State of Iowa v. Justin Andre Baker

IN THE SUPREME COURT OF IOWA
No. 17–0622

Filed March 29, 2019

STATE OF IOWA,

Appellee,

vs.

JUSTIN ANDRE BAKER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple and George L. Stigler, Judges.

A defendant seeks further review of a court of appeals decision

affirming his convictions and sentences. DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

Mark C. Smith, State Appellate Defender (until withdrawal), and

Martha J. Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Genevieve Reinkoester,

Assistant Attorney General, Brian J. Williams, County Attorney, and

Jeremy Westendorf, Assistant County Attorney, for appellee.
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WIGGINS, Justice.

A defendant appeals his convictions following judgment and

sentence for the charges of driving while license barred, possession of

marijuana, possession with intent to deliver marijuana, and failure to affix

a drug tax stamp. He first argues the district court erred in denying his

motion to suppress evidence because the police seized him in violation of

the Fourth Amendment to the United States Constitution and article I,

section 8 to the Iowa Constitution. Next, he argues the warrant used to

search his residence lacked sufficient probable cause. He also argues his

guilty pleas for driving while license barred and possession of marijuana

were involuntary because trial counsel was ineffective for failing to move

to suppress evidence before he entered his pleas. Lastly, he argues the

district court abused its discretion when it imposed the sentence.

On appeal, we affirm the decision of the court of appeals and the

judgment of the district court. We find the officers had reasonable

suspicion to conduct the traffic stop of Baker’s vehicle; therefore, the court

was not required to suppress the evidence obtained from the stop.

Because of this finding, we also find counsel was not ineffective in failing

to file a motion to suppress prior to Baker’s guilty pleas for driving while

license barred and possession of marijuana. We further find the district

court had a substantial basis for determining probable cause existed to

support the warrant the police executed on 702 Ricker Street in Waterloo,

Iowa. Therefore, it was not required to suppress the evidence obtained

from the search of the residence. Lastly, we will let the court of appeals

decision that the district court did not abuse its discretion in imposing

Baker’s sentence stand as the final decision of this court.
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I. Background Facts.

In August 2015, a Nevada State Trooper informed Officer Michael

Girsch of the Waterloo Police Department that officers from the State of

Nevada stopped a vehicle occupied by three Waterloo residents and the

vehicle contained a large distributional quantity of marijuana and

marijuana edibles. The Nevada officers placed all three individuals under

arrest. The defendant, Justin Baker, was one of them.

In April 2016, while Girsch was conducting undercover surveillance

in an unrelated investigation, he spotted Baker’s vehicle near the 700

block of Ricker Street. Girsch said he believed Baker identified him as an

officer and drove away. Girsch said, “[I]t appeared once he saw me sitting

there, it appeared as though it had alerted him or scared him for some

reason because it was my belief that his intention was to go to 702 Ricker

Street.” Girsch moved to a different position and continued to watch

Baker, who circled back around and pulled into the driveway of 702 Ricker

Street.

On April 18, Black Hawk County Sheriff Officer Matthew Isley

received an anonymous phone call from someone who told Isley he or she

had been at 702 Ricker Street in the past few days and had seen there was

a distributional amount of marijuana at the residence. The anonymous

tipster told Isley that Baker and Baker’s niece, Shana Caldwell, were living

at the residence and that Baker and Caldwell told the tipster they had

recently returned to town with a shipment of marijuana. The tipster told

Isley he or she suspected Baker and Caldwell were dealing drugs.

The same day, Isley informed Girsch of the anonymous call Isley

received because both officers were working on the Tri-County Drug

Enforcement Task Force. Based on the anonymous tip and the

information they received from the Nevada State Trooper, Isley and Girsch
 4

decided to conduct surveillance on Baker and Caldwell at their 702 Ricker

Street residence.

While conducting surveillance, the officers saw Baker enter the

house and then leave in his vehicle twenty minutes later. Both officers

followed Baker. Girsch observed Baker park in an alley and speak with

one or two individuals for only thirty seconds. Isley saw a male stick his

hand in the passenger side of Baker’s vehicle, immediately pull his hand

back out, and then put his hand into his pocket. Isley never saw any

drugs but identified this as a hand-to-hand drug transaction. Based on

this, the officers directed Sergeant Steven Bose of the Waterloo Police

Department to initiate a traffic stop on Baker’s vehicle.

Bose activated his emergency lights while behind Baker’s vehicle.

Baker took an inordinate amount of time to roll to a stop and threw a small

bag of marijuana out the window of his vehicle. Bose confirmed Baker was

driving while his license was suspended. Bose recovered the marijuana

then placed Baker under arrest. Baker had $200 in twenty-dollar bills on

his person. Due to Baker’s slow roll to a stop, officers were concerned

Baker had called or texted other people who were also involved in selling

narcotics. The officers believed others might have been destroying

evidence at 702 Ricker Street and went to the residence to secure the

premises.

Caldwell opened the door of her home when officers arrived. She

told them they could not enter without a warrant. The officers entered the

residence anyway. Inside, officers found narcotics and items consistent

with the sale of narcotics. After the traffic stop, Isley and Girsch prepared

a warrant application for a search of 702 Ricker Street, which the court

granted. The officers executed the warrant the same day. Upon reentering

the residence, officers seized a distributional amount of marijuana.
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II. Proceedings.

