Opinion
No. 4-508 / 03-1615.
July 28, 2004.
Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr. and J. Hobart Darbyshire, Judges.
Keven Noel Kern appeals his conviction, following jury trial, for possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Kevin Kern, Newton, appellant pro se.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Keven Noel Kern appeals his conviction, following jury trial, for possession of marijuana. He contends the district court erred in denying his motion to suppress the drug evidence gathered during the execution of a search warrant. We affirm.
Also referred to as "Kevin" at places in the record.
I. BACKGROUND FACTS AND PROCEEDINGS.
Kern first came to the attention of law enforcement because of a citizen's complaint that he was selling cocaine and marijuana from his residence at 1436 West 4th Street in Davenport, Iowa. Following the complaint Davenport police officers began conducting surveillance of Kern's residence. During the surveillance, officers observed several individuals arriving at the residence and leaving after staying only five to ten minutes. Detective Michael Greenleaf of the Davenport Police Department testified at the suppression hearing that this sort of behavior is consistent with the purchase of illegal narcotics.
On November 16, 2002 an officer stopped one of these short-term visitors for a minor traffic violation as he left Kern's residence. The driver consented to a search of his vehicle and the officer found a baggie of marijuana. Officer Greenleaf interviewed the driver and he told Greenleaf he had purchased the marijuana from Kern. The driver also said that he had observed around two to three ounces of cocaine and four to five ounces of marijuana in Kern's house.
Based on this information, officers were able to obtain a search warrant for Kern's residence. However, they were unable to execute the warrant because they were called to a possible hostage situation and the warrant was allowed to expire. Although they were unable to execute the warrant, the officers continued surveillance of Kern's home and continued to see individuals coming to the home and only staying for short periods of time.
On January 28, 2003, Detective Errol Walker took from the grassy area between the sidewalk and the street directly in front of Kern's residence four bags of garbage that had been put out for collection. Detective Walker testified that he saw other bags of garbage out for collection in that same neighborhood. Walker transported the garbage to the police station and Detective Greenleaf searched the bags the next day. Greenleaf found partial baggies that contained marijuana residue and information linking the bags with Kern's brother, with whom Kern resided at the address in question.
Greenleaf applied for a search warrant for Kern's residence. In the warrant application Greenleaf included information about what he found in the trash search, Kern's criminal history which included prior charges for possession of a controlled substance with intent to deliver and possession of marijuana, the prior citizen complaint, the prior traffic stop and information they had received from the stop, and that the utilities of the residence in question were in Kern's brother's name. A search warrant was issued and executed on Kern's residence.
The search of the residence revealed approximately 0.4 grams of marijuana, cigarette rolling papers, baggies, two digital scales, one manual scale, and several pieces of electronic equipment. Detective Greenleaf also recovered approximately 57.1 grams of marijuana from Kern's pocket.
On February 20, 2003 Kern was charged, by trial information, with possession with intent to deliver marijuana, in violation of Iowa Code sections 124.401(1)(d) and 124.401(4)(m) (2003) (Count I), failure to affix a drug tax stamp, in violation of sections 453B.1(3)(b), 453B.3, and 453B.7(1) (Count II), sponsoring a gathering where controlled substances are unlawfully used, in violation of section 124.407 (Count III), interference with official acts, in violation of section 719.1 (Count IV), and harassment of public officials, in violation of section 718.4 (Count V).
Kern filed a motion to suppress the evidence found during the execution of the search warrant. The motion argued that the warrantless search of his trash was unjustified and unconstitutional. A hearing was held on the motion and the court concluded that the officers needed no search warrant or probable cause to seize and search Kern's trash because there is no expectation of privacy in discarded garbage left out for collection and thus the trash search was not unconstitutional. The court ultimately concluded that the warrant was supported by probable cause and denied Kern's motion to suppress.
A jury trial was held. The district court granted Kern's motion for judgment of acquittal on the harassment charge. The jury found Kern guilty of two counts of possession of marijuana (lesser included offenses of Counts I and II) and interference with official acts. The court merged Counts I and II and imposed sentence on them. The court sentenced Kern to thirty days confinement in the county jail on the interference charge and one year and a fine on the possession charge. The sentence on the possession charge was based on his prior conviction for possession of marijuana with intent to deliver. See Iowa Code § 903.1(1)(b). The sentences were ordered to run concurrently.
II. SCOPE AND STANDARD OF REVIEW.
A challenge to the district court's ruling on a motion to suppress implicates the Fourth and Fourteenth Amendments to the United States Constitution. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). We consistently interpret the scope and purpose of article I, section 8, of the Iowa Constitution to be the same as federal interpretations of the Fourth Amendment. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). In assessing alleged violations of constitutional rights, our standard of review is de novo. Id. In doing so we independently evaluate the totality of the circumstances shown by the record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give deference to the district court's findings of fact because of its opportunity to assess the credibility of witnesses, but we are not bound by those findings. Id. Error was preserved here by the district court's adverse ruling on Kern's motion to suppress. Breuer, 577 N.W.2d at 44.
III. MERITS.
The only issue raised by Kern on appeal is that the trial court erred in denying his motion to suppress because the search of his garbage bags was unconstitutional. He asserts that we should overrule the prior Iowa case law that has held garbage searches are constitutional under the provisions of our state constitution.
Kern filed a pro se brief in addition to the brief filed on his behalf by counsel. Although he sets forth additional background facts in his brief, the brief only raises one argument on appeal, and that is the same argument made by his appellate counsel requesting our reconsideration of the constitutionality of garbage searches under the Iowa Constitution.
We have previously addressed the constitutionality of garbage searches under the Iowa Constitution, first in State v. Henderson, 435 N.W.2d 394 (Iowa Ct.App. 1988) and later in State v. Skola, 634 N.W.2d 687 (Iowa Ct. App. 2001). In both cases this court determined there is no reasonable expectation of privacy in garbage placed out for collection and thus the warrantless garbage searches which occurred in those cases were upheld. See Skola, 634 N.W.2d at 691 ("Based on our precedent and the prevailing opinion of the majority of states, we uphold the validity of warrantless garbage searches under article I, section 8 of the Iowa Constitution."); Henderson, 435 N.W.2d at 397 ("We determine the use of evidence obtained by searching the defendant's garbage did not intrude upon his legitimate expectation of privacy and therefore, was properly considered by the magistrate in issuing a search warrant of the defendant's premises.").
We decline Kern's invitation to overrule our prior case law and refuse to depart from the explicit holdings in Henderson and Skola that there is no reasonable expectation of privacy in garbage put out for collection and thus warrantless garbage searches do not violate our state constitution. Accordingly, we find the district court did not err in denying Kern's motion to suppress. Kern's convictions are affirmed.
AFFIRMED.