State v. Padavich

Decision Date19 July 1995
Docket NumberNo. 94-117,94-117
Citation536 N.W.2d 743
PartiesSTATE of Iowa, Appellee, v. Christopher Fenton PADAVICH, Appellant.
CourtIowa Supreme Court

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds Lapointe, Asst. State Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Bridget A. Chambers, Asst. Atty. Gen., Mark Kruse, County Atty., and John Courter, Sp. Prosecutor, for appellee.

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

LAVORATO, Justice.

Christopher Fenton Padavich appeals from judgment of conviction and sentence for possession of marijuana with intent to deliver and failure to affix drug tax stamps. He raises four issues. First, the anticipatory search warrant at issue is invalid under Iowa Code sections 808.3 and 808.4 (1993). So the district court erred in overruling Padavich's motion to suppress the evidence seized under the warrant. Second, the jury verdict on the element of possession for both offenses is not supported by substantial evidence. Third, Padavich's trial counsel was ineffective because, before sentencing, counsel failed to alert the court to alleged jury misconduct that bore on the jury's determination of Padavich's guilt. Finally, the district court abused its discretion in sentencing Padavich by considering two past convictions that had been reversed.

After carefully considering all the issues raised, we come to the following conclusions. First, under our recent decision in State v. Gillespie, 530 N.W.2d 446, 448 (Iowa 1995), anticipatory search warrants are invalid under sections 808.3 and 808.4.

However, the district court's error in overruling Padavich's motion to suppress on the anticipatory search warrant issue is harmless. Under the remaining facts presented in the affidavit, the magistrate correctly concluded there was probable cause to issue the search warrant.

Second, we conclude substantial evidence supports the jury's finding of possession. Third, we think Padavich's ineffective assistance of counsel claim is more appropriate for postconviction relief consideration because the record is inadequate to decide it on appeal. Finally, the district court did not abuse its discretion in sentencing Padavich. Padavich's two past convictions--since reversed--were not a basis for the court's sentence.

We affirm.

I. Background Facts.

On February 19, 1993, magistrate N. Jean Clark issued two search warrants authorizing a search of Padavich's person and two residences owned by his parents. One of these residences was located near the Chariton River Baptist Church in Appanoose County (the Brushy Church residence). The other residence was located in Walnut Township. The warrants additionally authorized the search of nine cars owned by Padavich or his parents. Padavich challenges only the validity of the search of the Brushy Church residence.

The affidavit of police officer Michael Seay was submitted in support of the warrants. The affidavit relates that a confidential informant had arranged to sell three kilograms of cocaine to two men from New York. Padavich had introduced the parties to each other at the Brushy Church residence, where the sale was to take place on February 19.

The affidavit also stated that the confidential informant had seen Padavich with a "handful" of marijuana at the Brushy Church residence on February 16, 1993. According to the confidential informant, the two had smoked some of that marijuana on that occasion.

The affidavit mentioned that another confidential informant had provided the police with information that on or about May 10, 1988, Padavich was growing marijuana at his Walnut Township residence.

The affidavit also stated a John Abbott had told officer Seay on March 23, 1991, that Abbott owed Padavich money for marijuana. According to the affidavit, Abbot had also said that he had seen marijuana at the Walnut Township residence in January and March of 1991. Additionally, Abbott stated that Padavich wanted him to participate in the purchase of one kilogram of cocaine in New York. The affidavit provided no dates as to this last item of information.

Finally, the affidavit stated that a controlled delivery had been arranged whereby the first confidential informant would deliver one-half of a kilogram of real cocaine and two and one-half kilograms of fake cocaine at the Brushy Church residence on February 19, 1993.

The controlled delivery did not occur because Padavich left the Brushy Church residence before the confidential informant arrived. Officers then executed the search warrant. The police found bags of marijuana in various containers. The marijuana totaled about four and one-half pounds. No tax stamps were found on any of the seized marijuana.

