State v. Lewis

• Decision Date: 25 February 2004
• Docket Number: No. 02-1105.,02-1105.
• Citation: 675 N.W.2d 516
• Parties: STATE of Iowa, Appellee, v. Melvin Haywood LEWIS, Appellant.
• Court: Iowa Supreme Court

675 N.W.2d 516

STATE of Iowa, Appellee, v. Melvin Haywood LEWIS, Appellant.

No. 02-1105.

Supreme Court of Iowa.

February 25, 2004.

Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendell, Assistant County Attorney, for appellee.

WIGGINS, Justice.

This appeal involves a decision by the district court overruling Melvin Lewis's motion to suppress evidence obtained through a warrantless search of his fenced backyard and enclosed rear porch. At trial, Lewis was found guilty of the charge of possession of marijuana in violation of Iowa Code section 124.401(5) (1999). On appeal, he challenges the trial court's suppression ruling as well as the court's imposition of a $125 law enforcement initiative surcharge, which Lewis claims is a violation of the ex post facto clauses of the federal and state constitutions. We conclude the district court should have granted Lewis's motion to suppress. The police cannot rely on reasonable suspicion or hot pursuit as the basis for a warrantless entry into Lewis's fenced backyard. Thus, we reverse and remand for a new trial.

I. Background Facts and Proceedings.

As part of its crime prevention program, the Des Moines Police Department obtained form letters from property owners in high crime areas, which read as follows:

Dear Chief Moulder:

We have considerable concern about the illegal activities in our neighborhood. We are especially concerned about the loitering and trespassing on our properties in this area. Various events which have occurred in the neighborhood are infringing upon the rights of area residents.

This letter is to authorize you to arrest anyone who is illegally on the property I own/manage located at:

The following is a listing of my tenants:

Name Address & Apt. No Melvin Lewis 1600 Forest Des Moines, IA¹

I will advise you of any change in tenants of my property. If needed, you can contact me at phone numbers listed below. Thank you for your assistance.

Sincerely,

Owner's Signature

This property is located in Officer Michael Coughlin's regular patrol area. Prior to July 24, 2000, Officer Coughlin contacted the tenant, Lewis, and discussed the no-trespass letter with him.

On July 24, 2000, at around 9:30 p.m., Officer Coughlin was on routine patrol in the area. From his vehicle, he observed several people in the fenced backyard and on the enclosed porch located inside the fence at the rear of the property. The fenced backyard and enclosed rear porch were clearly visible from the street. A gated fence completely enclosed the backyard. Officer Coughlin did not see Lewis on the premises.

Officer Coughlin knew the department had a no-trespass letter on file regarding this property. Officer Coughlin determined the no-trespass letter was current and decided to investigate. As Officer Coughlin and his partner pulled their marked squad car into Lewis's driveway, the officers noticed two individuals standing inside the gate of the fenced backyard start "rapidly walking" towards the enclosed rear porch where there was a large group of people. Officer Coughlin exited his vehicle and told the two individuals: "Stop, police." There is no indication as to whether these two individuals heard Officer Coughlin's command, but it is clear they did not acknowledge it. They continued to proceed to the enclosed rear porch. As these two individuals attempted to enter the enclosed rear porch, Officer Coughlin shouted, "no," entered the fenced backyard, and ran to the enclosed rear porch. The two individuals attempted to enter the enclosed rear porch's door, where Officer Coughlin could smell the odor of recently smoked marijuana.

Officer Coughlin ordered everyone off the enclosed rear porch, because he and his partner were outnumbered. He felt it was necessary for the officers' safety to handcuff and pat down the individuals he ordered off the enclosed rear porch. All but two individuals followed Officer Coughlin's commands to step down from the enclosed rear porch. The two individuals remaining on the enclosed rear porch were the tenant, Lewis, and his female companion. Lewis and his companion were not the two individuals who Officer Coughlin saw earlier walking towards the enclosed rear porch.

