuana, a box with baggies in it, butane
fuel, a digital scale cover, lotion, bars of soap, and air
freshener. In the front compartment of the backpack, the
officers found eight blister packs containing sixty-seven
white tablets consistent with etizolam; one single blue
amphetamine tablet; and twenty small, multi-colored squares
of blotter paper containing 2C-B, a drug similar to LSD.
and McMullen were questioned separately at the scene, and
each denied knowing of or possessing the drugs found in the
car and backpack. They also provided differing accounts of
prior activities that day. McMullen told the officer he had
loaned his car to another friend that morning, and the friend
dropped the vehicle off to Bush a couple of hours before the
traffic stop occurred. McMullen told the officers that
anything illegal in the car belonged to his friend. Bush
stated she had been with McMullen since that morning, ...