STATE OF IOWA, Plaintiff-Appellee, vs. DENNIS KEITH PETERSEN, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-525 / 05-0757
Filed September 7, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENNIS KEITH PETERSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Audubon County, Jeffrey L. Larson
(suppression hearing), and James M. Richardson (trial), Judges.
Defendant appeals following conviction and sentence for possession of
methamphetamine with intent to deliver while in possession of a firearm, and
conspiracy to possess methamphetamine with the intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, and Francine O'Brien Andersen, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
2
ZIMMER, J.
Dennis
Petersen
appeals
following
conviction
and
sentence
for
possession of methamphetamine with intent to deliver while in possession of a
firearm, in violation of Iowa Code sections 124.401(1)(b)(7) and 124.401(1)(e)(3)
(2003), and conspiracy to possess methamphetamine with the intent to deliver, in
violation of sections 124.401(1)(b)(7) and 706.1. 1
We affirm Petersen’s
convictions and preserve his ineffective assistance of counsel claims for a
possible postconviction proceeding.
I. Background Facts and Proceedings.
Dennis Petersen was involved in a dispute with his brothers Kenny and
Scott. The brothers arranged to meet on October 2, 2004, at the Chadwick Truck
Stop (CTS), located in Audubon, Iowa, to settle the matter. Several members of
the Petersen family were present, and a fight that began between Petersen and
Kenny eventually involved not only Scott but the brothers’ parents. During the
altercation Petersen drew a .22 caliber six shot revolver from his back pocket.
Chief Deputy Sherriff Jacob Matthews arrived at the scene after dispatch
received a 911 call stating that a fight was in progress at CTS and that a gun was
involved.
Deputy Matthews secured the revolver and searched Petersen for
weapons. He found pepper spray in Petersen’s back pocket.
1
The jury in fact found Petersen guilty of one count of “Manufacture, and/or Possess
with Intent to Manufacture and/or Deliver, Methamphetamine” while possessing a
firearm, and one count of “Conspiracy to Manufacture, and/or Possess with Intent to
Manufacture and/or Deliver, Methamphetamine.” However, in his motion for a new trial
and for judgment of acquittal Petersen characterized his convictions as possession with
intent to deliver and conspiracy with intent to deliver, and has modeled his arguments
accordingly. We therefore limit our analysis to these alternatives, which are the
alternatives most consistent with the evidence in this case.
3
Deputy Matthews also conducted a visual inspection of the cab of
Petersen’s semi tractor, 2 which was parked in the middle of the CTS parking
area with the driver’s side door open.
Deputy Matthews observed a holster
laying on the driver’s side seat and a box of ammunition between the seats. He
asked Petersen who the gun belonged to, and Petersen admitted the gun was
his. Deputy Matthews confirmed that Petersen did not have a permit to carry a
concealed weapon or to purchase a firearm.
Deputy Matthews transported Petersen to the sheriff’s department and
applied for a warrant to search his home, pickup truck, and semi. A warrant was
issued allowing officers to search those areas for “firearms and accessories,
ammunitions, pepper spray, or other weapons or items used for weapons,” and a
number of other specifically identified items related to the possession,
transportation, ordering, purchase, or distribution of firearms. Officers executed
the search warrant at all three locations but, due to a manpower shortage, were
unable to do so until several hours after Petersen’s arrest.
Officers allowed one of Petersen’s relatives to move the semi off to the
side of the parking area. When officers departed CTS, the semi was locked.
However unbeknownst to law enforcement, Gina Stork, an acquaintance of
Petersen, was in the sleeper portion of the semi.
Stork had accompanied
Petersen on a two-week trip, and the pair had returned to Audubon immediately
before the confrontation at CTS. Stork remained in the semi until sometime after
2
The semi tractor was owned by Larry Boyens, but was driven by Petersen, and had
the name “Petersen” painted on the door to the cab.
