IN THE COURT OF APPEALS OF IOWA
No. 16-1614
Filed November 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROY A. HALVERSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
A defendant appeals his convictions for possession of methamphetamine
with intent to deliver and possession of clonazepam with intent to deliver.
AFFIRMED.
Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.
Roy Halverson appeals his convictions for possession of
methamphetamine with intent to deliver, in violation of Iowa Code section
124.401(1)(c) (2015), and possession of clonazepam with intent to deliver, in
violation of Iowa Code section 124.401(1)(d). On appeal, he argues the district
court erred in denying his motion to suppress evidence purportedly obtained in
violation of his constitutional protections against unreasonable search and
seizure. He also argues there is insufficient evidence to support his
methamphetamine conviction.
I.
One night, the Cedar Falls Police Department received a report a man,
later identified as Halverson, tried to pull a teenaged girl into a secluded area of
an apartment complex. It was also reported the man tried to sell drugs in the
apartment complex.
The police responded to the report and, upon arriving at the complex,
located a group of people outside the complex, including the teenaged girl. The
girl stated Halverson approached her after she stepped out of her apartment to
make a phone call. He grabbed the teen’s wrist and pulled her toward a more
secluded area of the apartment complex but let go of her after a few steps. At
some point in this encounter, Halverson told the girl he was “packing heat” and
they should go into the main portion of the apartment complex. The teen was
scared. Once inside the main portion of the apartment complex, the girl
witnessed Halverson offer to sell drugs to her brother and his friends, who
happened to be in the main portion of the complex. Halverson unscrewed the
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back of a flashlight and pulled out several clear baggies, some containing pills
and others containing a white substance. Halverson told the girl’s brother “one
was better than the other.”
After listening to the teen’s recollection of events, the responding officer
asked the group for a description of Halverson. Around the same time,
Halverson exited the apartment complex, and the group pointed him out to the
officer. The officer approached Halverson and patted him down. The officer
found no weapons, but she did find three cell phones, several condoms, a
keychain with a pill vial attached, and a mini flashlight. The officer opened the pill
vial and discovered several pills. She placed these items on the front of her
cruiser and arrested Halverson. Once at the police station, the flashlight was
opened and the drugs inside were identified as methamphetamine and
clonazepam. The methamphetamine was packaged into multiple baggies.
Halverson was charged with three counts: count I, possession of
methamphetamine with intent to deliver; count II, attempting to entice a minor;
and count III, possession of clonazepam with intent to deliver. Halverson moved
to suppress the drugs found in the pill vial and in the flashlight, arguing the
search of his person and seizure of these items violated his rights under the
Fourth Amendment of the United States Constitution and article I, section 8 of the
Iowa Constitution. The district court denied Halverson’s motion. Following a trial
on the minutes of testimony, the district court convicted Halverson on counts I
and III.
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II.
We first address Halverson’s search-and-seizure claim. The Fourth
Amendment to the United States Constitution and article I, section 8 of the Iowa
Constitution protect the right to be free from unreasonable searches and
seizures. The touchstone of any search-and-seizure claim is reasonableness
under the circumstances presented. See Pennsylvania v. Mimms, 434 U.S. 106,
108–09 (1977) (“The touchstone of our analysis under the Fourth Amendment is
always ‘the reasonableness in all circumstances of the particular governmental
invasion of a citizen’s personal security.’” (citation omitted)); State v. Kreps, 650
N.W.2d 636, 641 (Iowa 2002) (“The Fourth Amendment imposes a general
reasonableness standard upon all searches and seizures.”).
A search incident to arrest is reasonable within the meaning of the Fourth
Amendment and article I, section 8 of the Iowa Constitution. See State v.
Peterson, 515 N.W.2d 23, 25 (Iowa 1994) (“[W]e hold that in the case of a lawful
custodial arrest a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’ search under
that Amendment.” (quoting United States v. Robinson, 414 U.S. 218, 235
(1973))). A search incident to arrest “allows a police officer ‘to search a lawfully
arrested individual’s person and the immediately surrounding area without a
warrant.’” State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citation
omitted). The scope of the search is limited to “circumstances in which the
security of an arresting officer is implicated . . . or when the arrested person is
within reach of contraband and thus able to attempt to destroy or conceal it.”
