IN THE COURT OF APPEALS OF IOWA
No. 16-1758
Filed January 10, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KOHL M. FISHER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Timothy J. Finn,
Judge.
A defendant appeals the district court’s denial of his motion to suppress
evidence discovered during the search of his vehicle. AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Heard by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.
Following a jury trial, Kohl Fisher appeals his conviction for conspiracy to
manufacture, deliver, or possess with intent to deliver methamphetamine and
possession with intent to deliver, in violation of Iowa Code sections
124.401(1)(c)(6) and 124.413 (2016). On appeal, he asserts the district court
should have granted his motion to suppress evidence because the search of his
vehicle was conducted at the request of his parole officer and violated his
constitutional rights. Because we conclude the search was legally conducted
under the automobile exception to the warrant requirement, we affirm the district
court’s denial of Fisher’s motion to suppress and affirm his conviction and
sentence.
I. Background Facts and Proceedings.
When he was released from prison in February 2016, Fisher signed a
standard parole agreement that provided, in part: “I will submit my person,
property, place of residence, vehicle, and personal effects to search at any time,
with or without a search warrant, warrant of arrest, or reasonable cause by my
parole officer or law enforcement officer.” Probation Officer Steve Naeve was
assigned to supervise Fisher’s parole in April 2016. As part of his parole, Fisher
was required to wear a GPS monitoring bracelet. Officer Naeve received
notification from Boone police on April 24 that Fisher was potentially suicidal.
Officer Naeve met with Fisher that day, and Fisher admitted to having recently
used methamphetamine.
In the following weeks, Officer Naeve consulted with Boone Police
Investigator Cory Rose. Investigator Rose and Officer Naeve had been told by a
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trusted confidential informant that Fisher and Fisher’s wife were distributing
methamphetamine in Boone and were getting supplies of methamphetamine from
an individual in Jefferson. Officer Naeve monitored Fisher’s movements through
the GPS bracelet and noted he was frequenting at least two locations in Boone
that Officer Naeve would describe as “drug houses”—Officer Naeve was familiar
with people that frequented the locations and knew those individuals were currently
using controlled substances. Fisher was also noted to frequent locations in nearby
Jefferson, which local Greene County law enforcement informed Officer Naeve
were locations where methamphetamine was being dealt.
On May 9, 2016, Investigator Rose contacted Officer Naeve to inform him
that Investigator Rose, while off duty, observed Fisher driving towards Jefferson.
Fisher’s vehicle stopped at a residence in Jefferson where Fisher had frequented
in the weeks leading up to May 9. Investigator Rose observed Fisher and Fisher’s
wife leave the residence after a short amount of time, “maybe about a half hour.”
Fisher then opened the hood to his car, reached underneath the hood, pulled
something out of his pocket, placed it under the hood, closed the hood, walked
around the car inspecting it, and then got into the car and drove away, heading
back towards Boone.
Investigator Rose followed Fisher, and Officer Naeve monitored Fisher’s
bracelet as Fisher traveled from Jefferson back towards Boone. Officer Naeve
advised Boone patrol officers that if they encountered Fisher, Officer Naeve
wanted to speak with him. Boone Police Officer Josh Olsen heard Officer Naeve’s
advisement that Fisher was headed to Boone and that his vehicle likely contained
drugs. Officer Olsen observed Fisher speeding and pulled him over. Officer Olsen
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contacted Officer Naeve, notifying him that Fisher had been stopped, and Officer
Naeve quickly arrived at the scene as he was only one block away when he was
contacted by Officer Olsen. After issuing him a warning for speeding, Officer Olsen
advised Fisher that Officer Naeve was present and wanted to speak with him, and
he told Fisher he was not free to go.
Officer Naeve asked Fisher what was in the car—inferring knowledge of the
presence of drugs—and Fisher denied anything was present. Officer Naeve asked
to search Fisher’s car, and Fisher responded that he knew he needed to consent
for his parole. Officer Naeve did not tell Fisher he had the right to refuse the
search. Investigator Rose, who had also arrived on scene, conducted the search
and quickly located a magnetic hide-a-key box in the hood compartment of Fisher’s
car, in the same location Investigator Rose had seen Fisher reach when Fisher
was at the house in Jefferson. Inside the box were two small baggies containing
what would later be determined to be methamphetamine.
Fisher denied knowledge of the methamphetamine and his wife, who was
a passenger in the car, claimed ownership of it. A search of Fisher’s wife’s purse
revealed other evidence of drug distribution, including three cell phones and a
notebook with names and figures consistent with controlled substance
transactions.
Fisher was arrested and charged for conspiracy and possession of the
methamphetamine. He filed a motion to suppress that sought, in part, to suppress
the evidence obtained from the search of his vehicle. The State resisted the
motion, asserting the search was valid under the automobile exception to the
warrant requirement and valid as a consensual search pursuant to the parole
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agreement. After conducting a hearing, the district court denied Fisher’s motion to
suppress concluding:
[T]he Court notes that the defendant was paroled from prison and on
February 24, 2016, the defendant signed a document entitled “Parole
Agreement” which contains the following language, to-wit: “I will
submit my person, property, place of residence, vehicle, and
personal effects to search at any time, with or without a search
warrant, warrant of arrest cause by my parole officer or law
enforcement officer.”
That is exactly what happened. The police did not need a
search warrant nor did they need even “reasonable cause” if
requested by his parole officer. This is exactly what happened.
The case proceeded to a jury trial on August 16, 2016, and the jury returned
a guilty verdict on both counts. The court merged the two offenses at sentencing,
and Fisher was ordered to serve an indeterminate term of incarceration of no more
than ten years with a one-third minimum term. The sentence was ordered to run
concurrently with the sentence he was serving on parole. Fisher appeals
challenging the court’s denial of his motion to suppress the evidence discovered
during the search of his vehicle.