4
officers initially left the scene, but before they returned to execute the search
warrant. According to Stork, when she left the semi she did not lock it.
During the search of the semi tractor later that night, police discovered
approximately forty grams of “ice” methamphetamine, a pure form of
methamphetamine that is not typically manufactured in the area and has a street
value of $100 to $200 per gram. Police also discovered drug paraphernalia,
including eleven glass pipes, a small shovel that can be used to divide up
quantities of drugs, and plastic bags. One of the glass pipes was found in a red
sports bag, along with a number of items that were later identified as belonging to
Stork.
The methamphetamine, shovel, and all the remaining pipes were
discovered inside a blue sports bag. The pipes were wrapped in paper towels,
and the methamphetamine was inside two plastic bags that had been placed
inside a mismatched pair of socks. The blue bag also contained men’s and
women’s clothing. Stork admitting using both bags to carry her belongings to
and from the shower during her trip with Petersen.
Additional drug-related
paraphernalia, including plastic bags, baby powder, and paper towels similar to
that wrapped around the glass pipes, was seized from Petersen’s home.
Petersen was charged with the possession and conspiracy counts noted
above, as well as weapons and assault charges. 3 He moved to suppress the
evidence seized from his home and the semi, asserting the warrant was not
supported by probable cause and, alternatively, that even if the warrant was itself
valid, the seizure of items related to the drug charges was not authorized by the
3
Petersen was also charged with going armed with intent in violation of sections 708.1
and 708.8, assault causing serious injury in violation of sections 708.1 and 708.2, and
carrying weapons in violation of section 724.4.
5
warrant or any exception to the warrant requirement.
The court denied the
motion, finding the warrant was supported by probable cause and that all the
evidence was either seized pursuant to the search warrant or was in plain view.
Following trial, a jury found Petersen guilty on all counts, and he was
sentenced accordingly. Petersen appeals from his convictions for possession
with intent and conspiracy. He contends (1) the district court erred in denying his
motion to suppress, (2) the court erred in denying his motion for judgment of
acquittal because his convictions for possession of methamphetamine with intent
to deliver and conspiracy to possess methamphetamine with the intent to deliver
were not supported by substantial evidence, and (3) his trial counsel was
ineffective for failing to object to certain testimony.
II. Motion to Suppress Evidence.
We conduct a de novo review of the court’s denial of Petersen’s motion to
suppress. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). However, to the
extent Petersen challenges the existence of probable cause to support the
search warrant, we do not make an independent determination of probable
cause. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). Rather, we decide
only whether the issuing judge had a substantial basis for concluding probable
cause existed. Id. “Close cases must be resolved in favor of upholding warrants,
as public policy is promoted by encouraging officers to seek them.” Id. Upon
such review, we conclude the court did not err in denying the motion to suppress.
Petersen first asserts the warrant did not satisfy the Fourth Amendment’s
requirement of “particularly describing the . . . things to be seized,” and that
“[b]ecause of the overly broad, non-specific nature of the [warrant] application,
6
the affiant was unable to demonstrate a nexus between the things to be seized
and the commission of the crime.” We reject both contentions.
Probable cause to issue a search warrant exists when “a reasonable
person would believe a crime was committed on the premises or that evidence of
a crime could be located there.” State v. Simpson, 528 N.W.2d 627, 634 (Iowa
1995).
The issuing judge must make “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, . . . there
is a fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76
L. Ed. 2d 527, 548 (1983).
The warrant application must demonstrate an
adequate nexus between the criminal activity, the place to be searched, and the
items to be seized.
See State v. Gogg, 561 N.W.2d 360, 365 (Iowa 1997)
(considering “‘the type of crime, the nature of the items involved, the extent of the
defendant’s opportunity for concealment, and the normal inferences as to where
the defendant would be likely to conceal the items’” (citation omitted)).
