IN THE COURT OF APPEALS OF IOWA
No. 17-1303
Filed June 6, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHN WESLEY REED,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Ida County, Edward A. Jacobson,
Judge.
A defendant appeals his convictions for possession with intent to deliver
(cocaine), possession with intent to deliver (marijuana), and failure to affix a drug
tax stamp. REVERSED.
Mark C. Smith, State Appellate Defender, and Nan N. Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2
POTTERFIELD, Judge.
John Wesley Reed appeals his convictions following a bench trial for
possession with intent to deliver (cocaine), second offense, in violation of Iowa
Code sections 124.401(1)(c)(2)(b) (2017) and 124.411; possession with intent to
deliver (marijuana), second offense, in violation of sections 124.401(1)(d) and
124.411; and failure to affix a drug tax stamp, in violation of sections 453B.1 and
453B.12. On appeal, Reed argues the odor of burnt marijuana did not establish
probable cause for a warrantless search of the trunk of the car. He also argues
there is insufficient evidence to support his conviction because the State failed to
prove he possessed the drugs found in the trunk.
I. Background Facts and Proceedings.
On February 22, 2017 at 3:30 a.m., Deputy Alex Ehlers pulled over the
vehicle Reed was driving for traveling sixty-seven miles per hour in a fifty-five
miles-per-hour zone. Deputy Ehlers approached the passenger side and spoke to
Michael Taylor, the owner of the vehicle. Deputy Ehlers observed Taylor’s
bloodshot, watery eyes. Deputy Ehlers asked if there was marijuana in the car.
Both Taylor and Reed denied there was marijuana in the car. Deputy Ehlers
checked Reed’s license, discovered Reed was driving with a suspended license,
and asked Reed to step out of the vehicle. Deputy Ehlers again inquired whether
there was marijuana in the car, and Reed again denied its presence. When Deputy
Ehlers asked for consent to search the vehicle, Reed told him Taylor owned the
car and Taylor did not want Deputy Ehlers to search it.
Deputy Ehlers approached Taylor and asked for his license. Deputy Ehlers
again asked whether there was marijuana in the car. Deputy Ehlers requested
3
consent to search the vehicle, and Taylor replied the officer should just give Reed
a ticket. Deputy Ehlers told Taylor he could smell burnt marijuana in the car.
Deputy Ehlers patted down Reed for weapons, asked Taylor to step out of
the vehicle, and patted down Taylor as well. Deputy Ehlers then began searching
the vehicle. He first searched the front passenger seat and then the back seat
area. Next, Deputy Ehlers began searching the trunk. Deputy Ehlers found a
coffee can with a hidden compartment which contained some coffee but smelled
like marijuana. Deputy Ehlers opened luggage found in the trunk, which Taylor
stated was his. Inside, the deputy found $7225 in cash. Deputy Ehlers then called
for Sheriff Wade Harriman and Deputy Andrew Schillington to join him and to bring
the drug dog.
Sheriff Harriman, Deputy Shillington, and the drug dog arrived. The drug
dog alerted on the trunk and the back seat of the vehicle. A gray duffel bag,
belonging to Reed, was opened. In it, the officers located a black backpack with
a small amount of loose marijuana on the bottom. Deputy Ehlers observed a digital
scale and some plastic bags in the trunk, along with a large wrapped box, which
Taylor stated was a nerf toy for his nephew. Deputy Ehlers opened the wrapped
box in the trunk and found eight vacuum-sealed bags of marijuana, totaling 1398
grams, and one bag of cocaine, weighing 69 grams.
Reed was arrested and charged with possession with intent to deliver
(cocaine), possession with intent to deliver (marijuana), and failure to affix a drug
tax stamp for the drugs found in the trunk of Taylor’s car. In April, Reed filed a
motion to suppress evidence, arguing the vehicle was improperly searched without
a warrant. In May, a combined suppression hearing and bench trial was held. The
4
district court overruled the motion to suppress, finding probable cause and exigent
circumstances justified the warrantless search of the vehicle. The district court
found probable cause existed because Reed and Taylor were on an indirect route,
the officer smelled marijuana, Reed had a previous drug conviction in Iowa, Reed
and Taylor had varied stories of why they were in Des Moines, and based on Reed
and Taylor’s demeanor during the stop. In a separate, summary order the district
court found Reed guilty on all counts. Reed filed a motion in arrest of judgment
and for new trial in August, arguing there was insufficient evidence he knowingly
possessed the drugs to support the conviction. The State resisted, arguing
constructive possession was proved. The court denied the motion verbally at
sentencing without ruling on the issue of constructive possession and sentenced
Reed. Reed appeals.
