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State v. Banks

Court of Appeals of Iowa

January 9, 2020

STATE OF IOWA, Plaintiff-Appellee,
v.
DION JEREMIAH BANKS, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Patrick A. McElyea (motion to suppress) and Mark J. Smith (trial and sentencing), Judges.

         The defendant appeals his convictions and sentences following a bench trial.

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

          Thomas 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.

         Dion 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, [1]Banks raises a number of other issues.

         I. Background Facts and Proceedings.

         On 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 home.

         Officers 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.

         Banks was charged with[2] 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 stamp.

         Banks 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 accurate.

         The 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.

         At a 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.

         The 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[3] 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. ...

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