State v. Brown

• Decision Date: 10 February 2017
• Docket Number: No. 15-1576,15-1576
• Citation: 890 N.W.2d 315
• Parties: STATE of Iowa, Appellee, v. Christopher D. BROWN, Appellant.
• Court: Iowa Supreme Court

890 N.W.2d 315

STATE of Iowa, Appellee,

v.Christopher D. BROWN, Appellant.

No. 15-1576

Supreme Court of Iowa.

Filed February 10, 2017

Lauren M. Phelps, Davenport, for appellant.

Thomas J. Miller, Attorney General, Genevieve Reinkoester, Assistant Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.

ZAGER, Justice.

The defendant appeals from the denial of two separate motions to suppress evidence based on his stepfather's actions as an off-duty police officer. In each case, the defendant's stepfather conducted a search and seized firearms and drugs. Defendant's stepfather is a police officer with the Davenport Police Department. However, each search was conducted while the stepfather was off duty. The defendant alleges the searches are unconstitutional because his stepfather was not acting in a parental capacity, but rather conducted the searches while exercising state action as a law enforcement official. The district court denied each motion to suppress, finding there was no state action. After waiving his right to a jury trial, trials were held to the court. After the bench trials, the defendant was found guilty of the charges and sentenced accordingly. The defendant now appeals the district court denials of the motions to suppress. For the reasons stated below, we hold the stepfather was not engaged in state action at the time of either search and no constitutional claims are implicated. We affirm the judgments of the district court.

I. Background Facts and Proceedings.

The defendant, Christopher D. Brown, appeals his convictions and sentences following two bench trials. He challenges the underlying searches in each of the two cases, arguing that his stepfather's employment as a police officer, and other attendant facts, converted each search into state action.

A. The First Search—Case Number FECR368292. On February 5, 2015, Brown's mother, Lynne Kilburg, received a phone call from his aunt, Cindy Keimig. Cindy informed Lynne that she believed Brown was in possession of her husband's gun. Brown had visited her son, his cousin Marcus, at the Keimigs' home the night before, and Marcus believed Brown took the gun when he left.

Brown spent the night with Marcus at the Keimig home on February 4. Marcus always kept one of his father's guns under the mattress in his bedroom. When Marcus checked for the gun on the morning of February 5, he discovered it was gone. He searched the room for the gun and found it under the cushion where Brown was sitting. Marcus told Brown that hiding the gun "was not cool" and Brown should have told him where the gun was while he was looking. Marcus and Brown left the Keimig residence and got into Marcus' car to leave. Brown said he forgot his wallet and returned to the house before Marcus brought him home.

After dropping Brown off, Marcus left for training with the National Guard. When he returned home at the end of the day, he realized the gun was missing again. He informed his parents the gun was missing and told them he believed Brown took it. Cindy then called Lynne to tell her that Marcus believed Brown took the gun and that she and Marcus were going to drive to Brown's workplace to ask him about it. Upon their arrival at Brown's workplace, Cindy and Marcus saw Brown driving away.

After Lynne talked to Cindy, she called Brown's father, Richard Brown. Lynne was concerned because Brown was on probation and suffering from depression. Lynne was worried that Brown had taken the gun because he was suicidal. Lynne asked Richard if he had a key to Brown's apartment so she could let herself in and look for the gun, but Richard did not.

Lynne then called Brent Kilburg, her husband and Brown's stepfather. Lynne and Brent have been married since Brown was three years old, and Lynne, Brent, and Richard co-parented Brown. Brent is a police officer for the Davenport Police Department. Lynne told Brent that the Keimigs believed Brown had taken a gun, that she was concerned about Brown due to his probation and depression, and that she and the Keimigs were going to Brown's apartment to speak with him and try to obtain the gun. Brent was off duty at the time of Lynne's phone call and decided to accompany everyone to Brown's apartment. He did not contact law enforcement at this time because he believed it was a family matter.

When the family arrived at Brown's apartment, they initially waited outside while they discussed what their course of action should be. They were concerned about Brown's mental state and whether he would harm himself with the gun. While they were standing outside and trying to decide how to approach Brown, they saw him leave the parking lot of his apartment building and drive down the street where they were standing. Lynne began signaling for Brown to stop, and Brent moved to the street to stand in front of Brown's car. Brent motioned for Brown to pull over, and both he and Lynne approached the passenger side of Brown's car.

Brent asked Brown to turn off his car and pull the key out of the ignition. Brent and Lynne both asked Brown about the missing gun, but Brown denied having possession of it. Both Lynne and Brent then observed a silver glint at Brown's hip, which they believed was the missing gun. Brent opened Brown's passenger side door, asked Brown to put his hands on his steering wheel, and then checked Brown's person and pockets. Brent found two knives on Brown's person and Brown's cell phone. Brent saw that Brown had a backpack in the car, and he moved the backpack closer to him in case it contained the gun.

Lynne and Brent then asked Brown to get out of the car, and he complied. Lynne again asked Brown about the gun, and he again denied he had it. Lynne then asked Brent to search Brown to see if he had the gun, and Brent found the gun in Brown's waistband. Dana Keimig, Brown's uncle, positively identified the gun as the one he was missing and put it in his vehicle.

Brown became upset, and Lynne told him to stay there with the family instead of getting in his car and leaving. Lynne wanted to see if she could either civilly commit Brown for depression and suicidal ideations, or if she could find any services for Brown that could offer an intervention. Lynne believed Brown would stay if she retained his possessions. Lynne took his cell phone and placed it in his backpack. She also took possession of Brown's wallet and knives and placed all of the items in her vehicle. She and Brown sat in the vehicle together talking. While they were sitting in the vehicle, Brown's cell phone rang repeatedly. Brown wanted to answer his cell phone and was agitated when he could not. Lynne ultimately retrieved the backpack and began to look for the cell phone. While looking in the backpack for the cell phone, Lynne discovered a bag that she believed contained marijuana, as well as drug paraphernalia.

Because Brown was on probation for a marijuana-related offense, Lynne informed Brent, Dana, and Marcus about the marijuana she found in Brown's backpack. Lynne and Brent called Richard to discuss what they needed to do, and they mutually agreed they should call law enforcement. Brent testified that once the marijuana was found, he knew he needed to inform law enforcement, step back, and let the other officers handle the matter.

Brent called two of his supervisors, Sergeants Lindbom and Jensen. After the phone call, he remained uninvolved other than providing a statement to Sergeant Jensen. At approximately 4:29 p.m., Officer Stegall arrived at the apartment building. Brent informed Officer Stegall that Brown was his stepson, he found a gun on Brown's person, and his wife found marijuana in Brown's backpack. Officer Stegall then conducted a pat down on Brown to determine whether he had any more weapons and placed him in the backseat of his squad car. Officer Stegall read Brown his Miranda rights at approximately 4:39 p.m. After reading Brown his Miranda rights, Brown consented to an interview with Officer Stegall.

During the interview, Brown told Officer Stegall he had previously been arrested for possession with intent to deliver marijuana, and he was currently on probation. Brown told Officer Stegall his family, including his stepfather, was at his apartment to retrieve an airsoft pistol that belonged to his uncle. He said his family found the airsoft pistol and "other stuff" in his car, but did not elaborate on what the "other stuff" was. The interview ended, and Officer Stegall remained with Brown.

At the time of the original contact with law enforcement, Sergeant Jensen spoke on the phone with Brent. Brent advised him that the situation was "a long story" and it would be easier for Sergeant Jensen to just respond to the apartment. Upon his arrival, Sergeant Jensen spoke with Brent, Lynne, Dana, and Marcus. Brent recounted the events of the day and informed Sergeant Jensen that Brown was his stepson and was on probation after receiving a deferred judgment for a charge of possession with intent to deliver marijuana. Sergeant Jensen asked the family where the gun and backpack were, and Brent retrieved the items and turned them over to Sergeant Jensen. Sergeant Jensen placed the items in Officer Stegall's squad car.

Officer Stegall informed Sergeant Jensen that Brown was given his Miranda rights and Brown had consented to a brief interview. Sergeant Jensen told Brown his Miranda rights were still in effect and asked him if he would consent to another interview. Brown consented. Sergeant Jensen asked Brown if there was anything illegal in his apartment or backpack, and Brown answered affirmatively to both questions. Sergeant Jensen asked for consent to search Brown's apartment and vehicle, to which Brown agreed. Officer Stegall filled out the consent to search form for both the apartment and the vehicle. Brown signed the consent forms and told the officers he wanted to be present during both searches. Lieutenant Biggs and Sergeant Jensen searched...