State v. Barger

• Decision Date: 29 November 1993
• Docket Number: No. 92-1631,92-1631
• Citation: 511 N.W.2d 632
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Rhonda Kay BARGER, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 632

511 N.W.2d 632

STATE of Iowa, Plaintiff-Appellee, v. Rhonda Kay BARGER, Defendant-Appellant.

No. 92-1631.

Court of Appeals of Iowa.

Nov. 29, 1993.

Linda Del Gallo, State Appellate Defender, Shari Barron, Asst. Appellate Defender, for defendant-appellant.

Bonnie J. Campbell, Atty. Gen., Robert P. Ewald, Asst. Atty. Gen., Lee E. Poppen, County Atty., and Mary A. Schlicher, for plaintiff-appellee.

Considered by OXBERGER, C.J., and SACKETT and HABHAB, JJ.

SACKETT, Judge.

This is an appeal by defendant-appellant Rhonda Barger from judgment and sentence entered following her conviction of possession of a controlled substance with the intent to deliver and failure to affix a drug tax stamp in violation of Iowa Code sections 204.401, 421A.3 and 421A.12 (1991). We affirm.

Defendant was convicted following a trial to the district court on stipulated evidence. The evidence supporting defendant's conviction was seized under a search warrant.

The search warrant was issued on the basis of information supplied to a police officer by an informant named Michael Schossow. On November 8, 1991, Schossow was arrested on drug charges. According to the State, Schossow gave information concerning the defendant and a Nancy Larson. Larson and five others were then arrested. Of the six people arrested, Larson is the only one the State contends gave a statement incriminating defendant.

Defendant contends the trial court should have suppressed evidence obtained as a result of the search warrant because an Eagle Grove police officer omitted facts and made misrepresentations in applying for the search warrant. Defendant contends if the correct facts were included in the warrant application, the evidence would not support a finding of probable cause.

The test for probable cause to issue a search warrant is whether a reasonable person would believe a crime was being committed on the premises to be searched or that evidence of a crime would be located there. See State v. Todd, 468 N.W.2d 462, 466 (Iowa 1991).

To show the warrant was obtained by intentional or material misrepresentations, defendant has the burden of establishing intentional or material misrepresentation by a preponderance of the evidence. State v. Paterno, 309 N.W.2d 420, 424-25 (Iowa 1981). Defendant must demonstrate deliberate, false, or reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667, 682 (1978). If we find the affiant consciously falsified the information or acted with a reckless disregard for the truth, then 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).

The search warrant was issued on the application of officer Martin Botts. The application filed on November 13, 1991, stated:

I have received information that Rhonda Barger has in her possession, a quantity of illegal substance. It was further given by the informant, Michael Alan Schossow, that this substance was distributed for sale by Barger.

Intelligence information corroborates Mike's story that Rhonda does sell controlled substances from her residence.

Schossow advised that he drove a person to the Barger residence at approx. 0930 hrs on 11-08-91. That person did purchase a quantity of marijuana from Rhonda at her residence in Eagle Grove, Wright County, Iowa.

Information gained from Schossow is not readily known by the general public.

A few days ago, several people were arrested for the possession of controlled substance. During debriefing of these subjects, intelligence information showed that Rhonda Barger is currently actively engaged in the sell and distribution of illegal substance.

Information gained from these subjects is information not generally known by the general public. (Emphasis supplied).

Officer Botts testified he relied on statements made by Michael Schossow and Nancy Larson for the warrant application. Schossow and Larson both denied supplying any information about defendant to officer Botts. The interviews officer Botts testified he conducted with Larson and Schossow were allegedly witnessed by officer Hansen. Hansen confirmed the testimony of officer Botts. Wright County dispatcher Sheri Sidmore witnessed the interview of Larson by officers Botts and Hansen and said she agreed with the officers' testimony about the information Larson gave them.

The trial court found:

This court believes the testimony of Officers Hansen and Botts that Nancy Larson told them that Defendant Rhonda Barger was actively engaged in the sale of controlled substances ...

The testimony of Sheri Sidmore, the police matron, corroborates the officer's testimony regarding Ms. Larson, even though Ms. Larson herself denies, under oath, making such statements.

Mr. Schossow now denies that he told the police anything. This court finds his testimony no more believable than Nancy Larson.

Deference to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677, 693 (1984); Franks, 438 U.S. at 165, 98 S.Ct. at 2681, 57 L.Ed.2d at 678.

On the warrant application officer Botts noted he had known Schossow for two years, he had supplied information one time in the past, his past information had helped supply the basis for a search warrant, his past information had led to the making of two arrests, past information from Schossow had led to the filing of possession of controlled substance charges, past information from Schossow had led to the discovery and seizure of stolen property, drugs or other contraband, and the information supplied by Schossow in this investigation has been corroborated by law enforcement personnel. Attachment B, a statement of officer Botts, stated:

This informant has provided law enforcement with information in the past that has led to the making of two arrests for drug possession of class I controlled substances and one arrest of a person for a class II controlled substance. This information was gained and arrests were made in the last 21 days. The informant advises that in the last seventy-two hours, he drove a person to the residence of Rhonda Barger. The person went into the residence. After exiting the residence, that subject displayed a quantity of marijuana that she advised the informant had been purchased from Rhonda Barger at Rhonda's residence in Eagle Grove, Wright County, Iowa.

The validity of a search warrant is determined by looking at the facts in the affidavit and abstracts of testimony presented to the judge or magistrate issuing the warrant. See State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976). Only information that was actually presented to the judge or magistrate is considered in determining the validity of a warrant. Seiler, 342 N.W.2d at 266.

A search warrant is a substantial infringement on individual rights. A search warrant should only issue when all requirements for its issuance are met.

Defendant contends the statement as written by officer Botts conveys the initial information was given by Schossow and corroborated by more than one person, when, in fact, it was only corroborated by Larson. We agree with the defendant that by the officer's use of the word "several", the issuing magistrate could well have concluded the officer was relying on information from more than two people. See State v. Gillespie, 503 N.W.2d 612, 615 (Iowa App.1993), where we discussed the fact the officer's statement there were several buys did not tell the magistrate there were two buys. The officer's choice to use the words "several people" rather than "one person" where the officer knew the exact number of people can be deceptive. The use of the word "several" where the officer knows the correct number is suspect. We do not, however, under the facts of this case find the officer's failure to give the magistrate the exact number of persons defeats the warrant. This case is distinguishable from Gillespie where the officer testified he had purposely not given the number. The information given supported issuing the warrant. See Niehaus, 452 N.W.2d at 186-89.

Defendant contends the trial court abused its discretion in admitting evidence without proper foundation.

The inventory made during the search of items seized from defendant's house included a number of what were referred to as "snow seals" containing methamphetamine.

The inventory made at the time of the search shows twenty-one snow seals, however; at trial, the State was allowed to introduce an additional ten snow seals that the officer testified were also found but not inventoried. The only explanation given for the difference in number is it was likely the inventorying officer did not write down all of the snow seals.

The prosecution is required to show sufficient custody of physical evidence to establish that the article presented at trial is the same one taken from the defendant and that it has not been altered by intermeddlers. Thus, a '[t]rial judge determines the sufficiency of...