State of Iowa v. Kevin Leroy Baudler

IN THE COURT OF APPEALS OF IOWA

No. 15-1050
Filed January 25, 2017

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KEVIN LEROY BAUDLER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Madison County, Gary G. Kimes,

Judge.

In this interlocutory appeal, Kevin Leroy Baudler challenges the district

court’s denials of his motion to suppress, motion to extend time for filing pretrial

motions, and amended motion to suppress. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.

Christine E. Branstad and Nathan A. Olson of Branstad Law, PLLC, Des

Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

Heard by Danilson, C.J., and Doyle and McDonald, JJ.
 2

DANILSON, Chief Judge.

In this interlocutory appeal, Kevin Leroy Baudler challenges the district

court’s denials of his motion to suppress, motion to extend time for filing pretrial

motions, and amended motion to suppress in three related cases.1 We conclude

the search of Baudler’s truck was illegal and the district court erred in overruling

the motion to suppress. We conclude the motion to extend time in FECR108037

was unnecessary and moot. We further conclude the district court abused its

discretion in denying Baudler’s motion to extend the time for filing the amended

motion to suppress in cases FECR108017 and FECR108018, but we affirm the

district court’s order denying the amended motion to suppress in all three actions.

We therefore remand for an order suppressing all evidence obtained from the

search of Baudler’s truck and for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

On January 7, 2015, Assistance Chief Terry Miller, Deputy Gary Davis,

and Officer Todd Halverson executed a search warrant for an outbuilding and a

fifth-wheel camper located on a property in Winterset, Iowa. The search warrant

sought a 2009 Yamaha Rhino utility task vehicle (UTV) and a CAT skid loader

believed to be stolen, and sought permission to search the camper for

“documentation of ownership and keys and wench remote for [the] Yamaha UTV

and skid loader.” The application for search warrant was supported by

1
The three related cases are FECR108037, charging one count of second-degree theft;
FECR108018, charging two counts of first-degree theft and one count of manufacture,
deliver, or possess with intent to manufacture or deliver methamphetamine; and
FECR108017, charging one count of first-degree theft.
 3

information provided by a confidential informant (CI) “detailing the theft and

location of a stolen 2009 Yamaha Rhino and CAT skid loader.”

The property was owned by Rita Blackford, who permitted Baudler to

store his belongings and park his camper there in exchange for his help in

upkeep of the property. Upon arriving at the property, the officers first spoke with

Blackford and presented the search warrant. The officers then searched the

outbuilding, discovered the skid loader, and confirmed the skid loader was stolen.

Because the officers did not locate the UTV inside the outbuilding, they spoke

with Blackford again and asked where the UTV was located. Blackford gave

consent to search the entire property. The UTV was located inside a barn on the

property where officers also discovered a stolen Kubota lawn tractor and a large

number of cordless drills. Deputy Davis testified the tools were not confirmed

stolen at that time.

While the officers were searching the property, Baudler arrived in a truck.

Baudler parked and exited the truck before being placed under arrest by Deputy

Davis for possession of stolen property. The officers testified while Baudler was

moving in and out of the truck, they could see cordless drills and equipment in

the back seat of the vehicle.

In an incident report attached to the minutes of testimony, Officer

Halverson stated he asked Baudler where the key to the lawn tractor was

located, and Baudler informed him where the lawn tractor key could be found in

the camper and advised Officer Halverson the key to the UTV was in his pocket.
 4

All three officers testified at the hearing on Baudler’s motion to suppress.

Deputy Davis testified he believed the lawn tractor key was missing and that

Baudler “wasn’t sure whether it was on his key ring or inside of the vehicle.”

Officer Halverson testified he was able to locate the lawn tractor key inside

the camper based on Baudler’s explanation of where it would be found. In

regard to the key to the skid loader, Officer Halverson testified it was not located

at the scene and was later found on Baudler’s person at the jail. There was

some potential inconsistency in the officers’ testimony as Assistant Chief Miller

testified they were looking for the key to the UTV, and he said it was found on

Baudler’s person at the jail.

Baudler’s son also arrived at the property while the search warrant was

being executed. Baulder’s son stated he had a key to the truck and permission

to take it, and he asked that he be allowed to take the vehicle. Officer Halverson

testified Baudler’s son was acting “hinky,” and Assistant Chief Miller testified

Baulder’s son was trying to get into the vehicle. Assistant Chief Miller testified

they did not permit Baudler’s son to take the truck and informed him they needed

to look through the vehicle before he took it.

After Deputy Davis left the scene with Baudler, Officer Halverson and

Assistant Chief Miller searched the truck. The officers found a glass pipe and

methamphetamine inside a sunglasses case, and the search was stopped. The

officers offered differing reasons for the search. Deputy Davis testified when he

left the property it was his intention that the truck would be impounded.

In contrast, in his incident report Officer Halverson stated they “were

requested by Deputy Davis to search the vehicle because he stated the plates
 5

did not come back to the proper truck.” At the hearing on the motion to suppress,

Officer Halverson testified he searched the vehicle because Deputy Davis

requested the officers to do so. He stated after they discovered the

methamphetamine they contacted Deputy Davis and informed him of what they

had found, and the search was stopped. Officer Halverson testified it was his

understanding the truck was going to be impounded.

