State v. Kinkead

• Decision Date: 22 October 1997
• Docket Number: No. 96-1892,96-1892
• Citation: 570 N.W.2d 97
• Parties: STATE of Iowa, Appellee, v. Craig Allen KINKEAD, Appellant.
• Court: Iowa Supreme Court

Page 97

570 N.W.2d 97

STATE of Iowa, Appellee, v. Craig Allen KINKEAD, Appellant.

No. 96-1892.

Supreme Court of Iowa.

Oct. 22, 1997.

Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary Tabor and Susan M. Crawford, Assistant Attorneys General, and Connie S. Ricklefs, County Attorney, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, LAVORATO, and SNELL, JJ.

SNELL, Justice.

Following a stipulated trial, defendant Craig Allen Kinkead was convicted of possession of a controlled substance (crack cocaine), manufacturing a controlled substance (marijuana), and operating a vehicle without a valid motor vehicle license, in violation of Iowa Code sections 124.401(3), 124.401(1)(d) and 321.218(1) (1995), respectively. On appeal, he argues the district court erred in denying his motion to suppress evidence obtained at the time of his arrest and that the statute upon which the stop was initiated is unconstitutionally vague. The defendant has also raised the issue of ineffective assistance of counsel in the event we find the vagueness issue was not properly preserved.

I. Factual and Procedural Background

In the late evening hours of May 8, 1996, Iowa State Trooper Mary Miller was on routine patrol on a state highway near Anamosa. Miller was parked on the shoulder of the highway with her windows up and police radio on. A black Ford pickup drove by and Miller's attention was drawn to the muffler on the vehicle, which she believed to be excessively loud. She decided to stop the vehicle to investigate and issue a citation based on Iowa Code section 321.436, which prohibits excessive muffler noise. Once the vehicle was stopped, Miller approached and asked the driver, Craig Kinkead, to produce his driver's license. When Kinkead was unable to produce his license, Miller asked the dispatcher to run a check on his license status. The check disclosed that Kinkead's license was suspended and that an outstanding warrant existed for his arrest. Miller called for assistance from Anamosa police and with their help, arrested Kinkead and conducted an inventory search of Kinkead's vehicle prior to towing.

During the search, Anamosa police officer Andy Bowers discovered two small plastic bags containing a cream-colored, rock-like substance inside an empty cassette case in the console of the vehicle. Field tests conducted by the officers indicated that the substance was crack cocaine. Anamosa officer Jeff Frankfurt discovered six plants on the passenger-side floorboard of the vehicle which field tests indicated to be marijuana. The officers seized the items as evidence and subsequent tests performed by the state crime laboratory confirmed their status as controlled substances.

The State subsequently charged Kinkead by trial information with the following offenses: possession with intent to deliver a controlled substance, manufacturing a controlled substance, and operating a motor vehicle without a valid license. The State later agreed to reduce the possession with intent to deliver charge to the lesser-included offense of possession of a controlled substance. Kinkead filed a motion to suppress all evidence obtained by the search of the vehicle, arguing that Miller did not have the requisite reasonable suspicion to warrant the stop of his vehicle and, therefore, that the subsequent search was illegal under the Iowa and United States Constitutions.

In ruling on the suppression motion, the district court found that Miller had reasonable suspicion to believe the condition of Kinkead's vehicle violated Iowa Code section 321.436, which prohibits excessive muffler noise. Despite the fact that a later inspection of the vehicle revealed that the muffler was in good working condition and did not violate the statute, the court found that Miller's suspicion was reasonable at the time in light of the articulated reasons for her belief that the vehicle violated the statute. The district court therefore denied the defendant's motion to suppress.

The district court found Kinkead guilty on all three counts and sentenced him to an indeterminate term of imprisonment not to exceed five years on the manufacturing conviction, and 160 days each for the charges of possession and operating without a valid driver's license. Kinkead appeals, claiming the district court erred in overruling his motion to suppress evidence obtained in the search of his vehicle and that the statute which formed the basis for the stop of his vehicle is unconstitutionally vague.

