IN THE COURT OF APPEALS OF IOWA
No. 18-2249
Filed December 18, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JHAMOND McMULLEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey Farrell (motion
to suppress) and David May (bench trial and sentencing), Judges.
Jhamond McMullen appeals his convictions, sentences, and judgment
following a bench trial and verdict finding him guilty of several drug-related
offenses. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Mary K.
Conroy, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ. May, J. takes
no part.
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DOYLE, Presiding Judge.
Jhamond McMullen appeals his convictions, sentences, and judgment
following a bench trial and verdict finding him guilty of six drug-related
offenses: two counts of possession of a controlled substance with the intent to
deliver as a second or subsequent offender and habitual offender; two counts of
failure to possess a tax stamp as a habitual offender; possession of a controlled
substance, third offense; and unlawful possession of a prescription drug.
McMullen contends the district court erred in four respects, asserting: (1)
there was not probable cause for the search of his vehicle and his motion to
suppress should have been granted, (2) the evidence was insufficient to show he
knowingly possessed controlled substances and prescription drugs, (3) the court
erred in imposing fines upon him in its sentencing order, and (4) the court erred in
failing to determine his reasonable ability to pay restitution. The State concedes—
and we agree upon our review—that the court erred in not suspending the fines in
its sentencing order. We also find the district court did not follow the statutory
procedures for ordering restitution. So we vacate those portions of the sentencing
order and remand for resentencing consistent with this opinion. Finding no merit
in McMullen’s other two contentions, we affirm McMullen’s convictions, sentences,
and judgments in all other respects.
I. Background Facts and Proceedings.
Ankeny Police Officer Brice Van Drimmelen stopped a car after he observed
that “it was dark out and the headlights were not on.” There were two people in
the car. McMullen, owner of the car, was the passenger and Michaela Bush was
driving.
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When he got to the driver’s side door, Officer Van Drimmelen smelled the
odor of marijuana coming from inside the car. Officer Van Drimmelen then
requested backup. Officer Tony Higgins arrived at the scene and walked up to
McMullen’s car. Officer Higgins’s bodycam recorded his interactions, and the
video was admitted into evidence at both the motion-to-suppress hearing and the
trial. Officer Van Drimmelen asked the driver why the car smelled of marijuana,
and the driver responded she did not know. Officer Van Drimmelen informed the
driver that because he smelled marijuana he had probable cause to search the
vehicle, and the officer had the driver step out of the car and sit in his squad car.
While Officer Van Drimmelen was assisting the driver from the stopped car,
Officer Higgins watched McMullen from the passenger-side window, shining his
flashlight into the vehicle onto McMullen’s hands resting on the dashboard. Shortly
after the driver got out of the car, McMullen moved his hands from the dashboard.
Officer Higgins immediately directed McMullen to keep his hands where Officer
Higgins could see them. Almost twenty seconds later, McMullen moved his left
hand down the dashboard and out of view for a second, and Officer Higgins had
McMullen get out of the car. Officer Higgins asked McMullen if he had anything
that would stick him, poke him, or bite him or illegal on his body. McMullen
answered, “No, I believe not.”
Officer Higgins directed Officer Van Drimmelen to search McMullen, and
Officer Van Drimmelen found a plastic baggie full of cash in McMullen’s pocket.
McMullen said it was $1500 and he might be getting a house. The officers asked
McMullen when he had last smoked marijuana, and he denied smoking and stated
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he did not know why the officer smelled marijuana. After they searched him, the
officers placed McMullen into the back of Officer Higgin’s squad car.
The officers then searched McMullen’s car. In the passenger door
compartment, the officers found a one-quart baggie of marijuana, a butane torch,
and a digital scale that appeared to have some drug residue on it. In the center
console cup holder, the officers found a red Solo cup with what they believed was
loose marijuana. Inside the console, the officers found a zippered makeup bag
containing a rainbow-colored grinder and two marijuana pipes. There was also a
medium-sized orange prescription bottle that had no label but contained white-
orange amphetamine capsules and atomoxetine capsules, both prescription but
non-scheduled controlled substances in Iowa. A glass pipe was found in the
driver-side door compartment.
The officers also found a blue backpack on the front-passenger-side floor
full of miscellaneous items. In its main compartment, the officers found, among
other things, five baggies of marijuana, a box with baggies in it, butane fuel, a
digital scale cover, lotion, bars of soap, and air freshener. In the front compartment
of the backpack, the officers found eight blister packs containing sixty-seven white
tablets consistent with etizolam; one single blue amphetamine tablet; and twenty
small, multi-colored squares of blotter paper containing 2C-B, a drug similar to
LSD.