And yet another explanation from Assistant Chief Miller, who testified:

Deputy Davis told me he needed [the truck] searched incident to
arrest. At that point the truck was locked and I told [Baudler’s son]
that we needed to look through the vehicle before he took it. . . .
After [Deputy Davis] told us—asked us to search the vehicle
incident to arrest, [Baudler’s son] unlocked it for me. I stood in the
door, kind of looked in the vehicle and I called Officer Halverson
over to assist me with the search. Almost within seconds he found
some methamphetamine and a pipe . . . . At that point I told Officer
Halverson that I saw numerous tools, Milwaukee tools, plus like a
collection of vehicle titles. I told him about that. Then I went back
to my car, called Deputy Davis and told him we found what we
believed was methamphetamine. He said we were going to
impound the vehicle, so we stopped the search.

The officers testified Blackford had stated she wanted all stolen equipment

removed and she did not want Baudler or his son on her property. But Deputy

Davis acknowledged Blackford never specifically said she wanted the truck to be

removed from her property.

On February 20, 2015, Baudler was charged by trial information in three

separate cases for three counts of first-degree theft, class “C” felonies, in

violation of Iowa Code sections 714.1(1) and 714.2(1) (2015); the manufacture,

delivery, or possession with intent to manufacture or deliver methamphetamine, a

class “C” felony, in violation of Iowa Code sections 124.401(1)(c)(6) and 124.413;
 6

and second-degree theft, a class “D” felony, in violation of Iowa Code sections

714.1(4) and 714.2(2).

On March 16, 2015, Baudler filed a motion to suppress, challenging the

search of his truck. A hearing was held on the motion to suppress on April 14.

On April 17, Baudler filed a combined amended motion to suppress—challenging

representations regarding the CI contained in the search warrant application—

and motion to extend the deadlines contained in Iowa Rule of Criminal Procedure

2.11 to allow for the filing of the amended motion. In an April 20 order, the

district court overruled the motion to suppress “based upon the record made and

. . . adopt[ing] the resistance of the State.” On April 27, Baudler filed a motion to

enlarge, amend, and reconsider the district court’s overruling of the motion to

suppress. On May 19, a hearing was held on the amended motion to suppress,

the motion to extend time, and the motion to enlarge, amend, and reconsider.

The district court orally overruled the motions in their entirety at the conclusion of

the hearing and also by written order filed May 19. Baudler now appeals.

II. Scope and Standard of Review.

Baudler claims the district court should have granted his motion to

suppress and amended motion to suppress on federal and state constitutional

grounds. Therefore, our review is de novo. State v. Pals, 805 N.W.2d 767, 771

(Iowa 2011). “This review requires ‘an independent evaluation of the totality of

the circumstances as shown by the entire record.’ The court gives ‘deference to

the factual findings of the district court due to its opportunity to evaluate the

credibility of the witnesses, but [is] not bound by such findings.’” Id. (citations

omitted). With respect to the issue of probable cause to issue a search warrant,
 7

we “merely decide whether the issuing judge had a substantial basis for

concluding probable cause existed.” State v. Gogg, 561 N.W.2d 360, 363 (Iowa

1997). “[W]e do not independently determine probable cause.” State v. McNeal,

867 N.W.2d 91, 100 (Iowa 2015).

“We review a district court’s good cause determination for extending a

motion deadline for an abuse of discretion.” State v. Jordan, 779 N.W.2d 751,

754 (Iowa 2010). “An abuse of discretion will not be found unless ‘such

discretion was exercised on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’” Id. (citations omitted).

III. Timeliness of Appeal.

The State contends this court lacks jurisdiction to hear Baudler’s claim

regarding the motion to suppress because the motion to enlarge, amend, and

reconsider did not toll the thirty-day time period for filing a notice of appeal

pursuant to Iowa Rule of Appellate Procedure rule 6.101(1)(b). However, the

motion to enlarge, amend, and reconsider was timely filed within fifteen days of

the court’s order overruling the motion to suppress. See Iowa Rs. Civ. P.

1.904(2), 1.1007. Although the motion to enlarge, amend, and reconsider asked

the court to address issues raised in the amended motion to suppress, it also

requested the court amend its decision regarding the issues raised in the motion

to suppress.

A motion to enlarge, amend, and reconsider is proper and will toll the time

for appeal “when used to obtain a ruling on an issue that the court may have

overlooked, or to request the district court enlarge or amend its findings when it

fails to comply with rule 1.904(1).” Baur v. Baur Farms, Inc., 832 N.W.2d 663,
 8

668-69 (Iowa 2013). Here, in its order overruling the motion to suppress, the

district court stated only: “This court overrules the defendant’s motion to

suppress based upon the record made and hereby adopts the resistance of the

State.” The order was not in compliance with rule 1.904(1), which requires “[t]he

court trying an issue of fact without a jury . . . [to] find facts in writing, separately

stating its conclusions of law, and direct an appropriate judgment.”2 Because the

district court failed to recite any findings of facts and summarily denied the

motion by reference to the State’s resistance, Baudler’s motion to enlarge,

amend, and reconsider was properly filed and tolled the time for appeal. See

Iowa R. App. P. 6.104(1)(b)(2) (“An application for interlocutory appeal must be

filed within 30 days after entry of the challenged ruling or order. However, if a

motion is timely filed under Iowa R. Civ. P. 1.904(2), the application must be filed

within 30 days after the filing of the ruling on such motion.”).