The State charged Baker with five counts. On May 17, in count I,

the State charged him with driving while license barred in violation of Iowa

Code sections 321.555 and 321.561 (2016), an aggravated misdemeanor.

In count II, the State charged him with possession of marijuana, second

offense, as a serious misdemeanor in violation of section 124.401(5). On

May 18, the State charged Baker with two more counts. In count I, the

State charged him with possession of marijuana with intent to deliver, a

class “D” felony, in violation of section 124.401(1)(d). In count II, the State

charged him with a drug tax stamp violation, a class “D” felony, in violation

of section 453B.12. On November 2, the State charged Baker with another

count of driving while license barred for acts alleged to have occurred on

September 28.

Baker filed a motion to suppress evidence. 1 In the motion, he

asserted the officers lacked probable cause to execute the traffic stop on

April 18 and any evidence stemming from the stop was fruit of the

poisonous tree. He also asserted the officers’ warrantless entry into 702

Ricker Street violated his constitutional rights. Therefore, he argued,

because the traffic stop and warrantless entry provided the basis for the
warrant that was ultimately granted and executed, the evidence obtained

by the warrant was also tainted.

The court granted Baker’s motion regarding the warrantless search

of 702 Ricker Street, finding exigent circumstances did not support the

protective sweep. The court denied Baker’s motion on the other two

issues. It found the stop of Baker’s vehicle was supported by reasonable

1Baker filed the motion jointly with Shana Caldwell, who faced the same charges

of possession of marijuana with intent to deliver and a drug tax stamp violation. The
motion to suppress only related to these two charges. Baker filed no such motion for the
driving while license barred or the possession of marijuana charges.
 6

suspicion based on the information of Baker’s arrest in Nevada, the

anonymous tip, and Isley’s observation of what he believed to be a

narcotics transaction. On the search-by-warrant challenge, the court

found that officers made the decision to obtain a warrant prior to their

initial entry into 702 Ricker Street. The court determined that without

considering facts obtained during the illegal entry and search, probable

cause still existed to grant the warrant.

On January 24, 2017, a jury trial began for the charges of

possession of marijuana with intent to deliver and violation of a drug tax

stamp. The jury found Baker guilty of both charges. Baker pled guilty to

the two misdemeanor charges of driving while license barred and the one

misdemeanor charge of possession of marijuana.

The court sentenced Baker on all five charges. The court sentenced

Baker to five years imprisonment for the possession of marijuana with

intent to deliver and five years for the drug tax stamp violation. For the

misdemeanor charges, the court sentenced Baker to prison for one year

for each count. The court ordered Baker to serve his sentences

concurrently.

Baker appealed. The court of appeals upheld his convictions and

sentences. Baker filed an application for further review, which we granted.

III. Issues.

We consider four issues. First, whether the district court erred in

denying Baker’s motion to suppress evidence because the investigatory

stop of Baker was not supported by reasonable suspicion. Second,

whether the district court erred in denying Baker’s motion to suppress

evidence obtained at 702 Ricker Street because probable cause did not

exist to support the issuance of the warrant. Third, whether Baker’s

counsel was ineffective for failing to move to suppress evidence before
 7

Baker pled guilty to driving while license barred and possession of

marijuana. Fourth, whether the district court abused its discretion when

it sentenced Baker.

“On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review.” State

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). In exercising our discretion,

we will not address the sentencing issue and let the court of appeals

decision stand as the final decision of this court as to whether the district

court abused its discretion when it sentenced Baker.

IV. Whether the District Court Erred in Denying Baker’s
Motions to Suppress Evidence.

Baker argues the district court erred in denying his motions to

suppress evidence under the Fourth Amendment of the United States

Constitution and article I, section 8 of the Iowa Constitution because

officers obtained evidence from an illegal stop of his vehicle and from an

illegal search of 702 Ricker Street.

A. Standard of Review. Our review of challenges to a ruling on the

merits of a motion to suppress is de novo because such claims implicate

constitutional issues. State v. Ortiz, 766 N.W.2d 244, 249 (Iowa 2009).
“We make an ‘independent evaluation of the totality of the circumstances

as shown by the entire record.’ ” State v. Scheffert, 910 N.W.2d 577, 581

(Iowa 2018) (quoting State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004)).

“We give deference to the district court’s factual findings, but they do not

bind us.” Id.

Baker argues officers had neither reasonable suspicion to warrant a

traffic stop, nor probable cause for the warrant, and thus officers violated

his rights to be free from illegal search and seizure under both the Iowa

and Federal Constitutions. When a defendant raises both federal and state
 8

constitutional claims, we have discretion to consider either claim first or

both claims simultaneously. State v. Ochoa, 792 N.W.2d 260, 267 (Iowa

2010). Because in some instances we have found the Iowa Constitution’s

search and seizure provisions to afford more protections than its federal

counterpart does, we could choose to analyze the claim under the Iowa

Constitution first. See id. at 291 (declining to follow the Supreme Court

by rejecting notion that parolees may be subject to broad, warrantless

searches by law enforcement); State v. Cline, 617 N.W.2d 277, 278 (Iowa

2000) (declining to follow the Supreme Court by rejecting a good faith

exception to the exclusionary rule in search and seizure cases under

article I, section 8), abrogated on other grounds by State v. Turner, 630

N.W.2d 601, 606 n.2 (Iowa 2001).

