Opinion
No. 2-888 / 01-1864.
Filed February 28, 2003.
Appeal from the Iowa District Court for Scott County, Charles H. Pelton and Bobbi M. Alpers, Judges.
George Thomas Copeland, Jr. appeals his convictions on three counts of possession of controlled substances with the intent to deliver and two drug tax stamp violations. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
George Thomas Copeland, Jr. appeals his convictions on three counts of possession of controlled substances with the intent to deliver and two drug tax stamp violations. He contends the trial court erred in overruling his motion to suppress the drug evidence. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
On April 23, 2001, Davenport police officers were seeking Anthony Rankin in connection with the theft of musical equipment from a local music store. In investigating a vehicle associated with Rankin, the police found the vehicle was registered to the defendant Copeland's sister and to an apartment in which Copeland was a tenant. Davenport Police Officers Houser, Hickenbottom, and Sass went to investigate the apartment listed on the registration of the suspect vehicle. Dispatch advised the officers to use caution because there was an outstanding warrant for Rankin on a previous weapons charge.
As the officers entered the hallway of the apartment building they noticed the smell of burning marijuana and the odor became stronger as they neared the apartment in question. The officers knocked on the door and before answering Copeland looked through the door's peephole and alerted the others in the apartment the police were there. He then asked who was at the door and the officers identified themselves as the police. Copeland opened the door and the officers told him they were investigating a theft and needed to talk with him. Copeland then opened the door further and stepped back out of the way, a motion described by Officer Hickenbottom at the suppression hearing as a "gesture as if to allow us entry." The officers testified they then entered the apartment and Copeland closed the door behind them. Copeland denied he invited the officers into the apartment or that he closed the door once they were inside.
Officer Hickenbottom asked Copeland if he had been driving the vehicle in question earlier that day and he acknowledged he had been. Hickenbottom also asked Copeland if there was anyone else in the apartment and he stated there were others in one of the back bedrooms and motioned toward the hallway. Copeland then headed toward the back room, presumably to get the others to come out, and Officer Sass accompanied him. Four other male individuals filed out of the back bedroom and into the living room. Once they were all in the living room Officer Sass advised the other officers she had seen a bong, a pipe used for smoking marijuana, in the bedroom where the men had been. Officer Sass did not seize the bong.
One of the men who came out of the room admitted he was Rankin and the officers arrested him on the weapons violation warrant. Rankin was patted down and a baggie of marijuana was found in the pocket of his jeans. Based on the smell of burning marijuana and the bong seen in the bedroom the officers believed a crime was being committed, at the least that Copeland was in possession of drug paraphernalia in violation of Iowa Code section 124.414 (2001). The officers were aware of the weapons charge against Rankin, they were outnumbered by substantially larger males, and backup assistance was not available for some time. Accordingly, the officers proceeded to pat down all of the individuals in the apartment for the officers' safety.
During Officer Houser's pat down of Copeland, Copeland reached into his pocket. Officer Houser pulled Copeland's hand out of his pocket and a wad of cash and a baggie of marijuana dropped onto the floor as his hand was pulled out. At that point Copeland was handcuffed and asked if there were any other drugs or weapons in the house. Copeland stated he had more marijuana in his sock and there were more drugs and a gun on top of a cabinet in the kitchen. However, he refused to consent to a search of the apartment. A search warrant was subsequently requested and obtained. The apartment was searched and other drugs, including additional amounts of marijuana, crack cocaine, and powder cocaine, were discovered.
Copeland was arrested and charged by trial information on June 5, 2001 with possession of crack cocaine with intent to deliver (Count I), possession of marijuana with intent to deliver (Count II), possession of powder cocaine with intent to deliver (Count III), two drug tax stamp violations (Counts IV and V), and possession of a firearm as a felon (Count VI). He filed a motion to suppress the drug evidence on July 9, 2001 alleging that the officers' search and seizure was unreasonable and in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Iowa Constitution. An evidentiary hearing was held on the motion and the district court denied the motion in a written order filed September 7, 2001.
Copeland waived jury trial and filed a motion to dismiss which the court denied. The court found Copeland guilty on all charges on October 29, 2001. Copeland filed a motion for new trial reasserting all arguments put forward in the motion to suppress and the motion to dismiss, as well as challenging the court's finding of guilt on the charge of felon in possession of a firearm as being unsupported by the evidence. The court granted the motion as to the firearm charge and changed its prior ruling to find Copeland not guilty on that count. The motion for new trial was denied on all other grounds. Copeland was sentenced to terms of incarceration of twenty-five, five, ten, five and five years on Counts I-V respectively, with all sentences to be served concurrently.
II. SCOPE AND STANDARD OF REVIEW.
Copeland challenges the district court's denial of his motion to suppress. This challenge is based on his constitutional right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United Stated Constitution and Article I, Section 8 of the Iowa Constitution. We review this constitutional question de novo in light of the totality of the circumstances. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). "We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings." State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). The court's adverse ruling on Copeland's motion to suppress preserved error for our review. See State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
The rights guaranteed in the Fourth Amendment apply to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081, 1090 (1961).
III. MERITS
The Fourth Amendment to 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.
U.S. Const. amend. IV. Evidence obtained in violation of this provision is inadmissible in a prosecution, no matter how relevant or probative the evidence may be. State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995).
Searches and seizures are unconstitutional if they are unreasonable and reasonableness depends on the facts of the particular case. Naujoks, 637 N.W.2d at 107. Warrantless searches are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Roth, 305 N.W.2d 501, 504 (Iowa 1981). Valid exceptions to the warrant requirement include those for searches (1) consented to, (2) based on probable cause and exigent circumstances, (3) involving items in plain view, or (4) incident to a lawful arrest. 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 the exceptions to the warrant requirement. Id. at 107-08.
