State v. Watts, 10–0760.

• Decision Date: 19 August 2011
• Docket Number: No. 10–0760.,10–0760.
• Parties: STATE of Iowa, Appellee,v.Alan Lee WATTS, Jr., Appellant.
• Court: Iowa Supreme Court

801 N.W.2d 845

STATE of Iowa, Appellee,

v.Alan Lee WATTS, Jr., Appellant.

No. 10–0760.

Supreme Court of Iowa.

Aug. 19, 2011.

Mark C. Smith, State Appellate Defender, Dennis D. Hendrickson, Assistant Appellate Defender, and Mary K. Conroy, Student Legal Intern, for appellant.Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.MANSFIELD, Justice.

Alan Lee Watts, Jr. appeals his drug-related convictions, contending the district court erred in denying his motion to suppress evidence obtained from searching his apartment. Although we find the initial warrantless sweep of Watts' apartment was unlawful due to a lack of exigent circumstances, we nonetheless affirm his convictions. The officers later procured a warrant to conduct a full search of the apartment, the evidence in question was located during that search, and the State has demonstrated that the warrant would have been sought and granted even without the information from the earlier improper sweep.

I. Background Facts and Proceedings.

On May 5, 2009, a special agent with the division of narcotics enforcement in Davenport performed a routine traffic stop and discovered marijuana. The driver of the stopped vehicle was questioned and admitted to the special agent that he had obtained the marijuana from “a subject” residing at 7110 Hillandale Road, apartment 12. The driver further stated “the subject” had a large quantity of marijuana inside the apartment.

The special agent relayed the information to Corporal Gil Proehl and Detective Scott Lansing of the Davenport Police Department. They proceeded to the Hillandale address to investigate. The apartment in question was situated in a three-story building that had four apartments on each floor. A common hallway on each floor separated two apartments on each side and connected to front and back staircases. The common hallway was also split in half by a door with two apartments on each side of the doorway. Apartment 12 was located in the southeast corner of the third floor.

Officers Proehl and Lansing ascended to the third floor via the west stairwell. As the officers opened the common hallway door leading to apartments 11 and 12, they immediately noticed a strong smell of raw marijuana. Detective Lansing sniffed the door jambs to apartments 11 and 12 and concluded the odor was clearly emanating from apartment 12. Detective Lansing could also hear a television playing inside apartment 12. At that time, Officers Proehl and Lansing asked two other officers who were waiting downstairs to come up and discuss how to proceed. The four officers decided to conduct a “knock and talk,” an investigatory technique in which law enforcement officers knock on the door of a dwelling seeking voluntary conversation and eventually consent to search. See, e.g., State v. Reinier, 628 N.W.2d 460, 466 (Iowa 2001).

Detective Lansing knocked on the door and Watts answered. As soon as Watts opened the door, an overpowering odor of raw marijuana wafted out of the apartment. When Detective Lansing identified himself as a police officer, Watts attempted to go back into the apartment and shut the door. At this time, the officers detained Watts, took him into the hallway, and secured him with handcuffs. The officers then entered the apartment. During a protective sweep of the apartment, the officers saw marijuana, packaging materials, and paraphernalia (including a large water bong) in plain view in the living room. No other persons were present in the apartment.

After performing the sweep, Officer Proehl provided Miranda warnings to Watts and requested consent to search the apartment fully. Watts initially said “he was caught,” but did not provide unequivocal consent. Therefore, Detective Lansing prepared an application for a search warrant for the apartment.

The narrative portion of the warrant application began:

On 5–5–09 members of the Tactical Operations Bureau, Davenport Police Department received information that a subject from 7110 Hillandale Road # 12 was selling marijuana from the apartment, and had a large quantity [of] marijuana inside the apartment. With this information members of the Tactical Operations Bureau conducted an investigation.

The application then recited the events that occurred after the officers arrived at the apartment. The application also had a standard “informant's attachment” with all boxes checked, but no specifics provided.¹

Based upon this application, a magistrate approved the requested search warrant. However, in doing so, the magistrate specifically crossed out the “informant's attachment.” The magistrate also wrote “none” as to whether there had been reliance on information supplied by a confidential informant.

After obtaining the warrant, the officers performed a full search of the apartment and discovered almost five pounds of marijuana, a grow operation in a bedroom closet with six live plants and a dead plant on a drying rack, scales, grinders, packaging materials, and drug paraphernalia. No drug tax stamps were attached to the marijuana or packaging.

Watts was subsequently charged by trial information with two counts of possession with the intent to deliver in violation of Iowa Code section 124.401(1)( d ), two counts of failure to affix drug tax stamps in violation of Iowa Code section 453B.12, and one count of possession of drug paraphernalia in violation of Iowa Code section 124.414 (2009).

On July 17, 2009, Watts filed a motion to suppress, arguing “the search without a warrant was without consent, probable cause or exigent circumstances, and the search pursuant to a warrant was on information ... without probabl[e] cause or in the alternative was based on information obtained by the prior unlawful search without a warrant.”

On August 19, 2009, a hearing on the motion to suppress was held. Officer Proehl was the only witness to testify, and he described the foregoing events. The district court denied the motion to suppress.

Watts waived his right to a jury trial and proceeded to a bench trial on the minutes of testimony. The district court found Watts guilty on all five charges. Watts was sentenced to five years imprisonment on each of the possession with the intent to deliver charges and the drug stamp violations, all class “D” felonies, as well as thirty days on the drug paraphernalia charge, a simple misdemeanor. See Iowa Code §§ 124.401(1)( d ), 453B.12, 124.414(3). The district court suspended all of the sentences and placed Watts on probation for five years. Watts now appeals the denial of his motion to suppress.²

II. Standard of Review.

Because this case concerns the constitutional right to be free from unreasonable searches and seizures, our review of the district court's suppression ruling is de novo. State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010). We make an independent evaluation of the totality of the circumstances as shown by the entire record. Id.

III. Merits.

A. Initial Warrantless Entry. We first consider whether the initial warrantless entry into Watts' apartment violated his constitutional rights under the Fourth Amendment. The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures. State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). In determining whether an exception to the warrant requirement applies, “the court must assess a police officer's conduct based on an objective standard.” State v. Simmons, 714 N.W.2d 264, 272 (Iowa 2006).

Searches conducted without a warrant are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); accord Reinier, 628 N.W.2d at 464. These exceptions include: (1) search based on probable cause coupled with exigent circumstances, (2) consent search, (3) search incident to a lawful arrest, and (4) search of items in plain view. Naujoks, 637 N.W.2d at 107. The State has the burden of proving “by a preponderance of the evidence that a warrantless search falls within one of these exceptions.” Id. at 107–08.

The State concedes it did not have a warrant when the officers initially entered Watts' apartment, but seeks to justify the warrantless entry based upon exigent circumstances: “[W]arrants are generally required to search a person's home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393–94, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290, 301 (1978) (quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948)).

Exigent circumstances sufficient to justify a search and seizure without a warrant usually include danger of violence and injury to the officers or others; risk of the subject's escape; or the probability that, unless taken on the spot, evidence will be concealed or destroyed.

State v. Jackson, 210 N.W.2d 537, 540 (Iowa 1973). Exigent circumstances must be supported by “specific, articulable grounds.” Naujoks, 637 N.W.2d at 109. Here the State argues that it needed to enter and clear the apartment because of the possibility of others in the apartment who might either pose a threat to the officers or destroy evidence.

A “protective sweep” is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory inspection of those places in which a person might be hiding.

Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276, 281 (1990). In order to justify a protective sweep,

there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably...