State v. Strough
| Decision Date | 05 October 2011 |
| Docket Number | No. 1-526 / 10-1544,1-526 / 10-1544 |
| Parties | STATE OF IOWA, Plaintiff-Appellant, v. DARREN LEE STROUGH and AMBER KRISTINE STROUGH, Defendants-Appellees. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Taylor County, Brad McCall, Judge.
The State seeks discretionary review of a suppression ruling that found a search warrant was not supported by probable cause. REVERSED.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, and Clinton L. Spurrier, County Attorney, for appellant State.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellee Darren Strough.
Catherine K. Levine, Des Moines, for appellee Amber Strough.
Considered by Vogel, P.J., and Vaitheswaran and Mullins, JJ.
The State seeks discretionary review of a suppression ruling that found a search warrant was not supported by probable cause. Upon finding that information from the two named informants was stale, and after a Franks hearing determination that certain statements from the affidavit in support of search warrant application should be stricken, the district court found the remaining information provided in the search warrant application insufficient to establish probable cause for the issuance of the warrant. On our de novo review, we find the district court should have considered the information from the two named informants as corroboration of information supplied by the confidential informant, and thus not improper as stale. Even assuming that certain statements were properly stricken pursuant to a Franks analysis, the magistrate had probable cause to issue the search warrant. We therefore reverse the district court as to its findings regarding probable cause supporting issuance of the search warrant.
On April 21, 2010, the Taylor County District Court issued a search warrant for the property of Darren and Amber Strough, located in rural Taylor County. The search warrant application was submitted by Deputy Robert Hitch, Tri-County Narcotics Officer for Taylor, Adams, and Ringgold counties.
The search warrant application contained information provided by a confidential informant, who had charges pending in a separate case. The confidential informant obtained information regarding the Stroughs within ten days before the search warrant application was submitted in April 2010. The confidential informant told Deputy Hitch he had been in Darren's home and hadseen three garbage bags full of cultivated marijuana and several marijuana plants in the home that were approximately six feet tall. The confidential informant also believed the red barn, located southeast of the Stroughs' house, contained 100 to 150 marijuana plants and housed numerous grow lights.
The search warrant application also contained information provided to Deputy Hitch by two named informants. The first, a statement made in October 2008—eighteen months prior to the search warrant application—by Dean Hultquist, informed the affiant and Iowa Division of Narcotics Enforcement Special Agent Mike Mittan of his knowledge of Darren Strough. Hultquist admitted to purchasing marijuana from Darren in the past and conveyed that he knew Darren grew marijuana, but was not exactly sure of the location.
The second statement was made in September 2009 during an interview with Richard Whipple. Whipple's interview was held as part of a cooperation agreement for pending charges against him of possession with the intent to distribute marijuana. Whipple indicated that he had knowledge of Darren's involvement in marijuana cultivation and distribution and that he had purchased marijuana from Darren in the past. Whipple also stated that he knew Darren cultivated marijuana in his home and various outdoor locations and that marijuana was also stored in Darren's bedroom or basement. On one particular instance in February 2009, Whipple observed approximately 100 marijuana plants on a table with two platforms. He further stated that Darren had been growing marijuana for more than ten years and that Darren used a "cloning" cultivation method. Whipple also disclosed that Darren drove a gold Blazer. Deputy Hitch corroborated this information in the affidavit, stating he knew"D. Strough to drive a gold Blazer with Iowa license plate [number omitted] and . . . registered to Larry James Refer."
Deputy Hitch verified the location of the Stroughs' house by using the description provided by the confidential informant, his personal knowledge gained from his "on-going investigation of Darren Lee Strough . . . and his involvement in the manufacturing of marijuana since 2008," by checking driver's license information (which verified Amber Strough resided at the specified location), and acquiring the home's utility records, which were in Darren Strough's name. Deputy Hitch noted in the search warrant application that, "[t]he observations made by [the confidential informant] are consistent with that of an indoor marijuana cultivation site and/or operation."
The search warrant application also contained information provided by Deputy Hitch. Not only did Deputy Hitch secure utility records to confirm the location of the Stroughs' home, he also used them to compare the electrical usage of the Stroughs with two neighboring homes. After speaking with an employee of the rural electric company and undertaking a comparative review of the utility records, Deputy Hitch concluded, "these bills indicate an abnormally high kilowatt usage compared to similar properties in the area." Deputy Hitch used all of this information, as well as his two years of knowledge and experience as a narcotics officer to conclude:
[T]he physical characteristics and description of the residence, barn, and property at 2572 130th Street, Lenox, Iowa are consistent with that of an indoor/outdoor marijuana cultivation site. The isolated barn could/would support an indoor marijuana cultivation operation. A person(s) involved in marijuana cultivation would perceive this type of location as secure.
On April 21, 2010, a magistrate issued a search warrant for the property of Amber and Darren Strough. After executing the search warrant, Amber was charged with possession of a controlled substance (marijuana; third offense) and child endangerment. Darren was charged with multiple counts of possession of a controlled substance and child endangerment. Amber and Darren each filed a motion to suppress evidence seized during the search. The State resisted both motions. After the suppression hearing, the district court entered a ruling, granting each defendant's motion to suppress. The supreme court granted the State's application for discretionary review and stayed further proceedings pending resolution on appeal.
Our review of a district court's ruling regarding probable cause for issuance of a search warrant is de novo. State v. Myers, 570 N.W.2d 70, 72 (Iowa 1997). Under our de novo review, we must determine whether the district court properly decided whether the magistrate had a substantial basis for concluding that probable cause existed. See State v. Green, 540 N.W.2d 649, 655 (Iowa 1995) (). A determination regarding whether probable cause exists is limited in scope to "only that information, reduced to writing, which was actually presented to the magistrate at the time the application for warrant was made." State v. Godbersen, 493 N.W.2d 852, 855 (Iowa 1992).
The State alleges the search warrant application submitted by Deputy Hitch did not contain stale information. It argues the information provided by the two named informants is not too remote in time because it "provided proof of an ongoing marijuana cultivation." Amber responds by asserting the information provided by the two named informants was stale. She does not, however, set forth an argument addressing why the claims were stale, but merely emphasizes that (i) no marijuana plants were seized from the residence or any outdoor location, (ii) she had no criminal history involving drugs, and (iii) no evidence of cultivation or cloning was found. Darren responds to the State's claim that the information was not stale by asserting Hultquist's statements in October 2008 and Whipple's statements in September 2009 were simply too remote in time.
Important in determining whether probable cause exists is whether the information upon which a belief is based is "current and not remote in time." State v. Gogg, 561 N.W.2d 360, 367 (Iowa 1997). When considering the timeliness of information provided in an affidavit, "the observations are assumed to have occurred on the most remote date within the time period mentioned in the affidavit." Id. However, information does not become stale by the passage of time alone. Id. Instead, the court will consider the circumstances of each case. Id. Those circumstances deemed relevant by the court include:
See id. (internal citations omitted).
Crimes involving drugs may be classified as isolated events or ongoing activities, depending on the facts involved. See id. (). Such a classification is important because it influences the amount of time it takes...
To continue reading
Request your trial