II. Standard of Review.
“Challenges to the sufficiency of evidence are reviewed for errors at law.”
State v. Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002). When reviewing
challenges to sufficiency of the evidence, “courts consider all of the record
evidence viewed in the light most favorable to the State, including all reasonable
inferences that may be fairly drawn from the evidence. We will uphold a verdict if
substantial record evidence supports it.” State v. Romer, 832 N.W.2d 169, 174
(Iowa 2013) (citation omitted). “Evidence is substantial when ‘a rational trier of fact
could conceivably find the defendant guilty beyond a reasonable doubt.’” State v.
Howse, 875 N.W.2d 684, 688 (Iowa 2016) (citation omitted). If the “evidence only
raises ‘suspicion, speculation, or conjecture’, it is not substantial evidence.” Id.
(citation omitted).
5
III. Analysis.
We turn to Reed’s argument the evidence of constructive possession was
insufficient since that claim is dispositive. Reed argues the State presented
insufficient evidence to establish he possessed the marijuana and cocaine found
in the trunk of the car belonging to Taylor. To support the convictions of
possession with intent to deliver (cocaine), possession with intent to deliver
(marijuana), and failure to affix a drug tax stamp to those substances, the State
must prove Reed possessed the drugs found in the car. See Iowa Code
§§ 124.401(1) (“[I]t is unlawful for any person to manufacture, deliver, or possess
with the intent to manufacture or deliver.”), 453B.12(2) (“[A] dealer distributing,
offering to sell, or possessing taxable substances without affixing the appropriate
stamps, labels, or other official indicia is guilty of a class “D” felony.”). The State
must prove Reed “exercised dominion and control over the contraband, had
knowledge of the contraband’s presence, and had knowledge the material was a
narcotic.” State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008).
“The location in which the substance is found guides our determination of
possession.” State v. Dewitt, 811 N.W.2d 460, 474 (Iowa 2012). Possession can
be either actual or constructive. Id. Because no substances were found on Reed’s
person to indicate actual possession, we must next consider whether there was
sufficient evidence of constructive possession. See id.
To prove constructive possession, the State must show Reed “had
knowledge of the controlled substance as well as the authority or right to control
it.” State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). “If the premises on which
such substances are found are in the exclusive possession of the accused,
6
knowledge of their presence on such premises coupled with his ability to maintain
control over such substances may be inferred.” State v. Reeves, 209 N.W.2d 18,
23 (Iowa 1973). However, when the vehicle or premises are jointly occupied,
constructive possession must be established by other proof. State v. Bash, 670
N.W.2d 135, 138 (Iowa 2003). “Proof of opportunity of access to the place where
contraband is found will not, without more, support a finding of unlawful
possession.” Id. at 137. “The existence of constructive possession turns on the
peculiar facts of each case.” State v. Reed, 875 N.W.2d 693, 705 (Iowa 2016).
“The evidence of guilt must generate more than mere suspicion, speculation, or
conjecture.” Id.
Proof of possession could include “incriminating statements made by the
defendant, incriminating actions of the defendant upon the police’s discovery of
the controlled substance among or near the defendant’s personal belongings, the
defendant’s fingerprints on the packages containing the controlled substance, and
any other circumstances linking the defendant to the controlled substance.” Bash,
670 N.W.2d at 138.
The State argues Reed made incriminating statements to the law
enforcement officers during the stop. Reed stated they were headed straight home
to Colorado after visiting Des Moines, but he was driving on a highway in Ida
County, an indirect route between Des Moines and Colorado. The State argues
Reed and Taylor made inconsistent statements regarding their activities in Des
Moines during their two- to three-day stay. They stated they were visiting relatives,
picking up cash from a sale of a vehicle, and getting a vehicle repaired as part of
the trucking business. The State argues Reed and Taylor claimed to be friends,
7
but Reed could not answer several questions about Taylor. The video of the stop
shows Deputy Ehlers and Reed discussing the friendship. Reed knew Taylor was
a caretaker for veterans, but he did not know whether Taylor was a veteran himself.
