898 N.W.2d 140 (Iowa 2017), 16-0362, State v. Storm

Docket Nº:16-0362
Citation:898 N.W.2d 140
Opinion Judge:WATERMAN, Justice.
Party Name:STATE OF IOWA, Appellee, v. CHRISTOPHER GEORGE STORM, Appellant
Attorney:Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik and Louis S. Sloven, Assistant Attorneys General, for appellee.
Judge Panel:WATERMAN, Justice. Cady, C.J., Mansfield, and Zager, JJ., join this opinion. Cady, C.J., files a concurring opinion. Hecht, J., files a dissenting opinion joined by Wiggins and Appel, JJ. Appel, J., files a separate dissenting opinion joined by Wiggins, J. Cady, C.J., Mansfield, and Zager, JJ., j...
Case Date:June 30, 2017
Court:Supreme Court of Iowa
 
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Page 140

898 N.W.2d 140 (Iowa 2017)

STATE OF IOWA, Appellee,

v.

CHRISTOPHER GEORGE STORM, Appellant

No. 16-0362

Supreme Court of Iowa

June 30, 2017

Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge. Defendant appeals his conviction claiming automobile exception to search warrant requirement should be abandoned.

Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Louis S. Sloven, Assistant Attorneys General, for appellee.

WATERMAN, Justice. Cady, C.J., Mansfield, and Zager, JJ., join this opinion. Cady, C.J., files a concurring opinion. Hecht, J., files a dissenting opinion joined by Wiggins and Appel, JJ. Appel, J., files a separate dissenting opinion joined by Wiggins, J.

OPINION

WATERMAN, Justice.

In this appeal, we must decide whether to abandon the automobile exception to the search warrant requirement under article I, section 8 of the Iowa Constitution. In State v. Gaskins, we did not reach that issue, but members of this court noted the rationale for the exception may be eroded by technological advances enabling police to obtain warrants from the scene of a traffic stop. 866 N.W.2d 1, 17 (Iowa 2015) (Cady, C.J., concurring specially). The defendant driver in today's case was lawfully stopped for a seat belt violation. The deputy smelled marijuana and searched the vehicle, discovering marijuana packaged for resale. The defendant was charged with possession with intent to deliver in violation of Iowa Code section 124.401(1)( d ) (2015). He filed a motion to suppress, claiming this warrantless search violated the Iowa Constitution because police can now obtain warrants electronically from the side of the road. The district court denied the motion after an evidentiary hearing that included testimony that it would have taken well over an hour to obtain a search warrant. The defendant was convicted, and we retained his appeal.

On our review, we conclude, based on the evidence in the record, that this deputy was unable to obtain a warrant electronically from the scene of the traffic stop, and the procedures in place at that time required a warrant application to be presented in person to a judicial officer. For the reasons further explained below, we elect to retain the automobile exception, consistent with our precedent, federal caselaw, and the overwhelming majority of other states. We are guided by the decisions of other states that abandoned the automobile exception only to reinstate it. Their experience shows the easy-to-apply automobile exception is preferable to the alternative--a less predictable, case-by-case exigency determination resulting in prolonged roadside seizures awaiting a warrant, with attendant dangers and no net gain for civil liberties. We may revisit this issue at a future time when roadside electronic warrants have become more practical. Today, we affirm the district court's ruling denying the defendant's motion to suppress and defendant's conviction.

I. Background Facts and Proceedings.

On the afternoon of April 19, 2015, sheriff's deputy Clay Leonard was on patrol in Dallas County at the intersection of Highway 141 and Wendover. He saw a male driving a dark-colored Chevrolet pickup truck without wearing a seat belt. The deputy activated his emergency lights to stop the driver. He reported to dispatch the location of the traffic stop, about a twenty-five-minute drive from the Dallas County courthouse. He walked to the driver's side window and asked for the lone occupant's license and registration. As they talked, he noticed that the driver, Christopher Storm, " appeared to be nervous, hands shaking and quick labored breaths." Deputy Leonard " could smell the distinct odor of marijuana coming from the vehicle." He brought Storm back to the front seat of his patrol car for questioning. Storm made a call on his cell phone, and two of his acquaintances arrived. Storm initially denied smoking marijuana or having any in his truck, but after further discussion, he admitted to using marijuana previously and having a criminal record. Over Storm's objection, Deputy Leonard searched the truck. He found several packages of marijuana, a scale, a grinder, a pipe, an e-cigarette with residue, and pills in an unmarked bottle. These items were removed, and Storm was placed under arrest. One of Storm's acquaintances drove his truck away after the arrest.

