IN THE COURT OF APPEALS OF IOWA
No. 17-1951
Filed March 6, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
FREDERIC HAYER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Rose Anne
Mefford, District Associate Judge (motion to suppress), and Lucy J. Gamon, Judge
(trial).
Defendant appeals his convictions and sentence for carrying weapons,
operating while intoxicated, and possession of marijuana. AFFIRMED.
Robert G. Rehkemper of Gourley, Rehkemper & Lindholm P.L.C., West Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Heard by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VOGEL, Chief Judge.
Frederic Hayer appeals his convictions and sentence for the crimes of
carrying weapons, operating while intoxicated, and possession of marijuana. He
argues the district court’s incorrect interpretation of Iowa’s implied consent statute
resulted in the inappropriate denial of his motion to suppress. Also, he asserts
none of the jury’s guilty verdicts were supported by sufficient evidence. We find
the district court correctly interpreted and applied Iowa law and substantial
evidence supports the jury’s findings.
I. Background Facts and Proceedings
On February 9, 2017, Deputy Matthew Maschmann was on routine patrol
when he observed a vehicle in the middle of a gravel road with the driver’s door
ajar and an individual, later identified as Hayer, standing next to the vehicle. As
the deputy approached, the individual returned to his vehicle and began driving in
the opposite direction of the deputy. After running the license plate number and
discovering the registration was expired, the deputy stopped the vehicle.
The deputy approached the driver in the vehicle and detected an odor of
“raw marijuana.” He questioned the driver, Hayer, about the odor, and Hayer
admitted he “had just smoked a little bit on the gravel road prior to [Deputy
Maschmann] stopping him.” Hayer stated he smoked “one hit” from a “one hitter.”
The deputy asked, “Do you feel the effects of [the marijuana]?” Hayer responded,
“I mean, not—like, a little bit.” Hayer also informed the deputy he had a concealed
weapons permit, a loaded pistol in his pocket, and other firearms properly stored
in his vehicle.
3
Hayer consented to a search of his vehicle, during which the deputy found
rolling papers but no marijuana. Hayer was placed under arrest for carrying
weapons and was transported to the county jail. At the jail, Hayer consented to
and fully cooperated in field sobriety tests and a preliminary breath test. Despite
having displayed some clues of impairment, Deputy Maschmann determined
Hayer passed the tests. However, based on Hayer’s admission to having smoked
some marijuana and the deputy’s detection of the odor, the deputy then invoked
implied consent and requested a urine sample. The urine tested positive for
marijuana metabolites with a threshold level of sixty nanograms per milliliter.
Hayer was charged with carrying weapons, an aggravated misdemeanor,
in violation of Iowa Code section 724.4(1) (2017); operating while intoxicated, first
offense, a serious misdemeanor, in violation of Iowa Code section 321J.2; and
possession of marijuana, a serious misdemeanor, in violation of Iowa Code section
124.401(5). Hayer filed a motion to suppress arguing Deputy Maschmann illegally
invoked implied consent and, therefore, Hayer’s positive urine test result should
be suppressed. The district court denied the motion after a hearing, held on June
15, 2017. Hayer renewed his motion on November 1, and it was again denied. A
jury trial was held on November 14, and the jury returned a guilty verdict on each
of the counts. Hayer received the following sentence: two days in jail, suspended,
and one-year probation, as well as a fine of $315 for the carrying weapons
conviction; two days in jail and a fine of $1250 for the operating while intoxicated
4
conviction;1 and two days in jail, suspended, and one-year probation, as well as a
fine of $315 for the possession conviction.
II. Standard of Review
“We review rulings on questions of statutory interpretation for correction of
errors at law.” State v. Childs, 898 N.W.2d 177, 181 (Iowa 2017) (quoting State v.
Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017)). Additionally, “[w]e review
sufficiency-of-the-evidence claims for correction of errors at law. We uphold a
verdict if substantial evidence supports it.” State v. Quinn, 691 N.W.2d 403, 407
(Iowa 2005) (internal citations omitted). “Evidence is substantial if it would
convince a rational fact finder that the defendant is guilty beyond a reasonable
doubt.” State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). “We review the
evidence in the light most favorable to the State, including legitimate inferences
and presumptions that may fairly and reasonably be deduced from the record
evidence.” Id.
III. Implied Consent to Test
Hayer claims the district court improperly interpreted Iowa Code section
321J.6 when it denied his motion to suppress evidence of the urine test result.
Hayer argues implied consent under Iowa Code section 321J.6 was
inappropriately invoked because the deputy did not have “reasonable grounds to
believe that [he] was under the influence of a controlled substance.” Iowa Code
§ 321J.6(1)(f). He asserts “officers must have evidence that a motorist is impaired
1
The offense of operating while intoxicated includes the operation of a motor vehicle
“[w]hile any amount of a controlled substance is present in the person, as measured in the
person’s blood or urine.” Iowa Code § 321J.2(1)(c).
5
or ‘under the influence’ of a drug prior to invoking implied consent.” The State
argues the officer had “reasonable grounds” based on Hayer’s admissions to the
officer and the officer noting the odor of marijuana emanating from the vehicle and
on Hayer’s breath. The following questioning of the deputy indicates his
“reasonable grounds” for invoking implied consent:
Q. Now, I want to ask you next about the — your invocation
of implied consent. Could you describe for me the reasonable
grounds that you had in order to invoke implied consent. A. He
admitted to the consumption of the marijuana.
Q. Anything else? A. And he was operating a motor vehicle
on a public roadway.
Iowa Code “chapter 321J provides authority for chemical testing of bodily
substances from persons suspected of driving while intoxicated.” State v. Palmer,
554 N.W.2d 859, 861 (Iowa 1996); see also Iowa Code § 321J.6. While the statute
requires the driver to give express consent before the test is administered, “[i]f the
driver refuses the test, the State must revoke his or her driver’s license.” Palmer,
554 N.W.2d at 861; see also Iowa Code § 321J.9(1). Specifically, Iowa Code
section 321J.6(1) provides,
A person who operates a motor vehicle in this state under
circumstances which give reasonable grounds to believe that the
person has been operating a motor vehicle in violation of section
321J.2 . . . is deemed to have given consent to the withdrawal of
specimens of the person’s blood, breath, or urine and to a chemical
test or tests of the specimens for the purpose of determining
the . . . presence of a controlled substance . . . . The withdrawal of
the body substances and the test or tests shall be administered at
the written request of a peace officer having reasonable grounds to
believe that the person was operating a motor vehicle in violation of
section 321J.2 . . . , and [one of the seven conditions exist] . . . .
The pertinent condition in this case is subsection f, which provides “[t]he
preliminary breath screening test was administered and it indicated an alcohol
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concentration less than the level prohibited by section 321J.2, and the peace
officer has reasonable grounds to believe that the person was under the influence
of a controlled substance.” Iowa Code § 321J.6(1)(f).
Hayer cites to Childs to support his assertion that an officer must have
evidence a driver is “impaired” before invoking implied consent. 898 N.W.2d at
182–87. In Childs, our supreme court reaffirmed the “per se ban on driving with
any amount of a controlled substance in the body, ‘whether or not they are under
the influence.’” Id. at 183 (quoting State v. Comried, 693 N.W.2d 773, 776 (Iowa
2005)). Hayer points to one sentence in the decision that states, “The harshness
of Iowa’s flat ban is ameliorated by the fact that the motorist would be asked to
submit to chemical testing only after the officer performed a lawful traffic stop and
had reasonable grounds to believe the driver was impaired.” Id. at 185. Hayer
argues the deputy had no evidence Hayer had any amount of marijuana in his
system and he was merely acting on a “suspicion or a hunch.” The State asserts
the quoted sentence from Childs is dicta, and the use of the word “impaired” does
not supplant the legislature’s terminology of “under the influence of a controlled
substance,” found in Iowa Code section 321J.6(1)(f), and “any amount of a
controlled substance is present,” as stated in Iowa Code section 321J.2(1)(c). We
agree.2
“The reasonable grounds test is met when the facts and circumstances
known to the officer at the time action was required would have warranted a
2
We find such statement is dicta because it is not necessary to the disposition of the case.
See Westinghouse Credit Corp. v. Crotts, 98 N.W.2d 843, 848 (Iowa 1959) (finding
statements in the opinion that were “not necessary to a determination of the case” are
considered “mere dicta and not authority to be followed”).
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prudent person’s belief that an offense has been committed.” State v. Braun, 495
N.W.2d 735, 738–39 (Iowa 1993); see also State v. Boleyn, 547 N.W.2d 202, 205
(Iowa 1996) (“The reasonable grounds test is determined under the facts and
circumstances known to the officers at the time the implied consent law is
evoked.”). Deputy Maschmann performed a lawful stop after finding Hayer’s
registration was expired. Upon reaching Hayer’s vehicle, Deputy Maschmann
smelled marijuana. Ultimately, Hayer admitted to smoking “one hit” of marijuana
within one to three minutes prior to the stop when Deputy Maschmann saw him on
the gravel road. Hayer also admitted to feeling the effects of marijuana “a little bit”
during the stop. Moreover, Deputy Maschmann detected an odor of marijuana on
Hayer’s breath. Because of the odor of marijuana in the vehicle and on Hayer’s
breath, as well as Hayer’s admissions of smoking marijuana and feeling its effects,
we find the deputy had reasonable grounds to believe Hayer was under the
influence of a controlled substance—marijuana—and properly invoked implied
consent. See Iowa Code § 321J.6(1)(f). Furthermore, we find the district court
properly interpreted and applied Iowa Code section 321J.6 and appropriately
denied Hayer’s motion to suppress.
IV. Sufficiency of the Evidence
A. Carrying Weapons and Operating While Intoxicated
Next, Hayer argues insufficient evidence exists to support the guilty verdicts
for the carrying weapons and operating while intoxicated offenses because the
State failed to prove he had a controlled substance in his urine at the time either
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offense was allegedly committed.3 Hayer asserts he ceased driving around 1:40
in the afternoon and the sample was not collected until 3:50, and, given this
elapsed time, the State has not proved the marijuana was in his urine at the time
he was driving or was in possession of his weapons. Also, Hayer argues there is
a chain of custody issue with the urine sample as it was not labeled with his
identifying information. The State conversely argues “the jurors in this case
reasonably considered the totality of the evidence and used their common sense
to conclude the defendant had a controlled substance in his system at the time he
operated a vehicle and possessed a weapon.”
The jury was given an instruction on the elements for the offense of carrying
weapons, and one element stated, “The permit issued to the defendant was not
valid because at the time the defendant was armed with a weapon he had any
amount of a controlled substance present in his urine.” Similarly, the jury was
given an instruction on the elements for operating while intoxicated, which included
the element that “the defendant had any amount of a controlled substance present
in the defendant’s urine” at the time he was operating a motor vehicle.
Regarding the chain of custody issue, the district court admitted the
evidence over defense counsel’s objection and noted it was “received for what it’s
worth, and that’s for the jury to determine.” “We review admission of such evidence
over a chain-of-custody objection for abuse of discretion. Unless there is a clear
abuse of discretion in such a ruling, we will not overturn it.” Biddle, 652 N.W.2d at
3
Hayer also presents an argument for insufficient evidence if we find the urine test results
should be suppressed. However, since we find suppression was properly denied, we
decline to address this argument.
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196 (citation omitted). To establish adequate chain of custody to warrant
admission of evidence, the State must “show circumstances making it reasonably
probable that tampering, substitution or alteration of evidence did not occur.
Absolute certainty is not required.” State v. Bakker, 262 N.W.2d 538, 542–43
(Iowa 1978). The State presented evidence from two criminalists with the Division
of Criminal Investigation, who testified about the procedures of the urine testing
and how identification problems are handled. Based on this evidence, we find the
district court did not abuse its discretion by finding the State met its burden for
admission of the urine test and allowing the jury to determine what weight to give
to the evidence.
In addition to the positive urine sample, Deputy Maschmann witnessed
Hayer outside his vehicle on the gravel road, Hayer admitted to smoking “one hit”
of marijuana on the gravel road when the deputy saw him, the deputy pulled him
over one to three minutes after Hayer said he smoked the marijuana, the deputy
smelled marijuana when he was at the window of the vehicle and on Hayer’s
breath, and Hayer admitted to feeling the effects of marijuana. Viewing this
evidence in a light most favorable to the State, there is sufficient evidence to
support the finding that Hayer had any amount of a controlled substance in his
urine when he was operating a motor vehicle and while in possession of a weapon.
