State v. Thomas

• Decision Date: 22 November 1995
• Docket Number: No. 94-1765,94-1765
• Parties: STATE of Iowa, Appellee, v. Annette THOMAS, Appellant.
• Court: Iowa Supreme Court

Page 658

540 N.W.2d 658

STATE of Iowa, Appellee, v. Annette THOMAS, Appellant.

No. 94-1765.

Supreme Court of Iowa.

Nov. 22, 1995.

Steven A. Berger of Wehr, Berger, Lane & Stevens, Davenport, for appellant.

Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Raines, Assistant County Attorney, for appellee.

Considered en banc.

SNELL, Justice.

Appellant, Annette Thomas, appeals from the district court's denial of her motion to suppress evidence obtained during a search based on a search warrant and review of the sentence imposed by the district court following her conviction for possession of a controlled substance with intent to deliver. Because we overturn the district court's denial of the motion to suppress, we need not reach the issue of sentencing.

I. Factual and Procedural Background

In the spring of 1992, and again in the fall of 1993, the Scott County Drug Task Force undertook sting operations focusing on narcotics sales being conducted at a Davenport tavern known as "The Bar." The operations resulted in more than thirty arrests for delivery of crack cocaine and for solicitation to deliver crack cocaine during the summer of 1992 and in September of 1993. These initial operations focused on the foot traffic entering and leaving The Bar with the subjects being found to have been constantly entering and leaving The Bar.

When the second operation concluded and the weather became somewhat colder, it became clear the subjects of the investigation were no longer congregating outside The Bar, but were going inside. For this reason, in January of 1994, the police department began using confidential informants and uniformed officers resulting in eight controlled buys of crack cocaine. These buys were made from eight different individuals, five of whom were identifiable. The buys occurred on four separate occasions with the last purchase taking place on February 1, 1994. All but one of the identified individuals have criminal histories relating to controlled substances.

On February 2, 1994, Detective Douglas Devine of the Davenport Police Department signed an application for a search warrant to search The Bar. In the application, he described the location of The Bar by its street address and the floor it occupies in the building. He requested to search, "All persons located inside the premises identified as the location to be searched, including persons on the premises at the time the warrant is signed, and departing thereafter." In an attachment to the application, the officer summarized the ongoing investigation and its results, including the thirty arrests and eight controlled buys. He also named the identified individuals who were arrested as a result of the controlled buys, as well as their criminal drug histories. He also stated he had observed many individuals in The Bar carrying crack cocaine and that many of the sales transactions take place in public view of the other Bar customers. He made no statements regarding ever having seen weapons on the premises. He then stated that during the time he spent in The Bar, "a vast majority of the persons on the premises are either selling or holding crack cocaine at any time," and he believed that "all of the people present on the premises at any time, are probably in possession of either weapons or controlled substances."

The warrant was issued on February 2, 1994, a Wednesday, at 1:30 p.m. The warrant described The Bar only by its street address and main floor location and authorized the search of "All persons located inside the premises identified as the location to be searched, including persons on the premises at the time the warrant is signed, and departing thereafter." Police did not execute the warrant until approximately 6:30 p.m. on Thursday, February 3, 1994.

When police executed the warrant, everyone inside The Bar was seized, handcuffed, and searched. When police entered, Annette Thomas, the appellant, was seated beside Melvin Harris, one of the known drug dealers named in the warrant application. Thomas was never personally named in the warrant application. Upon searching Thomas, a Davenport police officer confiscated a plastic bag containing approximately 3.2 grams of crack cocaine which Thomas had in her pants.

On March 7, 1994, the assistant county attorney filed a Trial Information charging Thomas with possession with intent to deliver a schedule II controlled substance and violation of the Iowa drug tax act. See Iowa Code §§ 124.206, 124.401(1)(c)(3), ch. 453B (1993). Thomas was arraigned on July 25, 1994 and filed a motion to suppress evidence resulting from the warranted search on July 27, 1994. The motion argued the warrant was overbroad and not timely executed in violation of the Fourth Amendment of the United States Constitution and Article 1 section 8 of the Iowa Constitution. Argument on the motion was held on August 10, 1994, and on August 19, 1994, Judge David Schoenthaler filed an order denying it.

