from the Iowa District Court for Scott County, Patrick A.
McElyea (motion to suppress) and Mark J. Smith (trial and
defendant appeals his convictions and sentences following a
C. Smith, State Appellate Defender, (until withdrawal) and
Mary K. Conroy, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.
POTTERFIELD, SENIOR JUDGE.
Banks challenges his convictions and sentences following a
bench trial. Banks maintains the district court applied the
incorrect standard when deciding his motion for new trial
based on the weight of the evidence, considered improper
factors when deciding his sentence, and wrongly ordered him
to pay any appellate attorney fees he incurred in the future
(without the benefit of a hearing on his reasonable ability
to pay). Additionally, in his supplemental pro se brief,
Banks raises a number of other issues.
Background Facts and Proceedings.
October 25, 2017, local police officers used a confidential
source to complete a controlled buy of heroin from Banks.
Relying in part on this buy, officers applied for and
obtained a warrant to search Banks's person, vehicle, and
executed the warrant a couple hours later, after Banks left
the home in his vehicle. No drugs were found on Banks or in
his car, but Banks had in his possession one of the two
prerecorded $20 bills used in the controlled buy.
Additionally, Banks made statements to officers that they
would find drugs in his home and any drugs they found
belonged to him-not the woman with whom he was staying.
Officers recovered heroin cut with fentanyl, methamphetamine,
cocaine base, and marijuana from Banks's home. They also
located a digital scale, a number of small plastic bags, and
items tying Banks to the home, such as mail addressed to him
and his state-issued identification card.
was charged with four counts of possession with intent to
deliver- one each for heroin, cocaine base, methamphetamine,
and marijuana-and three counts of failure to affix a drug tax
filed a motion to suppress the evidence recovered at his
home, arguing the search warrant was based on an application
that included allegations that were neither true nor
State resisted the motion. It noted that the affidavit
supporting a search warrant has a presumption of validity and
that, in order to get a hearing to challenge it, a defendant
has to make a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
warrant affidavit. To meet his burden, Banks was required to
include an offer of proof supporting specific allegations of
what in the warrant affidavit was false. The State maintained
Banks's failure to include an offer of proof for his
conclusory assertion of falsehood prevented the need for a
hearing on the motion.
hearing on a number of motions filed by Banks, Banks offered
the warrant application as an exhibit. Banks noted the
application for the warrant stated the phone call made by the
confidential source to set up the buy from Banks was
recorded; later, the State reported that no such recording
existed. Additionally, Banks denied the controlled buy ever
took place. In support of his stance, he was placed under
oath at the hearing and testified he had never been directly
involved with the delivery of heroin.
court issued a ruling during the hearing and later filed a
written ruling as well. It denied Banks's motion to
suppress based on an allegation of false information
contained in the affidavit supporting the application for the
search warrant, finding
[Banks's] offer of proof was merely a general denial of
information contained in the search warrant affidavit and did
not provide sufficient evidence to generate a
Franks question. [Banks's] offer of proof did
not provide a substantial preliminary showing that the
affidavit contained a false statement that was knowingly and
intentionally made, or that the affiant acted with reckless
disregard for the truth. The parties did agree there was a
mistake contained in the affidavit regarding a recorded phone
call. The court followed the Franks procedure and
excised the word "recorded" from the affidavit. ...