We conclude the appeal from the district court’s denial of the motion to

suppress was timely filed and we may consider the issues asserted.

IV. Motion to Suppress.

The parties do not dispute the search warrant did not authorize the search

of Baudler’s truck and the search warrant did not encompass or reference stolen

tools. Baudler contends the district court should have granted his motion to

suppress because the warrantless search of his truck by officers was

unconstitutional in that it was not supported by probable cause and no

exceptions to the Fourth Amendment warrant requirement apply.

2
Iowa Rule of Criminal Procedure 2.11(8) states, “A pretrial motion shall be determined
without unreasonable delay. Where factual issues are involved in determining a motion,
the court shall state its essential findings on the record.”
 9

“Warrantless searches and seizures are per se unreasonable, unless one

of the few carefully draw exceptions to the warrant requirement exists.” State v.

Freeman, 705 N.W.2d 293, 297 (Iowa 2005). “These exceptions include: (1)

search based on probable cause coupled with exigent circumstances, (2)

consent search, (3) search incident to a lawful arrest, and (4) search of items in

plain view.” State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011). Another “well-

recognized exception to the warrant clause is a vehicle inventory search.” State

v. Huisman, 544 N.W.2d 433, 436 (Iowa 1996). “The State has the burden to

prove by a preponderance of the evidence that a recognized exception to the

warrant requirement is applicable.” Freeman, 705 N.W.2d at 297.

Here, the State contends the search of the truck was proper because it

was based on probable cause coupled with exigent circumstances and the

inventory exception applies.

A. Probable Cause and Exigent Circumstances. “The [United States]

Supreme Court has recognized a ‘specifically established and well-delineated’

exception to the warrant requirement for searches of automobiles and their

contents.” State v. Allensworth, 748 N.W.2d 789, 792 (Iowa 2008). In

determining whether the probable-cause-and-exigent-circumstances exception

applies, “[w]e have previously applied the ‘inherent exigency’ rationale for

warrantless probable-cause searches and seizures of readily mobile vehicles.”

Id. at 795 (citing State v. Cain, 400 N.W.2d 582, 585 (Iowa 1987) (“[T]he

exigency requirement is always satisfied by a vehicle’s inherent mobility.”)).

“[U]nder the automobile exception which was created in recognition of the

decreased expectation of privacy accorded to a vehicle and the exigencies
 10

associated with it, a warrantless search of a vehicle may be made if the

authorities have probable cause.” State v. Lam, 391 N.W.2d 245, 248 (Iowa

1986).3 Thus, although the inherent mobility of a vehicle may fulfill the exigency

requirement, officers must still have probable cause to effectuate a warrantless

search.

Probable cause exists to search a vehicle “when the facts
and circumstances would lead a reasonably prudent person to
believe that the vehicle contains contraband. The facts and
circumstances upon which a finding of probable cause is based
include the ‘sum total . . . and the synthesis of what the police
[officer has] heard, what [the officer] knows, and what [the officer]
observe[s] as [a] trained officer[].’”

State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006) (citations omitted). “The

assessment of probable cause ‘is based on probabilities and not mere suspicion,’

but it need not ‘rise to the level of certainty beyond a reasonable doubt.’” Id.

(citation omitted).

The State argues the officers had probable cause to search Baudler’s

truck (1) to search for the key to the stolen lawn tractor; (2) because officers had

probable cause to believe the truck contained stolen cordless drills and

equipment; (3) because additional information provided by Blackford and the CI

led officers to believe Baudler had stolen items on different occasions and

brought the items to Blackford’s property; and (4) due to Baudler’s son’s

suspicious behavior. However, we conclude there was only a suspicion the tools

seen in the truck were stolen, and the other facts did not establish probable

cause to search the truck.

3
We acknowledge the automobile exception has been subject to some criticism by our
supreme court in special concurrences filed in State v. Gaskins, 866 N.W.2d 1, 17, 35-
38 (2015).
 11

First, the officers provided conflicting testimony about which key was

being sought and where Baudler advised the officers the key was located. Only

Deputy Davis testified Baudler informed the officers the missing key (whether it

be to the lawn tractor, skid loader, or UTV, as the record is unclear) might be

inside the truck. Deputy Davis was asked what Baudler told him about the lawn

tractor key, and Deputy Davis testified, “He wasn’t sure whether it was on his key

ring or inside the vehicle.” But Officer Halverson testified he located the lawn

tractor key in the camper where Baudler informed him it would be found. Officer

Halverson believed the key to the skid loader was the missing key. Officer

Halverson stated both in his incident report and at the hearing on the motion to

suppress that Baudler informed the officers the missing key was located on his

person. A key was, in fact, found on Baudler’s person during a search conducted

at the jail.