As Officer Coughlin and his partner were in the process of handcuffing the persons and patting them down, Sergeant Moran appeared at the scene. Sergeant Moran noticed that two individuals were still on the enclosed rear porch. An officer at the scene informed Sergeant Moran it was the tenant and his female companion. Sergeant Moran then inquired whether anyone had checked Lewis and his female companion for weapons. An officer on the scene answered in the negative. Sergeant Moran proceeded to enter the enclosed rear porch to check for weapons. He asked Lewis to stand. When Lewis stood, Sergeant Moran saw a bag of what he believed to be marijuana between Lewis's feet. He immediately placed Lewis is in handcuffs. Sergeant Moran searched the rest of the enclosed rear porch. He saw a paper bag on the east end of the enclosed rear porch. He opened the bag and found several bags of marijuana and a gun. The officers took Lewis into custody, and the State charged him with possession of marijuana with intent to deliver while having immediate control of a firearm in violation of Iowa Code sections 124.401(1)(d) and 124.401(1)(e) and failure to affix a drug tax stamp in violation of Iowa Code sections 453B.3 and 453B.12.

Lewis filed a motion to suppress claiming the entrance onto his property violated his rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. The district court concluded the officers acted reasonably in attempting to ascertain whether the individuals on the property had permission to be there. It further concluded when two of the individuals attempted to evade the officers, Officer Coughlin acted reasonably in entering the fenced backyard and following these individuals to the enclosed rear porch. Because the officer smelled recently smoked marijuana coming from the enclosed rear porch, exigent circumstances existed justifying the decision to secure the persons in the area of the enclosed rear porch, to enter the enclosed rear porch, and to check the individuals on the enclosed rear porch for weapons. For these reasons, the district court overruled the motion to suppress.

At trial, the jury only convicted Lewis of the lesser included offense of possession of marijuana. The district court granted Lewis a deferred judgment and placed him on informal probation. Lewis failed to sign up for informal probation, and the district court placed him on formal probation. When Lewis violated formal probation by testing positive for drugs on two separate occasions, the district court issued a warrant for his arrest. The district court revoked Lewis's deferred judgment and sentenced him to sixty days in the county jail. Additionally, the district court ordered Lewis to pay a fine of $250, a $5 DARE surcharge, and a $125 law enforcement initiative surcharge. The district court also ordered the Department of Transportation to revoke Lewis's driving privileges. Lewis appeals.

II. Scope of Review.

This appeal involves constitutional issues. Therefore, the court's review is de novo. State v. Reinier, 628 N.W.2d 460, 464 (Iowa 2001). The court makes an "independent evaluation of the totality of the circumstances as shown by the entire record." State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). "We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings." Id.

III. Issues.

Lewis raises two issues on appeal: (1) whether the search of Lewis's property and seizure of the evidence by the officers violated the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution; and (2) whether the imposition of the $125 law enforcement initiative surcharge violated the ex post facto clauses of the federal and state constitutions. The State claims Lewis failed to preserve error by not challenging the intrusion onto the curtilage.

IV. Preservation of Error.

It has long been the position of this court that we will not decide a case based on a ground not raised by a party in the district court. Kriv v. Northwestern Sec. Co., 237 Iowa 1189, 1195, 24 N.W.2d 751, 754 (1946). This rule applies to constitutional issues raised for the first time on appeal. State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). Error preservation is based on principles of fairness. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). It is unfair for us to consider an issue that the parties did not give the trial court an opportunity to consider. Id.

Based on the motion, resistance, and briefs filed, the district court framed the issues raised as follows:

The defendant argues that the police officers had no legal right to enter upon the backyard of the property, to detain any of the persons on the property or to conduct any search of the persons located there or of the back porch. He urges that the "trespass letter" is of no legal consequence, and gives the police no authority beyond traditional legal principles. Defendant concludes that the contraband found by the police was the result of an illegal search and must be suppressed.

(Emphasis added.)

It is apparent the district court considered Lewis's challenge to the intrusion onto the curtilage. The issue is properly before us.

V. General Legal Principles.

The Fourth Amendment to the United States Constitution assures "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Fourth Amendment...