Here, counsel does not advance a distinct analytical framework

under the Iowa Constitution. He argues the federal framework under both

the Federal and Iowa Constitutions. When counsel does not advance a

distinct analytical framework under a parallel state constitutional

provision, we ordinarily exercise prudence by applying the federal

framework to our analysis of the state constitutional claim, but we may

diverge from federal caselaw in our application of that framework under
the state constitution. See In re Det. of Matlock, 860 N.W.2d 898, 903

(Iowa 2015); State v. Short, 851 N.W.2d 474, 491 (Iowa 2014); State v.

Baldon, 829 N.W.2d 785, 822–23 (Iowa 2013) (Appel, J., concurring

specially); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing

Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6–7 (Iowa 2004). Because

Baker did not advance a distinct analytical framework for his claim under

article I, section 8 of the Iowa Constitution, in our discretion we choose to

apply the federal framework applied to claims under the Fourth
 9

Amendment to the United States Constitution in considering his state

constitutional claim.

B. Applicable Law on Search and Seizure. The Fourth

Amendment of the United States Constitution protects persons from

unreasonable searches and seizures and requires a search warrant to be

supported by probable cause. U.S. Const. amend. IV. The Iowa

Constitution similarly protects persons from unreasonable searches and

seizures. Iowa Const. art. I, § 8. Warrantless searches and seizures are

per se unreasonable unless they fall under one of the recognized

exceptions to the warrant requirement. State v. Canas, 597 N.W.2d 488,

492 (Iowa 1999), abrogated on other grounds by Turner, 630 N.W.2d at 606

n.2.

One recognized exception allows an officer to stop an individual or

vehicle for investigatory purposes for a brief detention based only on a

reasonable suspicion that a criminal act has occurred or is occurring.

State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (citing Terry v. Ohio, 392

U.S. 1, 21–22, 88 S. Ct. 1868, 1880 (1968)). “The purpose of an

investigatory stop is to allow a police officer to confirm or dispel suspicions

of criminal activity through reasonable questioning.” State v. Kreps, 650

N.W.2d 636, 641 (Iowa 2002). This stop is a brief detention, and therefore

“[a]n officer may make an investigatory stop with ‘considerably less than

proof of wrongdoing by a preponderance of the evidence.’ ” Id. at 642

(quoting State v. Richardson, 501 N.W.2d 495, 496–97 (Iowa 1993) (per

curiam)).

However, while brief and for a limited purpose, such a stop and

detention is a “seizure” within the meaning of the Fourth Amendment and

article I, section 8. State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000)

(en banc), abrogated on other grounds by Turner, 630 N.W.2d at 606 n.2.
 10

Therefore, to justify an investigatory stop, an officer must have reasonable

suspicion, backed by specific and articulable facts, to believe criminal

activity is afoot. Terry, 392 U.S. at 21, 88 S. Ct. at 1880. “Circumstances

raising mere suspicion or curiosity are not enough.” Heminover, 619

N.W.2d at 357–58.

C. Whether the Seizure of Baker’s Vehicle Was Supported by

Reasonable Suspicion. To justify an investigatory stop, the State must

prove by a preponderance of the evidence that the stopping officer had

“specific and articulable facts, which taken together with rational

inferences from those facts, reasonably warrant[ed] that intrusion.” Id. at

357 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880). We consider the

circumstances under which the stop was made in light of the totality of

the circumstances confronting the stopping officer, including all

information available to the officer when he decided to make the stop.

Kreps, 650 N.W.2d at 647. “We view those circumstances through the

eyes of a reasonable and cautious police officer on the scene, guided by

his experience and training.” Id. Reasonable suspicion of a crime allows

an officer to stop and briefly detain a person to conduct further

investigation, while probable cause of a crime supports an arrest. State v.

McIver, 858 N.W.2d 699, 702 (Iowa 2015).

In McIver, we found an officer had reasonable suspicion to stop a

driver’s vehicle. Id. at 702–03. There, the stop occurred shortly after the

city bars closed for the night, and the officer testified it was not uncommon

for vehicles at this time to pull off the road and stop to allow intoxicated

occupants to urinate outside the vehicle. Id. Further, the officer observed

the vehicle parked in a closed business’s parking lot. Id. at 702. We said,

“While these circumstances alone would be insufficient to support

reasonable suspicion, they were relevant considerations.” Id. at 703. We
 11

also noted that the driver drove over the grass and onto the sidewalk and

curb as the vehicle left the parking lot and that the vehicle weaved within

the lane of travel as the officer followed it. Id. Thus, considering all the

circumstances together, we found the officer had a reasonable suspicion

the driver was operating while intoxicated. Id.

In State v. Kooima, we reversed a district court decision denying a

motion to suppress evidence because we found the police illegally seized

the defendant. 833 N.W.2d 202, 210–11 (Iowa 2013). In that case, an

officer stopped a vehicle after police received an anonymous tip that the

driver was intoxicated. Id. at 203. An officer followed the vehicle, which

made no traffic violations, and then stopped the vehicle based on the

anonymous tip alone. Id. at 205. We held the anonymous tip without the

requisite indicia of reliability and no other facts to support reasonable

suspicion did not support the investigatory stop. Id. at 211–12.