The marijuana found in Storm's truck totaled forty-seven grams. The fourteen pills in the unmarked bottle were amphetamine/dextroamphetamine, with no prescription. Storm's cell phone had text messages showing he had been selling marijuana. The State charged Storm by trial information with possession with intent to deliver marijuana in violation of Iowa Code section 124.401(1)( d ); tax stamp violations under sections 453B.1, 453B.3, 453B.4, and 453B.12; and unlawful possession of a prescription drug in violation of section 155A.21.

Storm filed a motion to suppress. He argued that a warrantless search of a vehicle based solely upon probable cause no longer comports with article I, section 8 of the Iowa Constitution because new technology enables officers to file warrant applications at the scene of the traffic stop. The State resisted, and the district court conducted an evidentiary hearing.

Deputy Leonard and Lieutenant Adam Infante testified for the State. Deputy Leonard testified that it is a " routine occurrence" that he is the only law enforcement officer " dealing with multiple individuals or suspects." If he has to call for assistance, it could be thirty to forty minutes before another officer arrives. When he stopped Storm, Deputy Leonard had a personal cell phone, a department-issued flip phone, and an in-car computer. His internet connection was " slow" at that location. He lacked the equipment to remotely obtain a warrant.

Deputy Leonard also testified about the time needed to write a search warrant application: Q. How long, in your experience, has it taken you to author search warrants? A. By the time I get back to the police department or my office . . . to type it up, make phone calls, get ahold of a county attorney to look over it, review it--I also have to get assistance because I'm not, I don't do it all the time, so I either have a detective or somebody else that writes them up assist me.

And then, after making phone calls, getting ahold of them, sending the document back and forth maybe to fix, grammatically fix a couple things or something, then the judge signs it.

Most of the time I have to go to the judge's house if it's after hours. It's 5, 6 hours by the time I get everything done and be able to execute the warrant.

He noted how having to write a warrant in the patrol car would change this process: Well, typing up documents, trying to put everything into the document that's required by law, and trying to watch somebody or what's going on at the scene, or timewise, et cetera, is--I mean, it takes away from me being able to keep observation around me, keep me safe, et cetera.

Lieutenant Infante, who estimated he had written " hundreds" of warrants, testified it would take him, in a " [b]are-bones case," " about an hour." He outlined the complexity of the warrant process: First thing you need to do in the search warrant is identify with specificity the item or property to be searched. In this case a vehicle make, model, VIN, license plate, color, location of the vehicle, that sort of thing.

Next step would be to determine the items that you're looking for in said vehicle. Which, once again, has to be fairly specific.

After that I would lay out my affidavit for why I believe there's probable cause to search the vehicle for the items that I'm looking for.

The next step would be to add an attachment B if there was any sort of outside information that I might have received from another law enforcement officer or informant of some sort.

In Dallas County the judges prefer that we assist them with filling out the endorsement, where in some other counties that's not the case. Then I would contact the county attorney to get their approval of the search warrant, to discuss any details or items that I might have left out. And then after I have had the county attorney's approval I would then begin the arduous task of tracking down a judge.

He testified tracking down a judge can be difficult, whether it is " 3 or 4 o'clock in the morning" or " 3 o'clock in the afternoon" because they are often involved in other business such as hearings, appearances, or conferences.

Lieutenant Infante acknowledged he takes a " cautious" approach to search warrants, explaining the importance of accuracy: I've lost a...

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