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State v. McMullen

Court of Appeals of Iowa

December 18, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
JHAMOND McMULLEN, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Jeffrey Farrell (motion to suppress) and David May (bench trial and sentencing), Judges.

         Jhamond McMullen appeals his convictions, sentences, and judgment following a bench trial and verdict finding him guilty of several drug-related offenses.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas 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.

          DOYLE, PRESIDING JUDGE.

         Jhamond 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.

         McMullen 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 other respects.

         I. Background Facts and Proceedings.

         Ankeny 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 driving.

         When he 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 squad car.

         While 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."

         Officer 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.

         The 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.

         The 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.

         Bush 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, ...


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