Second, the officers only had a suspicion the cordless drills and

equipment viewed inside Baudler’s truck might have been stolen. The search

warrant did not seek stolen cordless drills, and the officers did not confirm the

cordless drills found on the property were stolen. There was no testimony the

tools were marked or reflected the identity of any owner other than Baudler.

Thus, the fact that Baudler also had a number of cordless drills and equipment

inside his vehicle did not give rise to probable cause, particularly since Baudler

was in the construction business. Moreover, the information provided by

Blackford and the CI did not create a nexus between the criminal activity and

Baudler’s truck. See Hoskins, 711 N.W.2d at 726 (“A probable cause finding
 12

rests on a nexus between the criminal activity, the place to be searched, and the

items to be seized.”).

The dissent contends the CI informed the officers he was with Baudler

when they had stolen tools. We acknowledge Deputy Davis testified at the

suppression hearing, “I believe the informant indicated that [Baudler] was with

him on one of the thefts where they stole tools.” But there was no description of

what kinds or types of “tools” were stolen. There was also no evidence of any

reports to law enforcement agencies of tools being stolen or anything recited in

the search warrant application referencing tools. If law enforcement officers had

credible information, it seems only reasonable to assume their application for a

search warrant would have encompassed stolen tools in addition to the other

items sought to be seized by the search warrant. Possession of stolen tools also

appears inconsistent with Officer Halverson’s testimony regarding information

from the CI that Baudler was stealing items and selling them “to a crushing

service or a salvage yard.” Moreover, while at the scene, the officers made

absolutely no effort to try to determine if the power tools in the shed were stolen.

Suspicious yes, but without more information, the threshold of probable cause,

even though not a high standard, is not attained.

Additionally, Baudler’s son’s behavior, even if suspicious, did not provide

officers with probable cause. Baudler’s son could have been acting “hinky” due

to nervousness caused by his father’s arrest or other factors unrelated to criminal

activity. Therefore, on these facts, we find the exception to the warrant

requirement based on probable cause and exigent circumstances did not apply.
 13

B. Inventory Exception. In determining whether an impoundment of a

vehicle is lawful, “we look for the existence of reasonable standardized

procedures and a purpose other than the investigation of criminal activity.”

Huisman, 544 N.W.2d at 437. A standardized procedure “need not be

exclusively written.” Id. “The critical factor in determining whether too much

discretion has been granted to police officers regarding impoundment of an

arrested person’s automobile is the ability for arbitrary searches to be conducted

by the police officers.” Id. at 438 (citation omitted).

Deputy Davis testified the Madison County Sheriff’s Department does not

have a written policy regarding inventory searches. Deputy Davis explained the

policy is to “[s]ecure the vehicle so that all evidence can be preserved. Transport

it or have it towed to the office and locked up in the garage.”

Officer Halverson testified the Winterset Police Department also has an

unwritten inventory policy. Officer Halverson stated the inventory policy is that

[a]nytime we arrest someone and they have a vehicle there, we
impound the vehicle. We do a complete inventory of the interior
contents of the vehicle and the condition of the exterior of the
vehicle and then it is—we stay with it until a tow company comes
and then we follow it to the police department where it gets held.

However, on cross-examination, Officer Halverson admitted he has arrested

individuals who are driving and let the passenger take the vehicle home, has

allowed people to keep their vehicles in their driveway after being arrested, and

has allowed a vehicle to remain at a friend’s house after an arrest with the

consent of the homeowner. There was also no evidence the Winterset Police

Departement inventory policy applied because there was no testimony the

search was within the Winterset city limits.
 14

As we have noted, we need not consider the reasonableness of the police

officer’s decision to impound so long as the impoundment was pursuant to a

standardized policy and the officer was not solely motivated to investigate

criminal activity. Id. at 439. But here, the vague inventory “policies” related by

Deputy Davis and Officer Halverson grant officers unlimited discretion to

arbitrarily conduct searches. Basically, the officers could choose to impound any

vehicle seized. In view of the officers’ testimony and the timeline of events

surrounding the search of Baudler’s truck, we conclude the search was

improperly completed solely for investigatory purposes.

“To decide whether the officers were motivated solely by an investigatory

purpose, we examine whether, when viewed objectively, an administrative

reason for the impoundment existed.” Id. Here, the officers stated differing

reasons for the search. Deputy Davis testified he intended the truck to be

impounded when he left the scene. But Assistant Chief Miller testified Deputy

Davis instructed the truck to be searched pursuant to a search incident to arrest

and only after the methamphetamine was found was he informed by Deputy

Davis the truck should be impounded. The initial reason for the search as

expressed in Officer Halverson’s incident report—that the plates did not track to

the proper truck—was not subsequently testified to by any of the officers.4 The

inharmonious reasons for the search and the point at which the truck was

ordered to be impounded indicate the officers intended to search the truck to

investigate suspected criminal activity.