In his brief Copeland states, "We may assume for this argument that the police were invited into the front room of the apartment to interview Copeland concerning his use of his sister's car." Thus, presuming the officers were given consent by Copeland to enter the apartment, the crux of the issue on appeal is whether there was also valid consent for Officer Sass's accompaniment of Copeland down the hallway to the back room where the other individuals and the bong were located. It is the State's burden to prove, by a preponderance of the evidence, that consent was voluntarily given. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993); State v. Garcia, 461 N.W.2d 460, 462 (Iowa 1990).
We note that had Copeland challenged the initial entry of the officers there is ample authority to find his implied, nonverbal consent to such entry to be valid. The act of opening a door in response to a knock by a police officer and then stepping back, as Copeland did here, has been found to constitute a valid implied consent to enter. See United State v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976) (leaving door open and stepping back was invitation for officer to enter); United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975) (opening door and stepping back constitutes implied invitation to enter.)
Copeland contends that Officer Sass's action in following him down the hallway, without his express consent or permission, exceeded the scope of whatever consent he had given the police to enter his apartment initially. He argues it was not reasonable for the officers to believe his nonverbal consent to enter extended to other areas of the apartment or that they could move about the apartment freely. Therefore, Copeland asserts that Officer Sass's unwarranted and unconsented to entry into the interior of the apartment tainted her observations and thus the items subsequently seized must be suppressed as "fruit of the poisonous tree." We disagree.
Consent does not necessarily have to be given verbally but may be found in gestures and non-verbal conduct as well. State v. Reinier, 628 N.W.2d 460, 467 (Iowa 2001). However, it is equally true that mere acquiescence to a claim of lawful authority is insufficient to show consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 453, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968); see also State v. Hatter, 342 N.W.2d 851, 854 (Iowa 1983) (finding was no actual consent only mere acquiescence based on claim of lawful authority); State v. Ahern, 227 N.W.2d 164, 166 (Iowa 1975) (holding that when officer kicked down door without identifying himself later consent was not voluntarily given).
However, the particular facts surrounding the entry and search in the case before us are significantly distinguishable from the cases where the court has found the consent was a mere acquiescence to a show of authority and thus not constitutionally valid. Here there was no forced entry by the officers nor did they claim lawful authority to follow Copeland down the hallway. Rather, the officers stated they were the police, what they were investigating, and asked if they could talk with Copeland. Copeland implicitly consented to allow them entry into the apartment and he and the officers spoke calmly about his use of the vehicle in question and the whereabouts of Rankin. The officers then asked Copeland if there was anyone else in the apartment, he acknowledged there were others in the apartment in a back bedroom, motioned toward the hallway, and began to walk toward the hallway without saying a word. Officer Sass followed Copeland down the hall toward the bedroom. Copeland did not suggest the officers should wait where they were or object in any way when Sass began to follow him. Although he was not required to protest the entry, failure to do so can be considered in determining whether consent was given. See United States v. Cotnam, 88 F.3d 487, 495 (7th Cir. 1996) (noting, in discussing whether consent was valid, defendant's failure to object to officer's entry into room after alleged implied consent).
Furthermore, although a consenting party may limit or withdraw their consent at any time prior to completion of the search, State v. Myer, 441 N.W.2d 762, 765 (Iowa 1989), any such limitation by the consenter "must clearly inform the appropriate official that the initial consent has been limited, withdrawn or revoked." State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991). Again, the record is clear that Copeland did not expressly state any limitations on his consent and did not protest Sass's accompaniment in any way.
Based on the totality of the circumstances surrounding Copeland's encounter with the officers, we find it was reasonable for the officers to believe Copeland had impliedly consented to Officer Sass accompanying him down the hallway to find the other individuals he had acknowledged were in the apartment. The officers here made no forced entry, made no demands, and made no claim of lawful authority to enter or search. There was implied consent to their entry into the home, a calm discussion of what they were investigating, and an inquiry as to whether there were others in the apartment. Copeland stated he had friends there who were in the back bedroom, motioned and began walking toward the back of the apartment, and did not in any manner indicate the officers should stay where they were or protest when one accompanied him. We believe these circumstances, when taken as a whole, could reasonably be interpreted by Officer Sass as an implicit invitation to accompany him.
The district court found that the officers' testimony was more credible than Copeland's. Although our review is de novo, we give deference to the district court's credibility determinations because it had the opportunity to assess the witnesses firsthand. State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000). Based on our de novo review of the totality of the circumstances, including all of the testimony given at the suppression hearing, we agree with the district court's credibility assessment and find the officers' testimony to be more credible than Copeland's. Accordingly, we find it was reasonable for Officer Sass to believe Copeland had given implied consent for her to accompany him down the hallway to the back bedroom and her actions were consistent with such consent.
IV. CONCLUSION
We conclude the State met its burden to prove a valid exception to the warrant requirement. Copeland impliedly consented to Officer Sass accompanying him down the hallway to where he had indicated the other individuals in the apartment were located. Accordingly, Officer Sass was in a place she had a lawful right to be when she saw the drug paraphernalia and could have legally seized it without a warrant. Neither it, the evidence found during the pat-down search of Copeland, nor evidence seized pursuant to the resulting search warrant, need be suppressed here. The district court's decision to overrule Copeland's motion to suppress is affirmed, as are Copeland's convictions.
A warrantless seizure is justified under the plain view doctrine if the officer has a legal right to be in the place from where he sees the object subject to seizure and a lawful right of access to the object itself, and if the object's incriminating nature is immediately apparent. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112, 122-23 (1990); see also State v. Vincik, 436 N.W.2d 350, 353-54 (Iowa 1989).