Opinion
No. 5-980 / 04-1271
Filed March 1, 2006
Appeal from the Iowa District Court for Webster County, Fredrick E. Breen, District Associate Judge.
Kenneth Carter appeals from the judgment and sentence entered upon his conviction for possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Timothy N. Schott, County Attorney, and Jonathan Beaty, Assistant County Attorney, for appellee-State.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Kenneth Carter appeals from the judgment and sentence entered upon his conviction for possession of marijuana. We affirm.
Background Facts and Proceedings.
In March of 1997, Fort Dodge police obtained a search warrant for Carter's home. As a result of the search, the State charged Carter with a variety of drug-related crimes. Shortly after the arrest, Officer Dennis Mernka referred the case to the Iowa Department of Revenue and Finance (Department) to collect taxes due on the drugs. See Iowa Code ch. 453B (1997) (prescribing a tax on the possession or distribution of certain drugs). On June 16, 1997, the State dismissed the charges against Carter. On December 4, nearly six months later, the Department applied for and obtained an administrative warrant to search Carter's residence and seize any item to satisfy the tax.
The Department claimed Carter owed $6,060 in taxes, interest, penalties, and fees, related to four marijuana plants reportedly found in the March 1997 search.
Officer Mernka, who accompanied agents from the Department as they were executing the administrative warrant, noticed the odor of marijuana emanating from Carter's bedroom and observed marijuana stems in the house. Based on these observations, Mernka called Officer Brett Knippel and requested that he apply for a criminal search warrant. After Knippel obtained the warrant, officers searched the house and discovered marijuana.
The State charged Carter with possession of marijuana based on these discoveries. After a jury trial, Carter was found guilty and the court sentenced him to two days in the Webster County jail and fined him $250. Carter appealed from this conviction, claiming he received ineffective assistance of counsel due to counsel's failure to challenge the constitutionality of the administrative search warrant. The Iowa Supreme Court affirmed Carter's conviction, but preserved the ineffective assistance claim for a possible postconviction relief (PCR) action. State v. Carter, No. 98-1013 (Iowa Dec. 22, 1999). Following Carter's subsequent PCR hearing, the district court concluded that counsel should have been alerted to the claim that the administrative search may have violated the constitutional prohibition against unreasonable searches and seizures. While not ruling on the constitutionality of section 453B.9, the court set aside Carter's conviction and ordered the case be scheduled for retrial.
Prior to the retrial, Carter filed a new motion to suppress, alleging that Iowa Code section 453B.9 (deeming the drug tax stamp a "jeopardy assessment" and authorizing the director to immediately collect the tax by way of a distress warrant) was unconstitutional. Following a hearing, the court overruled Carter's motion to suppress and the case was submitted to the court for a trial on the minutes of testimony. The court thereafter found Carter guilty of possession of marijuana and it again sentenced him to two days in the county jail and fined him $250. Carter appeals from this conviction. He claims the drug evidence seized under the criminal search warrant should have been suppressed as he asserts Iowa Code section 453B violates his constitutional right to be free from unreasonable searches and seizures.
Scope of Review.
Because Carter raises constitutional questions, our review is de novo based upon the totality of the circumstances. State v. McKnight, 511 N.W.2d 389, 391 (Iowa 1994). We presume statutes are constitutional, and place a heavy burden on the challenger to rebut this presumption. State v. Bell, 572 N.W.2d 910, 911 (Iowa 1997) (citing Glowacki v. State Bd. of Med. Exam'rs, 501 N.W.2d 539, 541 (Iowa 1993)). We are reluctant to interfere with the legislature's latitude, and to be found unconstitutional, a statute "must clearly, palpably, and without doubt infringe upon the constitution." Id. (quoting Glowacki, 501 N.W.2d at 541). If it is possible to construe the statute in more than one manner, we must adopt the construction that does not violate the Constitution. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005).
Claims on Appeal.
It must be noted that officers here did obtain a criminal search warrant, during the execution of which the marijuana was discovered and seized. However, Carter's precise constitutional challenge on appeal is not to that search warrant, but rather to the administrative warrant which lead to the probable cause finding supporting the issuance of the criminal search warrant. As the district court noted, the fighting issue is "whether the `unreasonable search and seizure' clause . . . was violated by the issuance of the administrative search warrant, in the execution of which" officers gained probable cause for the criminal warrant. In support of his position, Carter makes a number of very specific arguments, several of which we conclude are waived or not preserved for our review. First, we conclude that, because he did not previously challenge the tax assessment, Carter may not now challenge the warrant by asserting the impropriety of the assessment. See State v. Eames, 565 N.W.2d 323, 328 (Iowa 1997). Moreover, Carter has not preserved for our review other claims asserted in his appeal brief. Our error preservation rule requires that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. Johnston Equip. Corp. v. Industrial Indem., 489 N.W.2d 13, 16-17 (Iowa 1992). Accordingly, we address only those contentions which we find preserved for our review.
Carter did not appeal the assessment nor challenge the constitutionality of section 453B.9 in an administrative proceeding.
Constitutionality of section 453B.9.
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 protects persons from unreasonable intrusions by the government upon a person's legitimate expectation of privacy. State v. Legg, 633 N.W.2d 763, 766-67 (Iowa 2001). This protection includes unreasonable intrusions by law enforcement officers. State v. Loyd, 530 N.W.2d 708, 711 (Iowa 1995). Our supreme court has consistently construed Iowa's constitutional prohibition against unreasonable searches and seizures, article I, section 8, of the Iowa Constitution, as having the same scope and purpose as the Fourth Amendment. State v. Showalter, 427 N.W.2d 166, 168 (Iowa 1988).
