State v. Kern

• Decision Date: 24 May 2013
• Docket Number: No. 11–1208.,11–1208.
• Citation: 831 N.W.2d 149
• Parties: STATE of Iowa, Appellee, v. Christine Ann KERN, Appellant.
• Court: Iowa Supreme Court

831 N.W.2d 149

STATE of Iowa, Appellee,
v.
Christine Ann KERN, Appellant.

No. 11–1208.

Supreme Court of Iowa.

May 24, 2013.

[831 N.W.2d 155]

Christopher R. Kemp of Kemp Sease & Dyer, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennett Sr. and Kevin R. Cmelik, Assistant Attorneys General, John P. Sarcone, County Attorney, and Joseph D. Crisp and Andrea M. Petrovich, Assistant County Attorneys, for appellee.

CADY, Chief Justice.

In this appeal, we primarily consider the constitutionality of a search of the home of a parolee that uncovered evidence used to prosecute and convict the parolee of numerous drug offenses. In doing so, we must determine if the search was justified by the doctrines of consent, special needs, exigent circumstances, community caretaking, or a general balancing of the governmental interests served by the search against the privacy interest of the parolee. We also consider the sufficiency of the evidence to support the charges. On our review, we find the search of the home and the seizure of the evidence violated article I, section 8 of the Iowa Constitution. We reverse the judgment and sentence of the district court and remand the case for further proceedings.

I. Background Facts and Proceedings.

Christine Kern was a parolee living in Des Moines. She was granted parole on

[831 N.W.2d 156]

February 17, 2010, following a period of incarceration for a conviction of operating a motor vehicle while intoxicated, third offense. As a condition of parole, Kern signed a parole agreement. The agreement contained numerous standard conditions of parole, including paragraph P, which provided: “I will submit my person, property, place of residence, vehicle, personal effects to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any parole officer or law enforcement officer.” Paragraph P is a standard condition of parole in Iowa.

On November 3, 2010, Staci Huisman, a child assessment worker with the Iowa Department of Human Services (DHS), received an anonymous complaint that marijuana was being grown and processed in the house where Kern resided. The complaint also claimed marijuana was used and sold in the house, and these circumstances endangered Kern's sixteen-year-old daughter and her infant grandchild who occasionally stayed in the house. At the time, Kern lived in the home with her boyfriend, Sean Grant.

On November 5, 2010, Huisman investigated the complaint by making a home visit with the assistance of two police officers. The police routinely assist the DHS in their investigation of drug complaints in order to protect the safety of the investigator. The police presence also offers an opportunity for them to request consent to search the premise for illegal substances.

Huisman met narcotics police officers, Mark Chance and Matthew Jenkins, near Kern's residence, and they proceeded to the residence. Kern responded to a knock on the door, and she allowed Huisman and the officers to enter the home. Grant was also present. The officers felt Grant purposely stood between them and the interior of the home to prevent them from entering further into the home. Huisman explained the nature of the complaint and asked for consent to search the residence. Kern and Grant denied the allegations and denied consent to search the residence. Detective Jenkins believed the conduct of Kern and Grant was “defensive.”

Huisman explained she would need to remove the children from the residence if she was unable to search the home. Kern still refused to give consent. Huisman spoke with Kern's daughter and explained the situation and the allegations against Kern and Grant.¹

Huisman then removed the children and left the residence with the officers. After traveling a short distance, Huisman advised the officers that Kern was a parolee. Jenkins called Sergeant Brandon Garvey of the probation and parole office and asked him to assist in searching the house pursuant to the standard consent provision of parole agreements.

Garvey told Jenkins he was unable to immediately assist the law enforcement officers, but verified Kern was on parole and that she had signed a parole agreement containing the consent-search clause in paragraph P. Garvey also gave Jenkins permission to conduct the search on his behalf.

Chance and Jenkins returned to Kern's residence. Kern appeared to be walking to her car as the officers arrived, but she returned to the house when she saw the officers. The officers informed Kern and Grant they intended to search the house because Kern was a parolee and had consented

[831 N.W.2d 157]

to a search in her parole agreement.

Jenkins remained with Kern and Grant while Chance began the search. Garvey, the parole officer, arrived shortly after the search started. In the basement, Chance found three separate marijuana growing operations consisting of numerous marijuana plants. He then accompanied Grant to a bedroom he shared with Kern. The bedroom contained guns, as well as marijuana. The marijuana was located in a jar on a dresser and a jar on a bed stand. Marijuana was also found in large quantities in the dining room. The dining room appeared to serve as a place to dry marijuana. Plants were strewn about the room, and two large glass jars of dried marijuana were in the room. More glass jars of marijuana were located in a dresser in the living room. Kern and Grant were arrested. Grant immediately took full responsibility for the marijuana operation and said Kern had nothing to do with it.

The State charged Kern with four crimes: (1) conspiracy to manufacture a controlled substance in violation of Iowa Code section 124.401(1)( d ) (2009), (2) manufacturing a controlled substance in violation of Iowa Code section 124.401(1)( d ), (3) possession of a controlled substance with intent to deliver in violation of Iowa Code section 124.401(1)( d ), and (4) failure to possess a tax stamp in violation of Iowa Code sections 453B.3 and 453B.12.

Prior to trial, Kern joined Grant's motion to suppress the marijuana as evidence at trial. She argued it was obtained in violation of her constitutional rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.

In a hearing on the motion, Chance and Jenkins testified that Kern's refusal to grant permission to search her house suggested to them that drugs were located in the house. The State argued Kern waived her rights to object to the search by signing a parole agreement containing paragraph P. The State also asserted the search was justified by several recognized exceptions to the warrant clauses of the Fourth Amendment and article I, section 8. The exceptions included exigent circumstances, the community caretaking function of police officers, and the special needs presented by the maintenance of a parole system. Finally, the State argued the search was reasonable under the totality of the circumstances.

The district court found Kern gave “advance consent to search her property without a warrant or without reasonable cause” by signing the parole agreement. Additionally, it upheld the search as reasonable based on the DHS complaint combined with the police officer's suspicion derived from the conduct of Kern and Grant during the initial encounter. The court also found the search was justified under exigent circumstances and the community caretaking function.

In a subsequent trial on the minutes of testimony, the district court found Kern guilty of all four counts. It imposed judgment and sentence, and Kern appealed.

II. Issues Presented.

Kern raised two issues on appeal. First, she asserted there was insufficient evidence to support a finding of guilt beyond a reasonable doubt on each of the crimes charged. Second, Kern asserted the search of her home was in violation of her constitutional search and seizure rights under the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution. To resolve this second claim, we must unravel several threads of constitutional search and seizure law, including waiver or consent,

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special needs, exigent circumstances, community caretaking, and what has been termed the “general balancing approach.”

III. Sufficiency of the Evidence.

A. Scope and Standard of Review. We first address whether the State introduced sufficient evidence for a fact finder to find Kern guilty beyond a reasonable doubt. We address this issue first because the Double Jeopardy Clause would not permit a retrial of the charges if there was insufficient evidence of guilt presented at trial. State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 290, 102 L.Ed.2d 265, 272–73 (1988)).

We review challenges to the sufficiency of the evidence presented at trial for correction of errors of law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). The essential question before the court on a challenge to sufficiency of the evidence is whether there was substantial evidence to support a guilty verdict beyond a reasonable doubt. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).

We view the evidence presented at trial in the light most favorable to the State but consider all the evidence in the record, not just the evidence favoring the State. Id. Moreover, “[t]he evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002).

B. Discussion.Iowa Code section 124.401(1) makes it

unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a...