II. Scope and Standard of Review.
We review de novo constitutional claims of a violation of an individual’s
rights under the Fourth Amendment of the U.S. Constitution and article I, section
8 of the Iowa Constitution. State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013).
“[W]e make an independent evaluation [based on] the totality of the circumstances
as shown by the entire record. Each case must be evaluated in light of its unique
circumstances.” Id. (second alteration in original) (citations omitted). “We give
deference to the district court’s fact findings due to its opportunity to assess the
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credibility of witnesses, but we are not bound by those findings.” State v. Brooks,
888 N.W.2d 406, 410 (Iowa 2016).
III. Vehicle Search.
While Fisher asserts the search of his vehicle was not justified by the parole
agreement or the special needs doctrine, see id. at 411–14 (outlining the cases
the supreme court has considered involving parolees and the special-needs
doctrine), the State argues the search is justified under the automobile exception
to the warrant requirement, see State v. Maxwell, 743 N.W.2d 185, 192 (Iowa
2008) (noting “[w]e are obliged to affirm an appeal where any proper basis appears
for a trial court’s ruling, even though it is not one upon which the court based its
holding” so long as the parties raised the issue in the district court (citation
omitted)).
Warrantless searches are per se unreasonable unless they fall within the
carefully drawn exceptions to the warrant requirement. State v. Gaskins, 866
N.W.2d 1, 7 (Iowa 2015). Our supreme court has recently reaffirmed the
automobile exception to the warrant requirement. State v. Storm, 898 N.W.2d 140,
145 (Iowa 2017). “‘[T]his exception is applicable when probable cause and exigent
circumstances exist at the time the car is stopped by police.’ The inherent mobility
of motor vehicles satisfies the exigent-circumstances requirement.” Id. (alteration
in original) (quoting State v. Holderness, 301 N.W.2d 733, 736 (Iowa 1981)). In
addition, there is a “lower expectation of privacy in vehicles compared to homes
and other structures.” Id.
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Because the inherent mobility of automobiles satisfies the exigency
requirement,1 we need only address in this case whether the officers had probable
cause for the search. “The standard for probable cause is whether a person of
reasonable prudence would believe a crime has been committed or that evidence
of a crime might be located in the particular area to be searched.” State v. Kern,
831 N.W.2d 149, 174 (Iowa 2013) (citation omitted). “An anonymous tip, alone,
does not ordinarily contain sufficient indicia of reliability to provide reasonable
suspicion, let alone probable cause. On the other hand, a significantly
corroborated and verified anonymous tip has been held sufficient by the United
States Supreme Court under the Fourth Amendment.” Id. at 175 (citation omitted).
In addition, a person’s status as a parolee alone does not amount to probable
cause. Id. at 176. But, “[i]n considering whether probable cause exist[s] in this
case, we remember the established principle that ‘the knowledge of one peace
officer, acting in concert with other peace officers, is presumed to be shared with
all.’” State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004) (citation omitted).
In this case, Investigator Rose testified at the suppression hearing he
believed Fisher had methamphetamine under the hood of his car on the night in
question:
With all of the information that we received [through] the
informant that they were engaged in distributing methamphetamine,
the information through his parole officer on going to this residence
near the Hy-Vee in Jefferson, that lining up with the informant
1
We also note Fisher’s vehicle contained two passengers, who could have driven the car
from the scene, furthering the exigency concern in this case. See Holderness, 301 N.W.2d
at 737 (“The exigency requirement, as explained in prior cases, is satisfied ‘when the car
is movable, the occupants are alerted, and the car’s contents may never be found again
if a warrant must be obtained.’” (citations omitted)).
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information of that’s where they have picked up methamphetamine
before.
Seeing Mr. Fisher that night going back and watching him
come out of the residence and remove something and place it under
the hood of the vehicle, which through the course of investigations, I
mean, I’ve found narcotics hidden on vehicles whether under the
hood, under a fender, various places to avoid detection. You know,
not a common place for somebody to place something on a vehicle.
Get in the vehicle after conducting a walk around of the
vehicle. Like I said, in my thoughts an attempt to make sure
everything is operating to not draw attention [of] law enforcement.
That, yes, I believe that there was contraband underneath the
hood of that vehicle placed there by Mr. Fisher.
From our de novo review of the evidence, we agree probable cause existed
to justify the search. Investigator Rose got a tip from a confidential source he knew
to be reliable that Fisher and his wife were distributing methamphetamine in Boone
and that they were getting their supply of methamphetamine from Jefferson. In the
weeks before the search, Fisher admitted to Officer Naeve that he had used
methamphetamine, and Officer Naeve observed Fisher’s GPS tracking bracelet
showed Fisher was frequenting known drug houses in both Boone and Jefferson.
Investigator Rose observed Fisher and his wife driving into Jefferson. He observed
Fisher’s vehicle parked at a known drug house, and he watched Fisher and his
wife walk out of the house after a short time. He then watched as Fisher opened
the hood of his car, pulled something from his pocket, and placed it in the engine
compartment of his vehicle. Fisher then walked around the car inspecting it, got
back into the car, and left town driving towards Boone. We agree with the State
that from this evidence “a person of reasonable prudence would believe a crime
has been committed or that evidence of a crime might be located in the particular
area to be searched.” See Kern, 831 N.W.2d at 174.
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Because our supreme court recently decided to “elect to retain the
automobile exception, consistent with our precedent, federal caselaw, and the
overwhelming majority of other states,” Storm, 898 N.W.2d at 142, we affirm the
district court’s denial of Fisher’s motion to suppress based on the automobile
exception. We need not address Fisher’s claim on appeal that the district court
was wrong to conclude the search was valid based on consent from his parole
agreement.
AFFIRMED.