II. Background Proceedings.

The State filed a three-count trial information against Padavich. Count I was for possession of marijuana with intent to deliver. See Iowa Code § 124.401(1)(d). Count II was for failure to affix drug tax stamps. See Iowa Code §§ 453B.1, 453B.3, 453B.7, 453B.12. Count III alleged prohibited acts. See Iowa Code § 124.401(1)(b)(2)(b). Count III was later dismissed on the State's motion.

Padavich filed a motion to suppress any and all evidence obtained in the search of the Brushy Church residence. The State resisted. After a hearing, the court overruled Padavich's motion.

The case proceeded to a jury trial. The jury returned a verdict of guilty on each of the remaining counts. The court overruled Padavich's pro se posttrial motions for new trial and motion for continuance.

The court entered judgment against Padavich on both counts and sentenced him to five years on each charge. The court ordered the sentences to run consecutively. The court also ordered Padavich to pay a $5000 fine and a thirty percent surcharge on each count.

It is from the judgment of conviction and sentence that Padavich appeals.

III. The Warrant Issues.

The parties raise three warrant issues, concerning whether (1) anticipatory search warrants are recognized under Iowa law, (2) the existing facts in the affidavit in support of the warrant application provided probable cause to search the Brushy Church residence, and (3) the federal good-faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is recognized under Iowa law. Our disposition requires us to reach only the first two issues.

A. Anticipatory search warrant. The affidavit in support of the warrant provided in pertinent part that

[a] controlled delivery of the cocaine has been arranged for Friday, February 19th 1993, [confidential informant] # N2088 will deliver one half of a kilo-gram (approx. 1 lb. 1 oz.) of real cocaine and two and a half kilo-grams of fake cocaine to Christopher Padavich in exchange for sixty thousand dollars ($60,000). This will occur at the residence described earlier which is next to the Chariton River Baptist Church a.k.a Brushy Church, in Independence township in Appanoose County, Iowa.

The parties do not dispute that this section of the warrant--pertaining to a search for cocaine--was, indeed, anticipatory. This brings the question down to whether the legislature intended to recognize anticipatory warrants under Iowa Code sections 808.3 and 808.4. We very recently decided it did not in State v. Gillespie, 530 N.W.2d 446, 448 (Iowa 1995).

In Gillespie, we concluded that under the plain meaning of sections 808.3 and 808.4, "probable cause must exist at the time the warrant is issued and not at some future time when the warrant is executed." Id. In other words, the facts presented to the magistrate in the affidavit in support of the warrant application must exist at the time the warrant is applied for.

That was not the case here. Impliedly, that part of the warrant regarding the search for cocaine was issued conditioned upon the future existence of probable cause. Probable cause would exist once Padavich was present at the Brushy Church residence to receive delivery of the contraband. These anticipated facts were nonexistent at the time the warrant issued.

Although the law was not settled when the district court made its ruling on Padavich's motion to suppress, it nonetheless erred in overruling Padavich's motion. However, this error is not fatal to the State's case if the evidence seized from the Brushy Church residence is admissible on a different ground appearing in the record.

B. Probable cause for issuance of search warrant to search Brushy Church residence. Padavich contends there was no probable cause for the magistrate to issue a search warrant for the Brushy Church residence. Most of the information presented to support the issuance of the warrant for the Brushy Church residence centered around the Walnut Township residence. Padavich insists this information does not establish probable cause to search the Brushy Church residence because the information was stale, too vague, and lacked any nexus to this residence.

The application in support of the warrant also contains information that a confidential informant had seen Padavich on February 16, 1993, at the Brushy Church residence with a handful of marijuana and that the two had smoked some of it there. Padavich thinks this information was insufficient to support the issuance of a search warrant for the Brushy Church residence on February 19, 1993. In Padavich's words, this is so "because logic tells us that a 'handful' of marijuana would likely be consumed in three days time."

Probable cause to issue a search warrant exists when the facts presented to the magistrate show that a reasonably prudent person would believe a crime was committed at the place to be searched or that evidence of a crime could be located there. Close questions are generally resolved in favor of the preference for warrants. State v. Todd, 468 N.W.2d 462, 466 (Iowa 1991) (citations omitted).

As this court has noted,

[t]he task of the...

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