State v. Gaskins, 866 N.W.2d 1, 15 (Iowa 2015). “[A] search incident to an arrest
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need not be made after a formal arrest if it is substantially contemporaneous with
it, provided probable cause for the arrest existed at the time of the search.”
Peterson, 515 N.W.2d at 25. So long as probable cause for an arrest existed at
the time of the search, evidence seized remains admissible pursuant to the
search-incident-to-arrest doctrine. See State v. Harvey, 242 N.W.2d 330, 339
(Iowa 1976).
The district court denied Halverson’s motion to suppress on the ground
the search was conducted incident to Halverson’s arrest. Halverson contends
this was error because the arresting officer lacked probable cause to arrest him.
We disagree. “Probable cause is present ‘if the totality of the circumstances as
viewed by a reasonable and prudent person would lead that person to believe
that a crime has been or is being committed and that the arrestee committed or is
committing it.’” State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005) (citation
omitted). The officer testified she was going to arrest Halverson for at least
simple assault, presumably based on the teen’s claims that Halverson grabbed
her, pulled her toward a dark portion of the apartment complex, and intimated he
had a gun. That is sufficient to establish probable cause supporting an arrest for
assault. See Iowa Code § 708.1 (defining assault); State v. Horton, 625 N.W.2d
362, 365 (Iowa 2001) (noting probable cause does not require evidence firm
enough to lead to indictment or conviction and determining probable cause is
based on practical considerations).
Halverson contends the search-incident-to-arrest doctrine is inapplicable
here because he could not have been arrested without a warrant for the offense
of simple assault. Specifically, Iowa Code section 804.7(3) authorizes a
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warrantless arrest only for an indictable offense, and simple assault is not an
indictable offense. This claim is not preserved for appellate review. Halverson
did not present this issue to the district court or obtain a ruling on this issue. See
Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (setting forth error
preservation rules); State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). Even if
error had been preserved, Halverson would not be entitled to relief. The arrest
was authorized pursuant to Iowa Code section 804.7(2). In addition, an arrest
under section 804.7(3) “is lawful if the facts available to the officer at the time of
arrest provide reasonable ground for believing an indictable offense has occurred
and the arrestee committed it—even if the officer announces a lesser offense as
the reason for the arrest.” Veatch v. City of Waverly, 858 N.W.2d 1, 9 (Iowa
2015). The officer testified she intended to arrest Halverson for at least simple
assault, there were reasonable grounds to believe an indictable offense occurred
based on the teen’s account that Halverson threatened her with a gun, although
he ultimately was not in possession of a gun, and as evidenced by Halverson’s
eventual charge for attempting to entice a minor. Halverson’s argument is thus
unavailing.
Halverson asks this court to interpret the Iowa Constitution more strictly
than the Federal Constitution. He argues the search-incident-to-arrest doctrine
should not be applicable unless the defendant is actually arrested prior to the
search. As a general matter, we note litigants frequently make the request to
interpret article I, section 8 “more strictly” or “more broadly” than the Fourth
Amendment. It is true that “[d]epending upon the particular issue, our precedents
interpreting article I, section 8 may provide greater or lesser protection than
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cases interpreting the Fourth Amendment.” State v. Bohl, No. 15-1546, 2016 WL
4543957, at *1 (Iowa Ct. App. Aug. 31, 2016). However,
[t]he right question, is not whether a state’s guarantee is the same
as or broader than its federal counterpart as interpreted by the
Supreme Court. The right question is what the state’s guarantee
means and how it applies to the case at hand. The answer may
turn out the same as it would under federal law. The state’s law
may prove to be more protective than federal law. The state law
also may be less protective. In that case the court must go on to
decide the claim under federal law, assuming it has been raised.
Id. at *2 (quoting Hulit v. State, 982 S.W.2d 431, 437 n.11 (Tex. Crim. App.
1998)).
Turning to the specific question presented, we question whether this issue
was preserved for appellate review. Regardless, on the merits, we decline the
invitation to deviate from established federal law. “We usually interpret the scope
and purpose of the Iowa Constitution’s search and seizure provisions to track
with federal interpretations of the Fourth Amendment.” Christopher, 757 N.W.2d
at 249. Halverson has not presented any compelling rationale to deviate from
established law in the area, and we see none. The touchstone of any Fourth
Amendment inquiry is reasonableness under the circumstances presented. See
Mimms, 434 U.S. at 108–09; Kreps, 650 N.W.2d at 641. It is imminently
reasonable, within the meaning of the federal and state constitutions, for an
officer who intends to arrest an individual based on probable cause to search the
individual immediately prior to, substantially contemporaneous with, or
immediately after an arrest. See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)
(“Where [a] formal arrest followed quickly on the heels of the challenged search
of petitioner's person, we do not believe it particularly important that the search
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preceded the arrest rather than vice versa.”); Peterson, 515 N.W.2d at 25.
Neither the connotation nor the denotation of the word “incident” demands the
conclusion that a search “incident” to arrest can be conducted only immediately
after formal arrest. Instead, the search only need be “connected with” the formal
arrest. See Incident, Black’s Law Dictionary (7th ed. 1999) (“Dependent upon,
subordinate to, arising out of, or otherwise connected with something else.”).
Finally, if Halverson seeks to break with established law, his efforts are better
directed to the supreme court for constitutional relief or the legislature for
statutory relief. See Spencer v. Philipp, No. 13-1887, 2014 WL 4230223, at *2
(Iowa Ct. App. Aug. 27, 2014) (“As a general rule, the task of materially altering
substantive or procedural rights is best left to the General Assembly or the
Supreme Court of Iowa.”).
For the foregoing reasons, we affirm the district court’s denial of
Halverson’s motion to suppress evidence. Because we conclude the search at
issue was lawfully conducted incident to Halverson’s arrest, we need not address
his claims regarding the application of the doctrine of inevitable discovery.
III.
We next address the challenge to the sufficiency of the evidence
supporting the conviction for possession of methamphetamine with intent to
deliver. The State was required to prove beyond a reasonable doubt: 1) That on
or about April 30, 2015, Halverson in Black Hawk County, Iowa knowingly
possessed methamphetamine; 2) Halverson knew that the substance he
possessed was methamphetamine; and 3) Halverson possessed the substance
with the intent to deliver a controlled substance. See Iowa Code § 124.401.
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Halverson only challenges the sufficiency of the evidence supporting the third
element.
“Sufficiency of evidence claims are reviewed for a correction of errors at
law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A verdict is upheld
when it is supported by substantial evidence. See State v. Webb, 648 N.W.2d
72, 75 (Iowa 2002). Evidence is substantial when the quantum and quality of
evidence is sufficient to “convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt.” Id. at 76. In conducting our review, “we view the
evidence in the light most favorable to the State, including legitimate inferences
and presumptions which may fairly and reasonably be deduced from the
evidence in the record.” State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006).
When the evidence is viewed in the light most favorable to the State, there
is sufficient evidence Halverson intended to deliver the methamphetamine. Here,
the teenager saw Halverson pull out a baggie of pills and another baggie with a
white substance from the flashlight and try to sell them to her brother and his
friends. She also heard Halverson state one was better than the other, indicating
Halverson had two different products, one of which was methamphetamine, for
sale. The methamphetamine was packaged into individual units, which supports
an inference the methamphetamine was packaged for resale. See State v.
Grant, 722 N.W.2d 645, 648 (Iowa 2006). While Halverson is correct that there
was no evidence he was carrying enough cash to infer he was in the business of
selling methamphetamine, the fact is not dispositive. The issue is whether the
evidence, when viewed in the light most favorable to the State, establishes guilt
beyond a reasonable doubt. Here it does.
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IV.
For these reasons, we hold the district court did not err in denying the
motion to suppress evidence and sufficient evidence supports the conviction for
the possession of methamphetamine with intent to deliver. The defendant’s
convictions are affirmed.
AFFIRMED.