In State v. Eames, 565 N.W.2d 323, our supreme court addressed an almost identical factual and procedural scenario. There, the court laid out and reviewed the statutory procedures for the assessment and collection of the drug stamp tax. Id. at 325. We do not repeat those procedures in full here. It is sufficient to restate that the drug tax is due immediately upon possession of a drug by a dealer and there is no requirement that the individual be convicted of a controlled substance offense for the tax to be due. Id. There are no time constraints as "[t]he period for examination, determination of amount of tax owed, and assessment is unlimited." Iowa Code § 453B.9. Upon the assessment, the tax is statutorily deemed to be a "jeopardy assessment," and the director of the Department of Revenue is directed to immediately proceed to collect the tax by any manner prescribed in section 422.30. Eames, 565 N.W.2d. at 326. Section 422.30 authorizes a distress warrant to be issued immediately, directing the sheriff to seize any property to satisfy the delinquency pursuant to Iowa Code section 422.26.
In Eames, the court rejected a due process challenge to section 453B.9, holding that the summary procedures were adequate, and that predeprivation notice and hearing are not constitutionally required.
A distress warrant directs the county sheriff to "distrain, seize, garnish, or levy upon, and sell . . . any real or personal property belonging to the taxpayer to satisfy the amount of the delinquency plus costs. Iowa Code § 422.26. It does not appear that anything in the statute constrains the length of time in which a distress warrant must be executed.
We believe the primary factor militating in favor of upholding this warrant is its characterization as an administrative warrant, designed specifically and solely for the collection of a tax debt. This is significant because administrative warrants are held to a lesser standard of probable cause than criminal search warrants. Camara v. Municipal Court, 387 U.S. 523, 537-38, 87 S. Ct. 1727, 1735, 18 L. Ed. 2d 930, 940 (1967); State v. Green, 540 N.W.2d 649, 654 (Iowa 1995). This is primarily because the purpose of such warrants is not to discover evidence of crime. Green, 540 N.W.2d at 654. Thus a finding of probable cause turns on the reasonableness of the inspection, not on proof that a violation would be found in a particular location. Camara, 387 U.S. at 534-35, 87 S. Ct. at 1734, 18 L. Ed. 2d at 939; compare State v. Davis, 679 N.W.2d 651, 655 (Iowa 2004) (noting that, in the criminal warrant context, the existence of probable cause to search a particular area depends on whether a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched). For an administrative warrant to issue the test merely involves "balancing the need to search against the invasion which the search entails." Camara. 387 U.S. at 537, 87 S. Ct. at 1735, 18 L. Ed. 2d at 940.
Thus, we first reject Carter's contention that section 453B.9 is unconstitutional because it does not require a finding of probable cause of criminality prior to entering his house. As an administrative warrant, a finding that a crime has been committed is not required. See id. at 534-35, 87 S. Ct. at 1734, 18 L. Ed. 2d at 939. Although, Carter had no advance notice of the execution of the administrative warrant, our supreme court has held that notice is complete upon mailing and a postdeprivation hearing is available and sufficient to satisfy the due process clause. Eames, 565 N.W.2d at 327.
We reject Carter's contention that the "lack of legislative standards" makes this search unreasonable. As the district court noted, this statute only applies to "dealers," and not persons who only possess a small amount of drugs for personal use. The information given to the Department's director that Carter possessed four marijuana plants satisfied the director's determination of his status as a dealer. We also do not consider it to be unreasonable or an overgeneralization to conclude that a drug dealer may choose to secrete any items of value that may be seized to satisfy the tax due, prior to the execution of the distress warrant.
In addition, when we balance the State's need to collect a tax due on the possession of illicit drugs against the invasiveness of the search, we conclude the State's interests prevail. See United States v. Bisceglia, 420 U.S. 141, 145, 95 S. Ct. 915, 918, 43 L. Ed. 2d 88, 93 (1975) (recognizing that compulsion on the part of the State occasionally is required in the enforcement of the revenue laws). As noted, legislative enactments in general, and more particularly taxing statutes, have a strong presumption of constitutionality. Schroeder Oil Co. v. Iowa State Dep't of Revenue Fin., 458 N.W.2d 602, 603 (Iowa 1990); see also Eames, 565 N.W.2d at 328 (collection of tax revenues is an important governmental interest); Clift v. Indiana Dep't of State Revenue Fin., 660 N.E.2d 310, 318 (Ind. 1995) (agreeing with legislature's classification of drug tax collection as an area "in which the magnitude of the government's need to take action without administrative delay justifies the temporary deprivation of property which may occur").
We also note that certain industries have such a history of government oversight that no reasonable expectation of privacy exists. See Katz v. United States, 389 U.S. 347, 351-352, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967). It cannot be disputed that, while not an "industry" per se, drugs are a pervasively regulated item, and it is at least arguable that an individual who chooses to possess and deal in them has "voluntarily chosen to subject himself to a full arsenal of governmental regulation." See Marshall v. Barlow's Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 1821, 56 L. Ed. 2d 305, 316 (1987).
Conclusion.
We conclude section 453B.9 does not violate the constitutional prohibition against unreasonable searches and seizures. We therefore affirm Carter's conviction for possession of marijuana.
AFFIRMED.
Mahan, J. concurs; Sackett, C.J., dissents.
I dissent. In State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997), the majority did not address a Fourth Amendment challenge to entry of a residence via an administrative search warrant, finding error was not preserved. The minority, believing error on the issue was preserved, addressed the issue and said, "the blanket issuance of an administrative search warrant authorizing entry of a personal residence without an articulation of facts rendering the entry reasonable for Fourth Amendment purposes cannot be sustained." Eames, 565 N.W.2d at 329. I find the dissent persuasive. I would reverse and dismiss.