In contrast, in Kreps, we held an officer did have reasonable

suspicion to conduct an investigatory stop of a vehicle. See 650 N.W.2d

at 648. In that case, an officer began following a vehicle at 2 a.m. and the

vehicle began speeding up. Id. at 647–48. The vehicle made a complete

circle and then a passenger exited the vehicle while it was still in motion

and ran from the vehicle between houses. Id. at 648. At that point, the

officer stopped the vehicle and found the driver was intoxicated. Id. We

held that because the officer had reason to suspect that either the

passenger or driver, or both, was engaging in criminal activity, the officer

was allowed to pursue the vehicle, “stop, investigate, and resolve the

ambiguity.” Id.

In State v. Bumpus, we also held an officer had reasonable suspicion

to conduct an investigatory stop. 459 N.W.2d 619, 621 (Iowa 1990). In

that case, two officers were driving on patrol at 11 p.m. when they noticed
 12

three men in a lounge parking lot crouching behind a car. Id. One officer

recognized the defendant, while another officer recognized one of the other

men. Id. The officers observed the men exchanging something but never

saw exactly what it was. Id. The lounge the men were near was a notorious

site for drug transactions, and based on this, plus “the nature and

furtiveness of the actions” of the men and the lateness of the hour, the

officers pulled their patrol car into the lot to investigate. Id.

As the officers entered the lot, the defendant began to run away. Id.

One officer followed the defendant into the lounge, where the defendant

tried to conceal a black pouch from the officer. Id. After the defendant

failed to comply with the officer’s request to come outside, the officer seized

the defendant by the arm and led him out of the lounge. Id. The defendant

threw the black pouch over a fence, but officers retrieved it and found

forty-nine individual portions of crack cocaine. Id.

The defendant appealed his conviction and sentence for possession

of cocaine with intent to deliver. Id. at 622. He argued the officer lacked

probable cause to arrest him, and thus the court should have suppressed

the cocaine evidence. Id. at 622–23. We said that when the officers

entered the lounge parking lot, having observed the defendant and other

two men engaged in what appeared to be a drug transaction, the officers

did not have probable cause for an arrest. Id. at 624. The officers did

have, however, reasonable suspicion that a drug transaction did occur and

they were justified in conducting an investigatory stop. Id.

Here, considering all of the information the officer had when he

stopped Baker’s vehicle, we find the officer had reasonable suspicion to

conduct the investigatory stop. See Kreps, 650 N.W.2d at 647–48. Isley

and Girsch directed Bose to make the traffic stop after Isley witnessed

what he believed to be a hand-to-hand drug transaction in an alley. Isley
 13

based his belief on his experience of more than ten years in law

enforcement, including his experience for over two years on the Drug

Enforcement Task Force. See United States v. Arvizu, 534 U.S. 266, 273,

122 S. Ct. 744, 750–51 (2002) (explaining that reasonable suspicion is

derived from an officer’s “own experience and specialized training to make

inferences from and deductions about the cumulative information

available to them that ‘might well elude an untrained person.’ ” (quoting

United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981))).

In addition to Isley witnessing what he believed to be a hand-to-hand

drug transaction, Isley and Girsch were aware of other facts that

supported the conclusion they had reasonable suspicion of criminal

activity. First, Girsch saw Baker acting suspiciously near 702 Ricker

Street just two weeks prior to Baker’s arrest. Second, an anonymous caller

reported that Baker had just returned to town with a large shipment of

marijuana and that there was a large quantity of marijuana at the Ricker

Street house. After receiving the tip, the investigators conducted

surveillance of 702 Ricker Street, during which time they saw Baker leave

the residence and then engage in what Isley believed to be a hand-to-hand

drug transaction. While these circumstances alone may not rise to the

level of reasonable suspicion, we consider the “totality of the

circumstances.” McIver, 858 N.W.2d at 703; Kreps, 650 N.W.2d at 642.

Unlike Kooima, where we found an anonymous tip alone did not rise

to reasonable suspicion to stop a vehicle, see 833 N.W.2d at 210–11, here,

the anonymous tip was corroborated by the other facts known by officers,

see Alabama v. White, 496 U.S. 325, 326–27, 110 S. Ct. 2412, 2414 (1990)

(finding anonymous tip rose to the level of reasonable suspicion when

corroborated by independent police work verifying some information from

the tipster). Like in Kreps, where an officer became suspicious of a vehicle
 14

that seemed to evade him, see 650 N.W.2d at 647–48, here, Baker tried to

evade Girsch on a previous occasion while going to 702 Ricker Street. The

officers in the present case had just as many or even more facts lending to

reasonable suspicion than the officer in Kreps. See id.

As for the officer’s purpose of stopping Baker, it is clear the purpose

was to investigate whether Baker was selling narcotics from his vehicle.

All of the information known to officers provided reasonable suspicion that

Baker was involved in narcotics sales, and therefore, they were justified to

“stop, investigate, and resolve the ambiguity.” Kreps, 650 N.W.2d at 648;

cf. State v. Tyler, 830 N.W.2d 288, 298 (Iowa 2013) (holding officer did not

have reasonable suspicion to conduct an investigatory stop where the stop

was not for the purpose of investigating an ongoing crime).

Therefore, assessing the facts known to the officer under the totality

of the circumstances, we find the officer had reasonable suspicion to

conduct an investigatory stop of Baker in his vehicle. Accordingly, the

district court did not err in denying Baker’s motion to suppress evidence

obtained as a result of the traffic stop. 2

D. Whether Probable Cause Supported the Issuance of a

Warrant to Search 702 Ricker Street. A search warrant must be
supported by probable cause. Iowa Const. art. I, § 8. We use the totality-

of-the-circumstances standard to determine whether officers established

probable cause for issuance of a search warrant. State v. Davis, 679

N.W.2d 651, 656 (Iowa 2004). The test for probable cause is “whether a

person of reasonable prudence would believe a crime was committed on

the premises to be searched or evidence of a crime could be located there.”

2As Baker was stopping, he threw a bag of marijuana out of his vehicle’s window.

Bose recovered the marijuana and placed Baker under arrest. Because Baker had the
bag of marijuana in violation of Iowa law, Bose had probable cause to arrest Baker. This
argument was reached by the court of appeals, which we will not disturb.
 15

State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997) (quoting State v. Weir, 414

N.W.2d 327, 330 (Iowa 1987)). The issuing court must make a probability

determination that the items sought are connected to criminal activity and

the items will be found in the place to be searched. Id. The judge “ ‘is

simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, including the “veracity”

and “basis of knowledge” of persons supplying hearsay information,’

probable cause exists.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238,

103 S. Ct. 2317, 2332 (1983)).

In determining whether there was probable cause for a warrant, we

review the information actually presented to the judge and determine

whether the issuing judge had a substantial basis for concluding that

probable cause existed. State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015).

In reviewing the warrant application, we interpret the affidavit of probable

cause in a common sense, rather than in a highly technical manner. Id.

at 100. We draw all reasonable inferences to support the judge’s finding

of probable cause and decide close cases in favor of upholding the validity

of the warrant. Gogg, 561 N.W.2d at 364.

Baker makes several arguments for why probable cause did not exist

to support a search warrant. He argues first that the marijuana recovered

after the stop of Baker’s vehicle must be suppressed because Baker was

illegally seized. As we said above, we find the officer had reasonable

suspicion that criminal activity was afoot to conduct the traffic stop, and

therefore, we will consider the marijuana recovered from the traffic stop as

part of the warrant application.

Baker also argues officers omitted material information from the

warrant application. To challenge the veracity of a warrant application, a

defendant normally must make a preliminary showing under oath that an
 16

applicant for a warrant intentionally made false or untrue statements or

otherwise practiced fraud upon the magistrate or that a material statement

made by such applicant is false, whether intentional or not. State v. Boyd,

224 N.W.2d 609, 616 (Iowa 1974), overruled on other grounds by State v.

Seager, 341 N.W.2d 420 (Iowa 1983). Baker did not make such a showing,

however, his codefendant raised the issue of the affidavit’s validity, and

the district court ruled on the issue when denying the motions to

suppress. 3 Because the State did not object to the issue of the affidavit’s

validity in the district court, we will consider the merits of Baker’s veracity

claim on appeal. See State v. Groff, 323 N.W.2d 204, 209 (Iowa 1982).

Baker alleges Isley omitted material facts from the warrant

application in three instances. First, Isley stated in his affidavit that Baker

was arrested for narcotics trafficking in Nevada but did not state that

Baker was not convicted of a crime. Second, Isley stated that Baker evaded

Girsch when he saw Girsch conducting surveillance, but did not state

Girsch was undercover in plain clothing and an unmarked vehicle at that

time. Third, Isley failed to include information to demonstrate the

reliability of the anonymous informant.

Baker bears the burden of proving that officers made materially false

statements in the affidavit either deliberately or with a reckless disregard

for the truth. See State v. Green, 540 N.W.2d 649, 656 (Iowa 1995); Groff,

323 N.W.2d at 207–08. In Green, we held officers did not misrepresent

3The Supreme Court has endorsed a similar procedure, saying,
[W]here the defendant makes 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, and if the
allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s
request.
Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978).
 17

facts in a warrant application that was granted to search the home of the

defendant. 540 N.W.2d at 657–58. There, the defendant had beaten his

girlfriend to death in their home, and he told family and friends she had

left with another man. Id. at 653. After seven months of no contact from

the deceased woman, her family became suspicious and asked police to

investigate. Id. When officers went to the defendant’s home to inquire

about his girlfriend, officers noticed the woman’s car was still in the

garage. Id. The defendant told officers he bought the car and his girlfriend

did not take it when she left. Id. Officers obtained and executed a search

warrant of the defendant’s residence and found the body of defendant’s

girlfriend. Id.

The defendant there argued officers misrepresented the facts in the

warrant application by not including his statement that he bought his

girlfriend’s car, his explanation for why her car was in their garage. Id. at

657. We found this unpersuasive, saying, “[A]n officer applying for a

search warrant ‘is not required to present all inculpatory and exculpatory

evidence to the magistrate,’ only that evidence which would support a

finding of probable cause.” Id. (quoting State v. Johnson, 312 N.W.2d 144,

146 (Iowa Ct. App. 1981)). We reasoned that omissions of fact are

misrepresentations only if the omitted facts “cast doubt on the existence

of probable cause,” and the recitation of the defendant’s explanation would

not have cast reasonable doubt on the existence of probable cause. Id.

(quoting State v. Ripperger, 514 N.W.2d 740, 745 (Iowa Ct. App. 1994)).

In Gogg, we held an officer’s affidavit did not misrepresent facts in a

warrant application that was granted to search the home of the defendant,

who was subsequently charged with possession of methamphetamine and

conspiracy to manufacture or deliver methamphetamine. 561 N.W.2d at

364–65. The court granted the warrant based on only information from a
 18

confidential informant, and the defendant argued probable cause was

lacking because the confidential informant was not reliable. Id. at 363.

Specifically, the defendant argued the officer’s affidavit had

misrepresented how reliable the informant was by stating the informant

had given “reliable information on several occasions in the past.” Id. at

364. While at the suppression hearing, the officer testified that the

informant had provided reliable information on two prior occasions. Id.

We held the information in the affidavit was not a misrepresentation,

saying, “The fact that the information had been verified on only two

occasions does not mean the informant’s information on the other six

occasions was not reliable.” Id. at 364–65.

In State v. Paterno, the defendant challenged his conviction of

possession of a controlled substance with intent to deliver, arguing the

officer who obtained the warrant made a material misrepresentation. 309

N.W.2d 420, 423 (Iowa 1981). There, an informant smoked marijuana and

hash with the defendant at the defendant’s home. Id. at 421–22. The

defendant became suspicious of the informant and told her he was going

to flush all of the marijuana he possessed down the toilet, which he did

while she was still in his house. Id. at 422.

In the warrant application, the officer included information from the

informant that the defendant possessed marijuana and offered it to the

informant. Id. at 422–23. The defendant argued the officer’s omission of

the information that the defendant was aware of the investigation and had

destroyed the remaining marijuana was a misrepresentation in the

warrant application. Id. at 423. After reviewing the officer’s testimony

explaining that he did not consciously withhold those facts, we found the

defendant did not establish an intentional or material misrepresentation
 19

in the warrant application. Id. at 424–25. The officer testified that when

applying for a warrant,

I look for facts that would give myself a feeling that we had
probable cause to enter a residence; facts that are truthful;
that the magistrate can look at and absorb; and facts that will
suffice a search warrant. It has to be a good lot of facts as far
as I’m concerned for a type of search warrant.

Id. at 425. We reiterated in Paterno that failure to disclose information in

a warrant application can constitute a misrepresentation if the failure to

disclose results in a misconception or, in other words, if the omission

produces the same practical effect as an affirmative statement. Id. at 424.

With these principles and examples in mind, we turn to the three

contentions brought by Baker.

1. Officer Isley’s failure to state Baker was not convicted of a crime

in Nevada. In his affidavit, Officer Isley stated,
On August 30, 2015 Inv. Girsch of the Tri-County Drug
Enforcement Task Force was contacted by Nevada State Patrol
Trooper Tumanuvao reference a traffic stop conducted near
West Wendover, Nevada. Trooper Tuman[u]vao stopped a
vehicle containing Justin BAKER, [and two other males], all of
Waterloo, IA. Nevada State Troopers eventually located
multiple pounds of marijuana and edibles concealed in a
speaker/subwoofer box in the trunk of the vehicle. BAKER
and the other two occupants of the vehicle were placed under
arrest for felony narcotics trafficking charges. During the
course of the investigation it was determined BAKER and the
others were coming from California and headed back to
Waterloo, IA.

Baker argues Isley’s failure to state that Baker was not convicted of a crime

in Nevada was a misrepresentation, and unlike a conviction, an arrest

cannot support probable cause.

As we reasoned in Green, an officer is not required to present all

inculpatory or exculpatory evidence to the issuing judge. 540 N.W.2d at

657. To the contrary, an officer is only required to present the information
 20

that supports a finding of probable cause. Id. If known to the issuing

judge, the fact that Baker was not convicted would not cast doubt on the

separate fact that he was arrested for having multiple pounds of marijuana

in a vehicle driving across Nevada. See id. While information of an arrest

alone would not rise to the level of probable cause, it can, like a defendant’s

history or reputation, be considered as a supporting fact in a warrant

application when it tends to show a nexus between the defendant and

illegal narcotics activity. See Jones v. United States, 362 U.S. 257, 271,

80 S. Ct. 725, 736 (1960) (“[T]hat petitioner was a known user of narcotics

made the charge against him much less subject to s[k]epticism than would

be such a charge against one without such a history.”), overruled on other

grounds by United States v. Salvucci, 448 U.S. 83, 85, 100 S. Ct. 2547,

2549 (1980); State v. Padavich, 536 N.W.2d 743, 750 (Iowa 1995) (“The

affidavit shows facts which, if true, suggest . . . Padavich has a history of,

and reputation for, drug involvement.”); State v. Cassady, 243 N.W.2d

581, 582 (Iowa 1976) (finding issuance of search warrant not assailable on

ground of staleness where affidavit showed facts suggesting defendant’s

continuing involvement in narcotics).

While Baker is correct that an arrest is merely an allegation, and we

do not hold that it stands for anything more, “affidavits of probable cause

are tested by much less rigorous standards than those governing the

admissibility of evidence at trial” and “in judging probable cause[,] issuing

magistrates are not to be confined by niggardly limitations or by

restrictions on the use of their common sense.” State v. Jensen, 189

N.W.2d 919, 925 (Iowa 1971) (quoting Spinelli v. United States, 393 U.S.

410, 419, 89 S. Ct. 584, 590 (1969), abrogated on other grounds by Gates,

462 U.S. at 238, 103 S. Ct. at 2332). Here, the significant information

from the Nevada police was not that Baker had been arrested but that he
 21

had been heading from California back to Waterloo in a vehicle that had

distribution-quantities of marijuana in it. Therefore, we find Isley’s

omission from the warrant application that Baker was not convicted of a

crime connected to his arrest in Nevada was not a material

misrepresentation.

2. Officer Isley’s failure to state Girsch was undercover when Baker

allegedly evaded Girsch. Isley’s affidavit stated,

During the week of April 3rd-9th, 2016 Inv. Girsch was
conducting a separate investigation in the area of Ricker
Street and observed a vehicle, a blue Buick bearing IA plate
EEF303, occupied by Justin BAKER. BAKER looked over at
Inv. Girsch as if concerned of his presence and slowly passed
by 702 Ricker Street. Inv. Girsch believed BAKER was
intended on going to 702 Ricker Street but passed by after
seeing Inv. Girsch in the area. Inv. Girsch then drove around
the block and watched 702 Ricker Street from a concealed
position. Approximately thirty seconds later the blue Buick
pulled into the driveway of 702 Ricker Street and Inv. Girsch
observed BAKER exit the vehicle and go into 702 Ricker
Street, appearing to use a key to access the residence.

At the hearing for the motion to suppress evidence, Girsch testified,

I believe I stuck out in that neighborhood, my vehicle, all kinds
of things. I mean, let me put it this way. People in town, they
know what cars we drive because we have the same cars
forever. They know our faces because we used to work the
streets with them, you know, we dealt with them on the
streets. All those things add up to, I mean . . . it doesn’t take
a rocket scientist to figure out who a cop is in certain
neighborhoods.

Girsch further testified that “[he] strongly believe[d he] was identified [by

Baker]” based on Baker’s “suspicious behavior” of slowing down, seeing

Girsch, leaving the area, and then returning when Girsch appeared to have

left. Based on Girsch’s experience as an officer and as a narcotics

investigator, he believed Baker recognized and avoided him. Again, even

if the warrant application stated Girsch was in plain clothing and driving

an undercover vehicle when this occurred, it would not cast doubt on
 22

probable cause. See Green, 540 N.W.2d at 657. Therefore, we find Isley’s

omission from the warrant application that Girsch was undercover when

Baker avoided him was not a misrepresentation.

3. Officer Isley’s failure to state information demonstrating the

reliability of the anonymous informant. Baker argues the warrant

application contained no evidence that the anonymous tip was reliable. In

Gates, the Supreme Court discussed when an anonymous tip provides

sufficient indicia of reliability to give rise to probable cause. 462 U.S. at

230–41, 103 S. Ct. at 2328–34. In Gates, officers received an anonymous

letter informing them that a man and woman operated a narcotics scheme:

This letter is to inform you that you have a couple in your
town who strictly make their living on selling drugs. They are
Sue and Lance Gates, they live on Greenway, off Bloomingdale
Rd. in the condominiums. Most of their buys are done in
Florida. Sue his wife drives their car to Florida, where she
leaves it to be loaded up with drugs, then Lance flys down and
drives it back. Sue flys back after she drops the car off in
Florida. May 3 she is driving down there again and Lance will
be flying down in a few days to drive it back. At the time Lance
drives the car back he has the trunk loaded with over
$100,000.00 in drugs. Presently they have over $100,000.00
worth of drugs in their basement.

They brag about the fact they never have to work, and make
their entire living on pushers.

I guarantee if you watch them carefully you will make a big
catch. They are friends with some big drugs dealers, who visit
their house often.

Id. at 225, 103 S. Ct. at 2325. Officers investigated the tip and discovered

Lance Gates had made an airline reservation flying from Chicago to

Florida. Id. at 226, 103 S. Ct. at 2325–26. Officers surveilled the flight

and Lance’s subsequent movements once he arrived in Florida. Id. at 226,

103 S. Ct. at 2326. They discovered Lance went to a room registered to

Susan Gates, and the following day Lance and an unidentified woman

drove northbound in the Gateses’ vehicle. Id. Based on that information,
 23

which corroborated the anonymous tip, officers submitted an affidavit for

a warrant together with the anonymous letter. Id. The judge granted a

search warrant for the Gateses’ house and automobile. Id. Upon

executing the warrant, officers found over 350 pounds of marijuana,

weapons, and other contraband. Id. at 227, 103 S. Ct. at 2326.