II. Scope of Review

Kinkead's argument as to the propriety of the search involves a constitutional right. Therefore, we must make "an independent evaluation of the totality of the circumstances as shown by the entire record." State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995). In conducting our de novo review of the district court's denial of the motion to suppress, we may consider evidence presented at the suppression hearing as well as evidence presented at trial. Id. Our review of the ineffective assistance of counsel claim is also de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).

III. Fourth Amendment Claim

A. Background Legal Principles

The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect individuals against unreasonable searches and seizures by government officials. As a general matter, to be reasonable, a search or seizure must be conducted pursuant to a warrant issued by a judge or magistrate. Searches conducted without a warrant are per se unreasonable unless an exception to the warrant requirement applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Cook, 530 N.W.2d at 731.

One of the well-established exceptions to the warrant requirement is that formulated in Terry v. Ohio, which allows an officer to stop an individual or vehicle for investigatory purposes based on a reasonable suspicion, supported by specific and articulable facts, that a criminal act has occurred or is occurring. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). We have consistently upheld searches based on this exception to the warrant requirement. See, e.g., State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995); State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993); State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993).

In determining whether an investigatory stop of a vehicle complies with the protections provided by the Fourth Amendment, we must consider whether the facts articulated by the officer support the intrusion on the individual's privacy and "whether the scope of the intrusion is reasonably related to the circumstances which justified the intrusion." Mitchell, 498 N.W.2d at 693 (citing State v. Cooley, 229 N.W.2d 755, 760 (Iowa 1975)). The existence of a reasonable suspicion is based on an objective standard: whether the facts available to the officer at the time of the stop would lead a reasonable person to believe that the action taken by the officer was appropriate. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; Mitchell, 498 N.W.2d at 693. An unparticularized suspicion or hunch is not enough to establish reasonable suspicion. Haviland, 532 N.W.2d at 768. However, "an officer may make an investigatory stop with 'considerably less than proof of wrongdoing by a preponderance of the evidence.' " Richardson, 501 N.W.2d at 496-97 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)).

In order to establish reasonable suspicion, the State bears the burden of showing that the officer had " 'specific and articulable cause to support a reasonable belief that criminal activity may have occurred.' " State v. Wiese, 525 N.W.2d 412, 414 (Iowa 1994) (quoting State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980)). If the State fails to carry its burden, the evidence obtained through the investigatory stop must be suppressed. Id. (citing Aschenbrenner, 289 N.W.2d at 619).

B. Legality of Stop

In the instant case, Kinkead argues that the stop of his vehicle was illegal because Trooper Miller lacked reasonable suspicion and any suspicion she did have was merely subjective and cannot withstand an objective review. We find that Miller offered specific and articulable facts to support her belief that the muffler on Kinkead's vehicle violated Iowa Code section 321.436. That section provides: "Every motor vehicle shall at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise...." Iowa Code § 321.436. Miller testified that she heard Kinkead's muffler clearly despite the fact that her windows were up and her police radio was on. That auditory perception gave Miller reasonable suspicion to believe Kinkead's vehicle violated Iowa Code section 321.436.

While auditory perception may be more subjective and difficult to standardize than visual perception, the language of the statute and type of offense necessitate the use of the sense of hearing to determine a violation of the statute. Our court has never considered whether a stop based on an officer's auditory perception is legal under the parameters set forth under Terry. Several other courts, however, have considered the issue and we find their reasoning persuasive.

In State v. Beyer, 441 N.W.2d 919 (N.D.1989), the North Dakota Supreme Court considered a similar case in which an officer stopped a vehicle based on a statute that required every vehicle to be equipped with a muffler to prevent "excessive or unusual noise." Beyer, 441 N.W.2d at 920. The defendant alleged the statute was unconstitutionally vague. In upholding the statute and the stop made by the officer under the statute, the court noted: "To adjudge excessive or unusual noise, officers must rely on their sense of hearing just as...