4
Neither at trial nor on appeal has the State attempted to argue the search was valid as
a search incident to arrest or any theory related to the license plates.
 15

Moreover, the manner in which the search was carried out suggests an

investigatory rather than inventory purpose. If the purpose of the search was to

inventory the vehicle’s contents and protect against accusations of theft, officers

would likely have searched the entire vehicle and completed a written or

electronic inventory. However, the officers discovered methamphetamine quickly

after they began searching. Once the methamphetamine was found, the search

was stopped. Although an inventory search could perhaps be delayed and

completed later, there was no further search for a key or an examination of any

tools. The vehicle was then towed to the Law Enforcement Center and put in an

impound shed without completion of an inventory search. No additional search

was done until after a search warrant was obtained for the truck the next day.

We acknowledge that “[i]f the officers could have had a caretaking reason

to impound the car, then we assume they did not act solely to investigate criminal

activity.” Id. at 439-40. Here, because the vehicle was on private property, there

was no concern about the safety of the traveling public or a nuisance caused by

the vehicle. See id. at 437 (noting policy reasons justifying warrantless seizure of

automobiles). Officer Halverson testified he believed Blackford did not want the

truck to remain on her property. However, Deputy Davis admitted Blackford did

not specifically ask that the truck be removed. Rather, Deputy Davis testified

Blackford had said “if there was any stolen property on there, she wanted it off

and she did not want Kevin Baudler on her property.” We do not believe the

officers’ testimony relaying Blackford’s wishes as to stolen property supports the

existence of a caretaking reason to impound the truck from private property.

Also, Baudler’s son was present and available to remove the truck. Further, no
 16

officer testified there was a need to protect the vehicle from theft or vandalism.

See id.

We conclude the conflicting testimony of the officers, as well as the

timeline of events surrounding the search of the truck, indicate the officers

searched the truck for the sole purpose of investigating for suspected criminal

activity beyond the scope of the search warrant. Thus, we find the inventory

exception does not apply to overcome the Fourth Amendment warrant

requirement due to the vague impound policies and improper motive.5

Because we conclude neither probable cause coupled with exigent

circumstances nor the inventory exception applied to permit the officers to

conduct the warrantless search of Baudler’s truck, the search was illegal. We

find the district court improperly overruled Baudler’s motion to suppress and

improperly denied the motion to enlarge, amend, and reconsider as to the issues

related to the search of the truck. As the search of Baudler’s truck was illegal,

any evidence obtained from the search must be suppressed. See State v.

Naujoks, 637 N.W.2d 101, 111 (Iowa 2001) (“An unlawful search taints all

evidence obtained in the search or through leads uncovered by that search and

bars its subsequent use.” (citation omitted)).

V. Motion to Extend Time.

Baudler also asserts the district court abused its discretion in denying his

motion to extend the deadline to allow for the filing of his amended motion to

suppress. See Iowa R. Crim. P. 2.11. The motions were combined in a single

5
Because the State did not assert the inevitable-discovery doctrine, it is inapplicable.
See State v. McGrane, 733 N.W.2d 671, 681 (Iowa 2007).
 17

filing on April 17, 2015, three days after the suppression hearing and before the

district court’s ruling on the motion to suppress, which was filed April 20. Baudler

filed his written arraignment in cases FECR108017 and FECR108018 on March

4, 2015.6 Thus, in these two cases, the amended motion was filed four days

beyond the forty-day time period beginning after arraignment as provided in rule

2.11(4). Trial in both of these cases was set for July 7.

But in FECR108037, Baudler filed his written arraignment on March 16. In

this case, the amended motion to suppress was, in fact, timely filed within forty

days from his arraignment. Accordingly, the motion to extend time in

FECR108037 was unnecessary and moot. Before addressing the amended

motion to suppress as it relates to FECR108037, we consider the merits of the

motion to extend time in the other proceedings.

With respect to the other two actions, we note rule 2.11(3) provides,

“Failure of the defendant to timely raise defenses or objections or to make

requests which must be made prior to trial under this rule shall constitute waiver

thereof, but the court, for good cause shown, may grant relief from such waiver.”

Thus, Baudler’s failure to file the amended motion to suppress within forty days

of arraignment pursuant to rule 2.11(4) “constituted a waiver of his constitutional

objection unless there was good cause shown to grant relief from such waiver.”

State v. Ball, 600 N.W.2d 602, 604 (Iowa 1999).

When considering what constitutes good cause for an untimely motion to

suppress, “[f]actors considered . . . include the adequacy of the defendant’s

6
Iowa Rule of Criminal Procedure 2.11(4) provides, “If a written arraignment under rule
2.8(1) is used, the date of the arraignment is the date the written arraignment is filed.”
 18

reasons for failure to comply with applicable rules of procedure and whether the

State was prejudiced as a result.” State v. Jordan, 779 N.W.2d 751, 755 (Iowa

2010) (citing State v. Christensen, 323 N.W.2d 219, 223-24 (Iowa 1982)). “The

defendant’s interest in a full and fair trial must be weighed against the State’s

interest in avoiding surprise and unnecessary delays. The preclusive sanctions

of [rule 2.11(3)] should not be imposed lightly.” State v. Eldridge, 590 N.W.2d

734, 736 (Iowa 1999) (internal citation omitted).