Thomas' jury trial began on October 3, 1994. Following the State's case, Judge Schoenthaler sustained Thomas' motion for a directed verdict as to the tax stamp violation. The jury later returned a verdict of guilty for possession with intent to deliver. On October 21, 1994, Thomas was sentenced to a term not to exceed ten years and a fine of $1000. Thomas appeals arguing the district court erred in permitting testimony outside the four corners of the warrant application at the suppression hearing, and that the warrant was an illegal overbroad general warrant in violation of the Fourth Amendment.

II. Standard of Review

Because Thomas challenges the validity of the search warrant on constitutional grounds, our standard of review is de novo. State v. Todd, 468 N.W.2d 462, 466 (Iowa 1991); State v. Weir, 414 N.W.2d 327, 329 (Iowa 1987).

III. Validity of the Search Warrant

Thomas first raises the argument the district court judge acted improperly at the suppression hearing by considering additional testimony outside that contained in the affidavits presented in the warrant application. It is clear from the record in this case the district court judge did in fact consider the testimony of officer Devine in reaching his decision, as he states in his order denying suppression that the "all persons" language is proper when "supported by the narcotics officer's knowledge that drugs are easily concealed and the dealers often have their girlfriends hold drugs for them," and that "a search of only the known drug dealers could be easily frustrated since dealers often have their girlfriends hold their drugs for them." None of this information is present in Devine's affidavit attached to the warrant application--it was only presented in Devine's testimony at the suppression hearing.

It is well established in Iowa jurisprudence that the issuance of a search warrant is to be "tested entirely by the recitals in affidavits and the magistrate's abstracts of oral testimony endorsed on the application. No other evidence bearing on the issue should be received in a suppression hearing." State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975); see also State v. Seager, 341 N.W.2d 420, 426 (Iowa 1983); State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976). This court may not consider any other relevant information present in the record which was not presented to the neutral magistrate issuing the warrant. Seager, 341 N.W.2d at 426. A warrant whose affidavits and application are lacking as to the probable cause determination may not be "rehabilitated or fortified by later testimony." State v. McManus, 243 N.W.2d 575, 577 (Iowa 1976). Professor LaFave has explained this as follows:

[A]ny probable cause review in response to a motion to suppress must be made upon the basis of the information presented to the magistrate at the time the warrant was issued; a defective warrant cannot be resuscitated by consideration of additional information now available or even of information available when the warrant was obtained but which was not communicated to the magistrate.

1 Wayne R. LaFave, Search and Seizure § 3.1(d) (2d ed. 1987). The Iowa rule is analogous to Federal Rule of Criminal Procedure 41(c). See United States v. Damitz, 495 F.2d 50, 54 (9th Cir.1974); United States v. Brouillette, 478 F.2d 1171, 1176-77 (5th Cir.1973); United States v. Bolton, 458 F.2d 377, 378 (9th Cir.1972).

Because there is no mention of the testimony that girlfriends of the drug dealers tend to hold drugs for the dealers or that the illegal drugs are small and easily concealed, we cannot therefore consider this in making our determination whether probable cause existed to support the scope of the warrant to search all persons present in The Bar.

The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment was passed in response to the use of general warrants in England and writs of assistance used in the colonies. See generally Stanford v. Texas, 379 U.S. 476, 481-85, 85 S.Ct. 506, 509-12, 13 L.Ed.2d 431, 434-37 (1965). By requiring a warrant to particularly describe the persons or places to be searched and things to be seized, it forbids the use of general warrants. Under the Fourteenth Amendment due process clause, these protections are enforceable against the states as well as the federal government. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1083 (1961).

In order that the Fourth Amendment right of privacy from arbitrary police intrusion be left intact, nothing should be left to the discretion of the official executing the warrant....