Reed did not know whether Taylor had a criminal history. The State argues it was
incriminating for Reed to respond to a request to search the car by stating, “[Taylor]
don’t want you to search it” and, “It’s not my car, I can’t give you permission to do
that.” Reed declined to mention his recent conviction for possession of marijuana
in Dallas County when talking about his criminal history.
The State also argues Reed’s body language was incriminating: when
asked if there were any drugs in the car, Reed shook his head from side to side,
but also up and down once. Cf. State v. Carter, 696 N.W.2d 31, 40–41 (Iowa 2005)
(finding possession when defendant did not stop the vehicle immediately, but
continued driving, rummaged around in the car, struck the curb while looking for
something in the center console, and gave a false name when confronted by
officers, but noting that “furtive movements alone cannot support a finding of
constructive possession”). We disagree with the district court’s apparent
conclusion that the factors cited by the State as incriminating are sufficient to
support a finding of constructive possession.
The controlled substance was not found among or near Reed’s personal
belongings; Reed’s belongings were found in the back seat and the drugs were
found in the trunk of the car. The controlled substances packaging was not tested
to determine whether Reed’s fingerprints were on the packages.
When the “premises” involve a motor vehicle, a court may
consider these additional factors: (1) was the contraband in plain
view, (2) was it with the accused’s personal effects, (3) was it found
8
on the same side of the car seat as the accused or immediately next
to him, (4) was the accused the owner of the vehicle, and (5) was
there suspicious activity by the accused.
Id. at 39. Even if some factors are present, the court must determine whether all
of the facts and circumstances taken together create a reasonable inference that
the person knew of the presence of the controlled substance and had control and
dominion over it. Id. at 39–40.
Here, the contraband was not in plain view. It was not near Reed’s personal
belongings but separated in the trunk. Reed did not own the vehicle. Reed
maintained a calm and respectful demeanor throughout the police interaction, in
contrast to Taylor, who protested the search of the vehicle. Cf. State v. Henderson,
696 N.W.2d 5, 9 (Iowa 2005) (drugs were found on premises occupied by the
defendant and her guest; defendant was belligerent towards police whereas guest
was cooperative, acted like she had nothing to hide, and denied the drugs were
hers; such disparate reactions supported permissible inference that the drugs
belonged to the defendant). Unlike the defendant in Carter, who “began
rummaging to the right of him” as he evaded police, Reed took no action to exert
control over the drugs. Carter, 696 N.W.2d at 40.
Reed owned the gray duffel bag in the back seat of the car, containing a
backpack with 0.4 grams of loose marijuana in the bottom. The State argues we
can infer from the marijuana found in the bottom of the backpack that Reed
transported the eight sealed packages discovered in the trunk. Deputies opined
the amount was consistent with the backpack having stored a larger stash and
inconsistent with personal use. However, Reed is a resident of Colorado, a state
that allows residents to purchase up to 28 grams of marijuana at a time for personal
9
recreational use. See Colo. Const. art. XVIII, § 16. It is speculation to conclude
the small amount of residue is from transporting a large amount of marijuana rather
than from other sources.
This case is analogous to State v. Cashen, where our supreme court
determined “proximity alone is insufficient to establish constructive possession.”
666 N.W.2d 566, 572 (Iowa 2003). In Cashen, a baggie of marijuana was found
just behind the defendant and “off to the left of his hip.” Id. The court nonetheless
determined this position was insufficient to establish guilt where Cashen was not
the owner of the car, the drugs were not in plain view, the marijuana was not found
with Cashen’s personal effects, Cashen’s acts were not of an incriminating nature,
and Cashen’s girlfriend, who was sitting on his lap, claimed ownership. Id. at 572–
73.
We find the State presented insufficient evidence to support Reed’s
possession of the marijuana and cocaine found in the trunk. Therefore, we reverse
the judgments and sentence for possession with intent to deliver (cocaine),
possession with intent to deliver (marijuana), and failure to affix a drug tax stamp.
In light of our conclusion, we need not address the suppression issue raised by
Reed.
REVERSED.