Baudler’s amended motion to suppress alleges the search warrant

application contained intentional misrepresentations regarding the credibility of

the CI and, thus, lacked probable cause. Baudler argued good cause existed to

allow for filing of the amended motion to suppress outside the allotted forty days

because he did not receive much of the discovery until one day prior to the

suppression hearing, and the identity of the CI was not confirmed until the April

14, 2015 hearing.

The State asserts the record reveals Baudler knew the identity of the CI

prior to the suppression hearing through his investigator because Baudler’s

attorney cross-examined the officers, asking if the informant was David Blair and

questioning the validity of the representations made about Blair in the search

warrant application.

We find the district court’s denial of the motion to extend time constituted

an abuse of discretion because, until evidence was presented at the suppression

hearing, Baudler suspected but did not know with certainty the identity of the CI.

We also find significant the missed deadline—by only four days—was not

substantial and there was ample time remaining before the scheduled trial date.
 19

The district court gave no reasons for denying the motion to extend time on the

record7 or in the order denying the motions,8 and we are unable to say the

reasons were reasonable because no reasons were provided.

Moreover, Baudler was entitled to a hearing on the merits on his timely

amended motion to suppress in case number FECR108037, and it would not

serve justice if he is successful on the motion but convicted by use of the same

evidence in two corollary cases. Additionally, the State has not shown any

prejudice or surprise, nor does the State argue there is any unnecessary delay.

We conclude, on these facts, the preclusive sanctions of rule 2.11(3) should not

be applied. We therefore reverse the district court’s denial of the motion to

extend time.

VI. Amended Motion to Suppress.

Baudler also contends the district court erred in overruling the amended

motion to suppress because the search warrant application was not supported by

probable cause as it contained misrepresentations regarding the credibility of the

CI. In attachment B to the search warrant application, Officer Halverson checked

individual boxes to certify:

The informant is reliable for the following reasons:
The informant is a concerned citizen who has been known
by the above peace officer for 17 years and who:
Is a mature individual.

7
At the hearing on the motion to extend time, amended motion to suppress, and motion
to enlarge, amend, or reconsider, the district court, with no additional explanation,
stated: “I can tell you now—and I will do a ruling after this—but all of your motions are
overruled, each and every one of them in their entirety.”
8
The court’s order did not make any findings of fact and summarily denied all of
Baudler’s motions, stating: “The defendant’s pending motions are overruled in their
entirety based upon the record, including the motion to reconsider, motion to expand the
court’s previous ruling, motion to extend deadlines, and motion regarding the amended
motion to suppress.”
 20

Is regularly employed.
Is [a] well-respected family and/or business person.
Is a person of truthful reputation.
Has no motivation to falsify the information.
Has no known criminal record.
Has otherwise demonstrated truthfulness.

However, each of these statements was shown to be inaccurate by testimony at

the suppression hearing.

Officer Halverson was questioned by Baudler’s attorney regarding the CI:

Q. At the time you talked to Mr. Blair he was under arrest?
A. At the time I talked to Mr. Blair he was in custody and here for a
court proceeding.
Q. And as a result of providing information, he was
released? Is that correct? A. I have no idea what happened to him
after that. I don’t know what the deal was that was made.
Q. He was trying to make a deal is why he was giving
information? A. I think he was hoping for a deal but we advised him
that was not up to us.
Q. But it certainly could work in his favor? A. We never
advised him of that. I was not in favor of any deal for David Blair.
Q. That is because Mr. Blair has a criminal history? A. I
have had several dealings with David Blair.
Q. Where he was involved in criminal activity? A. Yes. We
have arrested him multiple times for thefts. He is a very large thief
in my opinion.
Q. Would you call him an honest person? A. I think he can
be. He is a thief. I would call him a thief.

Baudler’s attorney also questioned Deputy Davis regarding the CI:

Q. The informant is David Blair? A. Correct.
Q. The search warrant indicates David Blair has no criminal
history. That is not right; is it? A. No.
....
Q. David Blair has an extensive criminal history? A. He
does.
....
Q. You are familiar with David Blair? A. Yes. I know both
subjects.
Q. Is David Blair a mature individual in your opinion? A. In
my opinion?
Q. Yes. A. You mean age-wise? He is above 21.
Q. Is he regularly employed? A. No.
 21

Q. Is he a well-respected family and/or business person?
A. He is a fairly good mechanic.
Q. Would you call him well-respected? A. No. I wouldn’t.
Q. A person of truthful reputation? A. I guess the information
he gave us was correct.
Q. Would you call him prior to the date of this application a
person who you would refer to as a person of truthful reputation?
A. I guess I don’t understand what you are asking me.
Q. If you were asked, do you believe he is a truthful person?
A. Okay.
Q. Based on your knowledge and experience is David Blair a
truthful person? A. I guess that all depends on what you ask David.
Q. Would he lie at times? A. Yes.
Q. Did David Blair—was he implicated in any other crimes at
the time the search warrant took place? A. I’m not sure at the time.
Q. How did he end up giving this information? Was he under
arrest? A. Yes, he was.
Q. And David Blair is the only informant who provided the
information for the search warrant; correct? Let me just say, when
the search warrant says that the informant gave information, that
informant is only referring to David Blair, right? A. Correct.