Bush and McMullen were questioned separately at the scene, and each
denied knowing of or possessing the drugs found in the car and backpack. They
also provided differing accounts of prior activities that day. McMullen told the
officer he had loaned his car to another friend that morning, and the friend dropped
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the vehicle off to Bush a couple of hours before the traffic stop occurred. McMullen
told the officers that anything illegal in the car belonged to his friend. Bush stated
she had been with McMullen since that morning, and they “hung out” and spent
time driving around in McMullen’s car. Bush said the backpack and the makeup
bag were not hers.
McMullen was arrested and charged with various offenses, including
possession of a controlled substance and unlawful possession of a prescription
drug. The State then filed an eight-count trial information accusing McMullen of
possession of a controlled substance with intent to deliver as a habitual offender,
among other things.
McMullen moved to suppress the evidence obtained from the search of his
car. He asserted Officer Van Drimmelen’s claim to have smelled marijuana lacked
credibility and therefore there was not probable cause to support the search.
Following a hearing, the district court denied McMullen’s motion. Relevant here,
the court found Officer Van Drimmelen’s testimony credible:
In this case, Officer Van Drimmelen testified that he smelled
marijuana coming from the car. He has been trained on the distinct
smell of marijuana and has experience identifying the odor of
marijuana during his two years as an officer. [McMullen] criticized
the officer that he could not better describe the smell of marijuana,
but, the officer testified that, from his standpoint, marijuana smells
like marijuana. The same is true with many distinct smells, in that it
may be difficult to compare one odor to another odor or to describe
it in detail. [McMullen] criticized the officer that he could not
distinguish between raw and burnt marijuana, but he did not present
any evidence to show that the distinction is material. [McMullen]
argued that the driver denied smelling marijuana, but she also stated
she did not know what marijuana smelled like. Even though she was
ultimately released by the officers, that does not mean that they
believed everything she said [w]as the truth. Their decision to
release her was based on defendant owning the car—not what she
told officers about smelling marijuana.
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Officer Van Drimmelen’s testimony was otherwise logical and
credible. He stopped the car for a legitimate reason because it did
not have its lights on after dark. There is no indication that he knew
the occupants or stopped the car for any other reason. He smelled
marijuana after the driver rolled down her window and immediately
requested a second unit as backup. He has training and experience
in detecting the smell of marijuana. There is no reason to believe
that he simply made up the smell of marijuana to justify a search.
There are no good grounds to discount his testimony.
After a bench trial, the district court found McMullen guilty on six of the eight
counts:
Count I: Possession of a Controlled Substance With Intent to
Deliver, to wit: 4-bromo-2,5-dimethoxyphenethylamine (2C-B).
Count II: Failure to Affix Tax Stamp, to wit: Ten or More
Dosage Units of 4-bromo-2,5-dimethoxyphenethylamine (2C-B).
Count III: Possession of a Controlled Substance with Intent to
Deliver, to wit: marijuana.
Count IV: Failure to Affix Tax Stamp, to wit: 42.5 grams or
more of marijuana.
Count VII: Possession of a Controlled Substance, to wit:
Amphetamine.
Count VIII: Unlawful Possession of a Prescription Drug, to wit:
Atomoxetine.
The district court entered its sentencing order following a December 2018
sentencing hearing. Relevant here, the court’s sentencing order did not check the
box to indicate fines had been suspended, contrary to the court’s intent. At the
end of the order, the court costs were taxed to McMullen.
II. Discussion.
McMullen appeals. He contends the district court erred in denying his
motion to suppress and in finding substantial evidence he knowingly possessed
controlled substances and prescription drugs. He also challenges portions of the
sentencing order.
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A. Motion to Suppress.
Because this case involves the constitutional right to be free from
unreasonable searches and seizures, our review of the district court’s suppression
ruling is de novo. See State v. Storm, 898 N.W.2d 140, 144 (Iowa 2017); State v.
Davis, 679 N.W.2d 651, 656 (Iowa 2004). This requires “an independent
evaluation of the totality of the circumstances” of the entire record. Storm, 898
N.W.2d at 144 (citation omitted). But because the district court had a chance to
assess the credibility of the witnesses, we give the court’s fact-findings deference,
though we are not bound by those findings. See id.
