State v. Hillery
| Decision Date | 19 March 2021 |
| Docket Number | No. 19-0725,19-0725 |
| Citation | 956 N.W.2d 492 |
| Parties | STATE of Iowa, Appellant, v. Michael HILLERY, Appellee. |
| Court | Iowa Supreme Court |
Thomas J. Miller, Attorney General, Kevin Cmelik (argued), Assistant Attorney General, Katie Krickbaum, Assistant Attorney General, C.J. May, County Attorney, and Shea M. Chapin, Assistant County Attorney, for appellant.
Martha J. Lucey (argued), State Appellate Defender, for appellee.
Waterman, J., delivered the opinion of the court, in which all justices joined. Appel, J., filed a special concurrence.
In this appeal, we must decide whether the district court erred by granting a motion to suppress physical evidence and statements based on a police officer's alleged promise of leniency. The officer observed the defendant make a possible drug buy and initiated a Terry stop on a public sidewalk. After the officer told him he would not be arrested that day if he cooperated but could be arrested later, the defendant handed over crack cocaine and marijuana. The defendant's subsequent cooperation fell short and three months later, the officer charged him with possession. The district court granted the defendant's motion to suppress after ruling the officer made an improper promise of leniency and the narcotics the defendant handed over were "fruit of the poisonous tree." We granted the State's application for discretionary review, and transferred the case to the court of appeals, which reversed the suppression ruling. We then granted the defendant's application for further review.
On our review, we agree with the court of appeals that the officer properly detained the defendant in a Terry stop, and the ensuing discussion seeking a cooperation agreement did not cross the line to an improper promise of leniency. The officer kept his promise not to arrest the defendant that day, and fairly warned the defendant that he could be arrested later for possession. We decline the State's repetitive invitation to abandon our common law evidentiary test for promises of leniency. For the reasons elaborated below, we affirm the decision of the court of appeals on the alleged promise of leniency, vacate its decision on the defendant's constitutional claims, reverse the district court's suppression ruling, and remand the case for a new suppression hearing on the constitutional claims and the inevitable discovery doctrine.
On the afternoon of November 14, 2018, Investigator Chad Leitzen of the Dubuque Drug Task Force drove past a house located at 1910 1/2 Ellis Street (Ellis house) where he saw Michael Hillery riding a bicycle up to the front door. Leitzen circled back to the Ellis house about three minutes later and saw Carl Watkins, known as "Country," standing next to Hillery, who promptly biked away.
Leitzen had been a police officer for sixteen years and had been trained on drug interdiction. He testified that a sign of uncontrolled drug buys is when numerous people make short-term visits—less than five to ten minutes—to a specific address where they have "no known ties." Leitzen noted that he had never seen Hillery at the Ellis house before, that Hillery made a three-minute stop, that the two men did not appear to be close in age, and that nothing indicated that they had a relationship other than as drug dealer–user. Leitzen knew that Hillery had drug convictions, that officers were investigating the Ellis house after a heroin overdose, and that Watkins reportedly sold crack cocaine. These facts led Leitzen to believe that he had witnessed a narcotics transaction.
Leitzen followed Hillery, waiting to stop him until they were out of Watkins's view. Leitzen drove past Hillery, who was pushing his bike up a hill. Leitzen parked and called out to him: "Mike, can you stop just a minute so I can talk to you?" Hillery ignored him and continued walking. Leitzen got out of his car and approached. He smelled a strong odor of fresh marijuana coming from Hillery. No one else was present. Leitzen again told him to stop; Hillery persisted in ignoring him. Because Leitzen was in plain clothes, he showed Hillery his badge and identified himself as Investigator Leitzen with the Drug Task Force. Hillery continued walking and said he had done nothing wrong.
Hillery then reached into his front left pants pocket and pulled out his hand, balled up in a fist. It was clear to Leitzen that Hillery had taken something out of his pocket. Hillery held his hand out, but then hesitated and repeated that he had not bought anything and had not done anything wrong. Leitzen put his hand underneath Hillery's balled up fist and told Hillery that he needed to drop what he had. Hillery dropped a plastic bag containing what Leitzen recognized as crack cocaine.
At that point, a man stepped out of an apartment and told Leitzen he had called the police.
Soon after, Officer Jay Murray arrived. By that time, Hillery had told Leitzen he would cooperate. Leitzen asked Hillery to help him find the bag of crack cocaine, and Hillery found it where Leitzen had dropped it. Leitzen asked Hillery if he had marijuana in his pocket because he could smell it. Hillery told him that he had a small amount in his pocket and handed it over when Leitzen told him to do so. Hillery told Leitzen that Watkins sold him the crack cocaine for $40 and the marijuana for $30.
Leitzen called Investigator Adam Williams to the scene, who had been working on the overdose case involving the Ellis house. Williams spoke with Hillery, who said he would be willing to cooperate with the Drug Task Force, exchanged phone numbers with the officers, and shortly thereafter, was allowed to leave the area with his bicycle. Both investigators testified that they never promised Hillery that he would not be charged with a crime later. Hillery's promised cooperation proved problematic.
Leitzen testified that Hillery was "difficult" to work with: at first, the officers were unable to get ahold of him and once they did, he had essentially lost all contact with the target at the Ellis house and lost the phone number. When officers tried to make a recorded phone call for an undercover buy, the phone number was incorrect and the call was answered by a Hispanic male who did not match the target. Hillery tried another time to perform an undercover purchase, but no one answered when he knocked on the door of the target house. On February 15, 2019, after learning that Hillery had been arrested on a different drug charge, Leitzen charged him with one count of possession of a controlled substance (crack cocaine) and one count of possession of a controlled substance (marijuana) based on the November 14 incident. Hillery pled not guilty.
On March 12, Hillery's counsel filed a motion to suppress, alleging that his stop and detention violated his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 8 of the Iowa Constitution. He also argued that he was questioned without counsel, violating the Fifth and Sixth Amendments to the United States Constitution and article I, section 10 of the Iowa Constitution. Two days before the hearing on the motion, Hillery filed an addendum in which he asked for suppression of "evidence and any confession or statements" that he had made because they resulted from a promise of leniency, in violation of the Fifth Amendment to the United States Constitution and article I, sections 1 and 8 of the Iowa Constitution.
At the motion hearing, Leitzen and Williams testified. The State argued that Leitzen had "reasonable suspicion to believe that a crime may have occurred" and that Leitzen's statement that Hillery would not be arrested that day, but that he could be charged later, was not "harmful." Defense counsel argued that the stop was improper and that the promise of leniency made Hillery's actions involuntary such that the court should suppress Hillery's statements and the physical evidence.
The district court granted the motion to suppress, finding that the evidence obtained after the officer promised leniency was fruit of the poisonous tree and inadmissible.
The State filed an application for discretionary review as well as a motion to reconsider. We granted the State's application for discretionary review and motion for stay. The next day, after it had lost jurisdiction, the district court denied the State's motion to reconsider, stating, there was "insufficient probable cause to believe that criminal activity was afoot." We transferred the case to the court of appeals. On appeal, both sides briefed the constitutional claims and inevitable discovery...
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