See Biddle, 652 N.W.2d at 197.
B. Possession of Marijuana
Finally, Hayer urges our court to find the mere presence of a controlled
substance metabolite in an individual’s system is insufficient to support a
possession conviction. If we agree, then he asserts there is insufficient evidence
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to support the possession of marijuana, in violation of Iowa Code section 124.401,
because the only evidence is the urine test result, which tested positive for
marijuana metabolites.4 The State asserts “[t]his argument is meritless” as the
evidence in the record is sufficient to show Hayer possessed marijuana at some
point in time, which is all Iowa law requires.
The Iowa Code provides, “It is unlawful for any person knowingly or
intentionally to possess a controlled substance unless such substances was
obtained directly from, or pursuant to, a valid prescription or order of a
practitioner . . . , or except as otherwise authorized by this chapter.” Iowa Code
§ 124.401(5). To meet its burden of proof, the State must show the defendant
“exercised dominion and control over the contraband, had knowledge of the
contraband’s presence, and had knowledge the material was a narcotic.” State v.
Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v. Kern, 831 N.W.2d
149, 160 (Iowa 2013)).
Our case law recognizes two types of possession: actual possession and
constructive possession. Id. “[T]he distinction between actual possession and
constructive possession does not turn on whether a defendant was apprehended
with the contraband, but on whether there is sufficient evidence that contraband
was in his or her physical possession at some point in time.” Id.; see also State v.
Vance, 790 N.W.2d 775, 784 (Iowa 2010). “Actual possession may be shown by
direct or circumstantial evidence.” Vance, 790 N.W.2d at 784. In Vance, our
4
Hayer also presents an argument for insufficient evidence if we find the urine test results
should be suppressed. However, since we find suppression was properly denied, we
decline to address this argument.
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supreme court found “substantial evidence supports the jury’s finding that at one
time [the defendant] had actual possession of the pseudoephedrine with the intent
to manufacture methamphetamine.” Id. (emphasis added). The evidence found
in the vehicle at the time of the traffic stop included the receipt from the purchase
of pseudoephedrine, the proximity in time between the stop and the purchase, the
recently manufactured methamphetamine, and numerous items associated with
methamphetamine manufacturing. Id. at 784–85. Despite finding no
pseudoephedrine, the court determined a jury could “reasonably infer [the
defendant] possessed the pseudoephedrine with the intent the product be used to
manufacture methamphetamine” based on the evidence. Id.
Here, Hayer admitted to smoking when the deputy first saw him on the
gravel road, just before the stop; the deputy smelled marijuana on Hayer and
coming from the vehicle; and the urine sample tested positive for marijuana
metabolites. Based on this evidence, it is reasonable a jury would conclude Hayer
had possession of marijuana at the time he admits to smoking. He could not have
smoked it had he not possessed it. Therefore, we find there is substantial evidence
in the record to support the jury’s finding that Hayer had possession of marijuana
“at one time.” See id.
V. Conclusion
We conclude the district court correctly interpreted and applied Iowa law,
and therefore, properly denied Hayer’s motion to suppress the urine test. In
addition, we find substantial evidence supports all of the jury’s guilty verdicts.
AFFIRMED.
Gamble, S.J., concurs; Vaitheswaran, J., concurs specially.
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VAITHESWARAN, Judge. (concurring specially)
In State v. Childs, 898 N.W.2d 177, 185 (Iowa 2017), the Iowa Supreme
Court stated, “The harshness of Iowa’s flat ban is ameliorated by the fact that the
motorist would be asked to submit to chemical testing only after the officer
performed a lawful traffic stop and had reasonable grounds to believe the driver
was impaired.” I believe the sentence can only be read one way: there must be a
showing of impairment in addition to a showing the defendant ingested “any
amount” of an illegal substance. I cannot square the language with the court’s
holding. But because the sentence is dicta, I agree we cannot follow it down the
path suggested by Hayer. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct.
App. 1990) (“We are not at liberty to overturn Iowa Supreme Court precedent.”);
In re Detention of Johnson, No. 10-1462, 2012 WL 1860242, at *4 (Iowa Ct. App.
May 23, 2012) (declining to find that dicta opened the door to an argument).