Baudler contends the search warrant application is not supported by

probable cause as required by the Iowa and United States Constitutions and

does not comply with Iowa Code section 808.3, which provides, in relevant part:

A person may make application for the issuance of a search
warrant by submitting before a magistrate a written application,
supported by the person’s oath or affirmation, which includes facts,
information, and circumstances tending to establish sufficient
grounds for granting the application, and probable cause for
believing that the grounds exist. . . . The application or sworn
testimony supplied in support of the application must establish the
credibility of the informant or the credibility of the information given
by the informant.

Baudler argues the search warrant application omitted material facts regarding

the CI’s credibility.
 22

“We use the Franks[9] standard when a defendant challenges the veracity

of a search warrant application.” State v. Pate, No. 11-0971, 2012 WL 3860450,

at *6 (Iowa Ct. App. Sept. 6, 2012).

In Franks, . . . the [United States] Supreme Court developed
a means to examine truthfulness of an affiant in presenting
evidence to a magistrate supporting issuance of a search warrant.
This court adopted the Franks standard in State v. Groff, 323
N.W.2d 204, 206-08 (Iowa 1982). The inquiry adopted by Franks is
limited to a determination of whether the affiant was purposefully
untruthful with regard to a material fact in his or her application for
the warrant, or acted with reckless disregard for the truth. If the
court finds that the affiant consciously falsified the challenged
information, or acted with reckless disregard for the truth in his or
her application for the warrant, the offensive material must be
deleted and the remainder of the warrant reviewed to determine
whether probable cause existed.

State v. Niehaus, 452 N.W.2d 184, 186-87 (Iowa 1990) (citations omitted). Thus,

[w]hen a defendant challenges a search warrant, a Franks hearing
is required if the defendant makes a substantial preliminary
showing that (1) a knowingly and intentionally false statement, or a
statement made with reckless disregard for the truth, was included
by the affiant and (2) the statement was necessary to the finding of
probable cause.

State v. Heins, No. 02-0425, 2003 WL 21229151, at *1 (Iowa Ct. App. May 29,

2003).

We find Baudler has made a sufficient preliminary showing that the

statements contained in the search warrant application, if not intentionally false,

were at the very least made with reckless disregard for the truth. Officer

Halverson, one of the affiants in support of the search warrant application,

testified he had several dealings with the CI, and knew him to be a “large thief.”

Deputy Davis testified at the suppression hearing he was familiar with the CI, and

9
Franks v. Delaware, 438 U.S. 154 (1978).
 23

knew he had an extensive criminal history.10 In fact, the officers’ testimony

indicates nearly all of the representations related to the credibility of the CI as

provided in Attachment B in the search warrant application may be false. Both

officers testified the CI provided the information in the search warrant application

as a result of being in custody. The CI was the only informant who provided the

information upon which the search warrant application was found to have

probable cause. Thus, the questionable truthfulness of the representations call

into question the existence of probable cause supporting the search warrant.

Notwithstanding the false information, we conclude it is unnecessary to

remand this action back to the district court for a Franks hearing. Baudler has

identified the specific false information and “[a] reviewing court can remove the

offending information and determine whether the remaining information

establishes probable cause.” McNeal, 867 N.W.2d at 102. In McNeal, our

supreme court stated:

We consider various factors in determining whether information
provided by an informant is reliable: (1) “whether the informant was
named”; (2) “the specificity of [the] facts detailed by the informant”;
(3) “whether the information furnished was against the informant’s
penal interest”; (4) “whether the information was corroborated” by
other information known to law enforcement; (5) “whether the
information was not public knowledge”; (6) “whether the informant
was trusted by the accused”; and (7) “whether the informant directly
witnessed the crime or fruits of it in the possession of the accused.”

Id. at 102-03 (quoting State v. Weir, 414 N.W.2d 327, 332 (Iowa 1987); accord

Niehaus, 452 N.W.2d at 190).

10
The endorsement on the application for search warrant indicates that the magistrate
relied upon the sworn testimony of the CI and Deputy Gary Davis. Although Officer
Halverson was not identified in the endorsement as a person relied upon, the
endorsement indicates that the information provided appeared credible because of
“attachments A & B,” and attachment “A” is an affidavit by Officer Halverson.
 24

Here, the informant was confidential but claimed to have made personal

observation of both the UTV and the skid loader. In fact, the CI provided

information contrary to his penal interest by acknowledging his participation in the

theft of the skid loader and the “cover-up and sale of the UTV.” The CI’s

observations included the possession and storage of both the UTV and the skid

loader at the place to be searched. The informant’s details of the UTV also

matched the specific description provided in the owner’s theft report of a Yamaha

Rhino, dark red with ghost decals. Deputy Davis corroborated material facts by

avowing he had recently observed the UTV and a skid loader next to the building

to be searched. The informant also explained that a camper trailer is parked next

to the building to be searched, and both Deputy Davis and Officer Halverson

corroborated this fact by their own observations within one day of the issuance of

the search warrant.