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). One of those exceptions is probable cause coupled with
exigent circumstances, termed the automobile exception when applied to motor
vehicles. See Storm, 898 N.W.2d at 145. The Iowa Supreme Court has held a
trained officer’s detection of a distinctive enough odor, by itself or when
accompanied by other facts, may establish probable cause. See State v. Watts,
801 N.W.2d 845, 854 (Iowa 2011); see also State v. Eubanks, 355 N.W.2d 57, 59
(Iowa 1984) (“[T]he patrolman clearly had sufficient probable cause to search the
vehicle and its contents. The patrolman smelled the odor of marijuana drifting from
the car when he approached defendant, who was seated behind the steering
wheel. The odor of that controlled substance in the automobile gave the patrolman
reasonable cause to conduct a comprehensive search of the car.”).
McMullen argues there is insufficient evidence that Officer Van Drimmelen
was qualified to identify the smell of marijuana and therefore there was no basis
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for probable cause. He takes particular issue that Officer Van Drimmelen testified
that “[m]arijuana smells like marijuana.” McMullen also points out Officer Van
Drimmelen had only been an officer for little over a year and only had a small
amount of training related to narcotics.
Smell is a sense that is hard describe. As one scholar noted, “The sense
of smell is one that by its very nature requires permitting a witness to testify in the
form of an opinion. It is virtually impossible to verbally describe a smell except in
terms of conclusions rather than specific identifiable facts.” Barbara E. Bergman
et al., 3 Wharton’s Criminal Evidence, Smell § 12:11 (15th ed. 2019). “Most
persons would probably find it difficult to describe the odor of a rose, whiskey, beer,
or limburger cheese, but this difficulty could scarcely be regarded as affecting the
value of their testimony that they were familiar with and recognized the particular
odor.” People v. Reed, 164 N.E. 847, 850 (Ill. 1928).
A similar argument was made in United States v. Arrasmith, 557 F.2d 1093,
1094 (5th Cir. 1977), where a border patrol agent testified “marijuana smells like
marijuana.” The Fifth Circuit, affirming Arrasmith’s conviction, observed:
Arrasmith’s real objection, of course, is not to the tautological notion
that marijuana smells like marijuana; whatever else marijuana does
or does not smell like, it certainly smells like itself. But the statement
that “marijuana smells like marijuana” may also convey the meaning
that the odor of marijuana is distinctive and easily recognized. To
the extent that the district judge may have accepted that meaning,
however, he had an ample evidentiary basis for doing so, for the
agent had so testified. Litigation could not go forward if we were to
adopt the general principle that a factfinder who accepts testimony
as true thereby takes improper judicial notice of its truth.
Whether the agent smelled marijuana was a factual question
relevant to the probable cause issue. In resolving that factual
question, the district court relied upon the testimony of an
experienced border patrol agent who said he had smelled marijuana
many times. The court neither limited Arrasmith’s cross-examination
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of the agent nor prevented him from introducing any relevant
evidence. The district court conscientiously found the facts on the
basis of the evidence and did not take into account impermissible
considerations.
Arrasmith, 557 F.2d at 1095.
The same is true here. While Officer Van Drimmelen could have described
the smell of marijuana in other ways, McMullen points to no authority requiring the
officer to describe the odor with the specificity of a sommelier. The district court
heard the officer’s testimony about his qualifications and his knowledge on the
subject, and the court found Officer Van Drimmelen “has training and experience
in detecting the smell of marijuana.” The court determined Officer Van Drimmelen
was credible and believed the officer’s qualifications, experience, and actions
supported the officer’s testimony that he smelled the odor of marijuana. Upon our
de novo review of the record, we agree with the district court that Officer Van
Drimmelen was qualified to detect the distinctive odor of marijuana. So the officer’s
detection of the marijuana odor established probable cause for the search. We
affirm on this issue.
B. Sufficiency of the Evidence.
“Sufficiency of evidence claims are reviewed for correction of errors at law,
and we will uphold a verdict if substantial evidence supports it.” State v. Ramirez,
895 N.W.2d 884, 890 (Iowa 2017). If the evidence viewed in the light most
favorable to the State “can convince a rational jury that the defendant is guilty
beyond a reasonable doubt,” the evidence is considered substantial. Id. (citation
omitted).