The Supreme Court said that while the letter alone would not

provide a basis for probable cause to believe contraband would be found

in the Gateses’ car and home, applying a totality-of-the-circumstances

analysis, the letter accompanied by the independent police work did

provide such a basis. Id. at 243–44, 103 S. Ct. at 2335. The Court

reasoned that the police investigation without the anonymous tip

suggested that the Gateses were involved in drug trafficking. Id. at 243,

103 S. Ct. at 2335. Further, the Court relied on the fact that officers

corroborated information in the anonymous letter with an independent

investigation. Id. at 244, 103 S. Ct. at 2335. Lastly, the Court said it

found the letter supported probable cause because it contained a range of

details relating to facts and future actions not easily predicted. Id. at 245–

46, 103 S. Ct. at 2335. Therefore, the Court held the judge issuing the

warrant had a substantial basis for concluding that probable cause to

search the Gateses’ home and car existed. Id.

In the present case, the anonymous tip did not give as much detailed

information as the tip officers received in Gates. See id. at 225, 103 S. Ct.

at 2325. According to Isley, the tipster said only that

they had been over at 702 Ricker where they stated that
Justin [Baker] and Shana [Caldwell] were living. In the past
couple days they had been over there and saw that there was
a distribution amount of marijuana inside the house, and they
had called, and while speaking with them they said that they
had just supposedly got back into town with a shipment of
more marijuana.
 24

This tip shows far less inside knowledge when compared to the tip in

Gates. See id.

However, like Gates, officers here also conducted an independent

investigation that corroborated the tipster’s information that Baker and

Caldwell were dealing drugs from their home. See id. at 243–45, 103 S. Ct.

at 2335. Girsch received information that Baker was arrested in Nevada

with a distributional amount of marijuana. He later noticed Baker act

suspiciously when Baker saw him on-duty near 702 Ricker Street. Then,

within twenty-four hours of receiving the anonymous tip, Girsch and Isley

witnessed Baker leave his house, meet people in an alley, and engage in

what officers believed to be a hand-to-hand narcotics deal. Finally, when

conducting a traffic stop based on the hand-to-hand drug deal, officers

recovered a baggie of marijuana Baker threw from his car as he stopped.

Based on the totality of the circumstances, we conclude the judge did not

err in relying on the tip when determining whether there was sufficient

probable cause to support the search warrant.

E. Challenge to Probable Cause with Extracted Inadmissible

Factors. Baker asserts that without the marijuana and misinformation,

the warrant application is based solely on the hand-to-hand drug

transaction, which is not sufficient to establish probable cause. As

previously discussed, we find neither the marijuana recovered from the

traffic stop nor the information provided by Isley in the warrant application

must be extracted. Therefore, considering all of the information that the

district court considered, we assess whether the issuing judge had a

substantial basis for concluding probable cause existed. McNeal, 867

N.W.2d at 100.

The test we apply is “whether a person of reasonable prudence would

believe a crime was committed on the premises to be searched or evidence
 25

of a crime could be located there.” Gogg, 561 N.W.2d at 363 (quoting Weir,

414 N.W.2d at 330). Examining the totality of the circumstances, we find

the judge had a substantial basis for issuing the warrant. Officers received

information from two sources—an out-of-state law enforcement officer and

an anonymous informant—that Baker was involved in narcotics

trafficking. Officers watched Baker and found he acted suspiciously when

near the house where he kept the marijuana. While surveilling Baker,

officers witnessed what they believed to be a hand-to-hand drug

transaction. Then when initiating a traffic stop to investigate the drug

transaction, Baker threw a bag of marijuana out of the window of his

vehicle. Officers also recovered $200 in twenty-dollar bills from Baker’s

person, and while this would certainly not be indicative of narcotics

dealing, it is consistent with it.

Based on these facts, when viewed under a totality of the

circumstances, it is not unreasonable that the issuing judge found

probable cause to search 702 Ricker Street based on narcotics

distribution.

V. Whether Baker’s Guilty Pleas Were Involuntary.

While Baker argues his guilty pleas were involuntary, his argument

is under the framework of ineffective assistance because he did not

preserve error. His argument is that counsel was ineffective for failing to

file a motion to suppress evidence from the April 18 traffic stop, which

gave rise to one of the charges of driving while license barred and to the

possession of marijuana charge. The argument continues that if counsel

had filed a motion to suppress for those charges, the trial court would have

granted the motion, resulting in no evidence to prove Baker was either

driving without a license or in possession of marijuana on the day of the

traffic stop.
 26

As we found above, the district court did not err in determining the

officer had a reasonable suspicion to conduct the traffic stop. Therefore,

counsel’s failure to file a motion to suppress did not prejudice Baker. See

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (“To establish [a] claim

of ineffective assistance of counsel, [a defendant] must demonstrate (1) his

trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.” (citing Strickland v. Washington, 466 U.S. 668, 687–

88, 104 S. Ct. 2052, 2064–65 (1984))).

VI. Disposition.

We find the stop of Baker’s vehicle was supported by reasonable

suspicion and the warrant to search 702 Ricker Street was supported by

probable cause. We further find Baker’s counsel was not ineffective.

Finally, we let the court of appeals decision stand as the final decision of

this court as to whether the district court abused its discretion when it

sentenced Baker. Therefore, we affirm the decision of the court of appeals

and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

All justices concur except McDonald, J., who takes no part.