We conclude, even disregarding the offending information concerning the

reasons why the CI was credible as listed in Attachment B, “Informant’s

Information,” the magistrate had a substantial basis for concluding probable

cause existed. We reach this conclusion considering the totality of the

circumstances within the four corners of the application for the search warrant

and the reasonable inferences that may be drawn from this information. See Id.

at 105. Therefore, we find the district court properly overruled the amended

motion to suppress.

VII. Conclusion.

We conclude Baudler’s motion to enlarge, amend, and reconsider tolled

the time to appeal the adverse ruling on his motion to suppress. We conclude
 25

the search of Baudler’s truck was illegal, and the district court erred in overruling

the motion to suppress evidence seized from that search. We conclude the

motion to extend time in FECR108037 was unnecessary and moot. We further

conclude the district court abused its discretion in denying Baudler’s motion to

extend the time for filing the amended motion to suppress in cases FECR108017

and FECR108018, but we affirm the district court’s order denying the amended

motion to suppress in all three actions. We remand for an order suppressing all

evidence obtained from the search of Baudler’s truck and for further proceedings

consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Doyle, J., concurs; McDonald, J., concurs in part and dissents in part.
 26

MCDONALD, Judge. (concurring in part and dissenting in part)

I concur in part and dissent in part. I concur the district court abused its

discretion in denying Baudler’s request to file an amended motion to suppress

evidence. I concur there was probable cause to issue the warrant even when

the challenged information is excised from the application. Specifically, two

officers independently corroborated the confidential informant’s information. See

Iowa Code § 808.3 (2015) (“The application or sworn testimony supplied in

support of the application must establish the credibility of the informant or the

credibility of the information given by the informant.”). I respectfully dissent from

the majority’s conclusion the officers lacked probable cause to search Baudler’s

vehicle.

The Fourth Amendment provides “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. The Fourth Amendment

is applicable to state actors by incorporation via the Fourteenth Amendment.

See Mapp v. Ohio, 367 U.S. 643, 660 (1961). The touchstone of the Fourth

Amendment is reasonableness. See Rodriguez v. United States, 135 S. Ct.

1609, 1617 (2015) (Thomas, J. dissenting). A search or seizure executed

pursuant to a warrant is per se reasonable. A search or seizure executed without

a warrant may be “reasonable” within the meaning of the Fourth Amendment in

some circumstances. See id. For example, the warrantless search of an

automobile is constitutionally reasonable when the search is supported by

probable cause. See California v. Carney, 471 U.S. 386, 394 (1985) (stating the
 27

relevant question in the absence of a warrant is whether “this search was

unreasonable”).

Probable cause exists to search a vehicle “when the facts and

circumstances would lead a reasonably prudent person to believe that the

vehicle contains contraband. The facts and circumstances upon which a finding

of probable cause is based include the sum total” and “the synthesis of what the

police [officer has] heard, what [the officer] knows, and what [the officer]

observe[s] as [a] trained officer.” State v. Hoskins, 711 N.W.2d 720, 726 (Iowa

2006) (citations and internal quotation marks omitted). “The assessment of

probable cause is based on probabilities and not mere suspicion, but it need not

rise to the level of certainty beyond a reasonable doubt.” Id. (quotation marks

omitted). “A probable cause finding rests on a nexus between the criminal

activity, the place to be searched, and the items to be seized.” Id.

Here, there was probable cause to search Baudler’s truck for stolen tools.

The officers observed in the barn a large number of power tools. Specifically,

they observed “15-20 cordless drills in a bag or a box” and there were several

similar bags and boxes. While the officers did not confirm the cordless drills in

the barn were stolen, they could reasonably conclude they were in fact stolen.

First, the officers already knew Baudler was in possession of other stolen

property—the Yamaho Rhino UTV, the skid loader, the Kubota lawn tractor, and

the keys to the stolen vehicles. Second, the confidential informant told the

officers he and Baudler had stolen tools together. Third, the sheer number of

cordless drills was inconsistent with personal use. Fourth, when Baudler arrived

in his pickup truck, the officers observed in his truck drills similar to those
 28

observed in the barn. It was reasonable for the officers to conclude the cordless

drills in the truck were stolen property being transported to the barn to be stored

with the other cordless drills. See, e.g., Dyson v. People, 488 P.2d 1096, 1097

(Colo. 1971) (determining probable cause existed to search a vehicle where

officers had been informed of the burglary of suits from a local shopping center,

stopped the vehicle in the vicinity of the crime, and observed numerous suits in

the back seat of the vehicle); State v. Murray, 353 A.2d 351, 354–55 (Vt. 1976)

(finding probable cause existed to search a vehicle where officer observed

pillowcases full of glassware and silverware inside the vehicle, was aware of

previous burglary committed using pillow cases, and had a tip the occupants of

the vehicle had been involved in prior break-ins).

I thus dissent in part.