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“Possession may be actual or constructive.” State v. Reed, 875 N.W.2d
693, 705 (Iowa 2016) (footnote omitted). Here, the State relies on a theory of
constructive possession, which can “be proved by inferences.” Id. To establish
constructive possession, the evidence must show the defendant “has knowledge
of the presence of the controlled substance and has the authority or right to
maintain control of it.” Id. Although a defendant’s proximity to the contraband is
pertinent, it “is not enough to show control and dominion.” Id. (citation omitted). In
determining whether the defendant possessed contraband discovered in jointly
occupied structures, there are several nonexclusive factors to consider:
(1) incriminating statements made by a person; (2) incriminating
actions of the person upon the police’s discovery of a controlled
substance among or near the person’s personal belongings; (3) the
person’s fingerprints on the packages containing the controlled
substance; and (4) any other circumstances linking the person to the
controlled substance.
Id. at 706 (citation omitted). But mere suspicion, speculation, or conjecture cannot
establish guilt. See id.
Viewing the evidence in the light most favorable to the State, we find
substantial evidence supports the district court’s determination that McMullen had
constructive possession of the contraband in his car. The pieces of evidence
supporting the guilty verdicts are not separate pieces of evidence to be viewed in
isolation; they are to be considered as a whole. See id. at 707. Here, the factors
supporting that McMullen possessed the contraband are as follows. The car
belonged to McMullen. All of the contraband, and particularly the backpack, was
within McMullen’s reach. McMullen claimed he did not know the contraband was
in the vehicle and stated it must have belonged to his drug-dealing friend. Yet a
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reasonable person would have observed the open, exposed cup in the console
containing marijuana. Furthermore, his story that he had loaned the car to a friend
conflicted with Bush’s account. Add to McMullen’s less than credible explanation
for how the contraband came to be in the car, McMullen’s furtive movements, the
large amount of cash on his person in a baggie, and Officer Higgins’s observation
of marijuana shake1 on the belly portion of McMullen’s shirt, a rational fact-finder
could find McMullen knew of the presence of the controlled substance in the car
and had the authority or right to maintain control of it. There is substantial evidence
in the record that could convince a fact-finder that McMullen is guilty beyond a
reasonable doubt. So we affirm the district court’s findings of guilt.
C. Sentencing Order.
“We review the district court’s restitution order for errors of law.” State v.
McMurry, 925 N.W.2d 592, 595 (Iowa 2019) (citation omitted). We also review
claims of an illegal sentence for correction of errors at law. See State v. Petty, 925
N.W.2d 190, 195 (Iowa 2019). Because McMullen challenges his sentence on
constitutional grounds, our review is de novo. See id.
The State concedes McMullen’s sentencing order imposing fines rather
than checking the box to suspend the fines was an inadvertent error by the court,
and the State agrees remand for entry of an order nunc pro tunc is appropriate.
McMullen argues he was ordered to pay court costs without a showing that he had
1 The officer explained marijuana shake “is small particles of the marijuana leaf or
may be stems that are, you know, spread about. We call it shake, but it’s just
actual particles of marijuana leaves.” “Typically, when somebody gets marijuana
shake around or somewhere, it’s when they’re dividing up the leaves to prepare,
like, to smoke it, or to break it up, you know, different pieces to sell, and that’s
usually how that happens. But I’m usually not there when it’s being done.”
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the reasonable ability to repay those obligations. In his view, the district court had
an obligation to make a determination regarding his reasonable ability to pay
restitution before issuing a plan of restitution, citing the recent Iowa Supreme Court
case State v. Albright, 925 N.W.2d 144, 158-61 (Iowa 2019). The State insists
McMullen’s restitution challenge is premature because the district court has not
entered a final order setting the amount of restitution for court costs and attorney
fees. We disagree.
Under Albright, because the total amount of costs and fees were not known
when the sentencing order was entered, the court could not have considered
McMullen’s reasonable ability to pay. See 925 N.W.2d at 161-63. We must
therefore vacate the portion of the sentencing order addressing restitution and
remand the case to the district court to impose restitution consistent with the
opinion. See, e.g., State v. Headley, 926 N.W.2d 545, 548 (Iowa 2019). Because
we are vacating the sentencing order and remanding to the district court, we direct
the district court to also make the appropriate correction to the suspension of fines
consistent with that court’s intent at that time.
III. Conclusion.
For these reasons, we vacate the portions of the district court’s sentencing
order concerning the suspension of fines and restitution, and we remand the case
to the district court to impose restitution consistent with Albright and to correct the
lack of suspension of fines. We affirm McMullen’s convictions, sentences, and
judgments in all other respects.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.