Opinion
No. 160 / 02-1329
February 25, 2004.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Audubon County, Gordon C. Abel, Judge.
The State seeks discretionary review of a ruling suppressing evidence obtained by execution of a search warrant. The court of appeals reversed the suppression order. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Thomas J. Miller, Attorney General, Karen S. Doland, Assistant Attorney General, and Francine O'Brien Andersen, County Attorney, for appellant.
Robert Kohorst of Kohorst, Early Louis, Harlan, for appellee.
The State was granted discretionary review to consider a ruling of the district court suppressing evidence in the prosecution of defendant, Kent Clarence Henriksen, for possession of controlled substances. The evidence ordered suppressed was obtained pursuant to a search warrant. The district court found that probable cause did not exist for the issuance of the warrant. The court of appeals reversed on the ground that Henriksen's motion to suppress evidence was untimely. Upon reviewing the record and considering the arguments presented, we conclude that the district court could have found a reasonable excuse for the late filing of the motion to suppress.
On the merits of the State's appeal, the justices are evenly divided with respect to whether there was probable cause for the issuance of the search warrant. We have recognized that, when a decision of the court of appeals has been vacated and the case is decided on an issue not considered by that court, a tie vote results in the affirmance of the district court pursuant to Iowa Code section 602.4107 (2001). Winckel v. Von Maur, Inc., 652 N.W.2d 453, 461 (Iowa 2002). Consequently, the judgment of the district court is affirmed by operation of law pursuant to that statute.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
For affirmance, Lavorato, C.J., and Ternus and Wiggins, JJ.; for reversal, Carter, Cady, and Streit, JJ. Larson, J., takes no part.