In addition, a search warrant must be reasonably specific. State v. Todd,
468 N.W.2d 462, 467 (Iowa 1991). A warrant will not be upheld if the description
of items to be seized is “‘so broad and vague it necessarily clothed the warrantexecuting officers with interdicted discretion regarding items to be seized.’” Munz
v. State, 382 N.W.2d 693, 699 (Iowa Ct. App. 1985). However, a description is
“sufficiently particular” if it allows law enforcement
reasonably to ascertain and identify the things to be seized. When
a warrant affiant has probable cause but cannot give an exact
description of the materials to be seized, a warrant will generally be
upheld if the description is as specific as the circumstances and the
nature of the activity under investigation permit.
7
Todd, 468 N.W.2d at 467.
The warrant application in this case set forth Deputy Matthews’s personal
knowledge of the events of that day, including Petersen’s illegal possession of
weapons and Petersen’s admission the firearm had been in his semi. It also
contained information provided by Petersen’s wife regarding the presence of
firearms in their jointly owned residence. Finally, the application set forth Deputy
Matthews’s knowledge, based on his training and experience as a police officer,
regarding the type of items relating to the possession, purchase, and transfer of
weapons often found in the residence and other locations occupied by a
“weapons enthusiast,” including paper and electronic records and information,
and secured asset locations such as safe deposit boxes and safes.
When this information is viewed in a common-sense manner, including all
reasonable inferences that support a finding of probable cause, Gogg, 561
N.W.2d at 364, it provides an adequate nexus between the alleged criminal
activity of illegal weapons possession, Petersen’s residence and vehicles, and
the description of items to be seized. Moreover, the descriptions of items were
as specific as circumstances permitted, and allowed officers to reasonably
ascertain and identify the things to be seized.
Probable cause to issue this particular warrant is not lacking, as Petersen
suggests, merely because many of the items described in the warrant, including
“records, credit card statements, or receipts,” items related to secured asset
locations, and various forms of paper and electronic information, are commonly
found in personal residences. The common and unremarkable nature of the
8
items to be seized can defeat probable cause under certain circumstances, such
as when a warrant application attempts to establish a causal nexus through
information a defendant’s home contains property similar to that involved in a
crime. See Gogg, 561 N.W.2d at 365. In such cases, where the items are of the
kind commonly found in personal residences, and there is no evidence the items
in the defendant’s possession are unusual or unique, there is no reason to
believe those items are the same as those involved in the particular crime. Id. at
366. Thus, the nexus between the criminal activity, the place to be searched,
and items to be seized is lacking. Here, in contrast, evidence of Petersen’s
illegal possession of weapons, combined with the deputy’s knowledge that the
items sought could provide evidence regarding Petersen’s possession, purchase,
or transfer of illegal weapons, provides an adequate causal nexus.
Petersen also asserts officers exceeded the scope of the warrant when
they seized the glass pipes and methamphetamine from the blue sports bag
located in the sleeper section of the semi. He contends officers were not justified
in believing they would discover weapons or related accessories inside of the
socks or within the paper-wrapped glassware. We conclude this contention is
also without merit.
The reasonableness of the officer’s actions “‘must be judged from the
perspective of a reasonable officer on the scene . . . .’” Bailey v. Lancaster, 470
N.W.2d 351, 359 (Iowa 1991) (quoting Graham v. Connor, 490 U.S. 386, 396,
109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443, 455 (1989)). Petersen himself notes
the nature of the items within the paper and socks was not readily apparent,
beyond the fact the paper was wrapped around some kind of glass, and the
9
socks were “heavy” and appeared to contain plastic bags.
Significantly, the
warrant encompassed items of various sizes, and any number of these—
including ammunition, keys, film, cell phones, audio tapes, and electronic and
digital media—could have been contained within the paper or socks. Under the
circumstances, it was not unreasonable for the officers to believe the paper and
socks could contain an item covered by the warrant. See Munz, 382 N.W.2d at
699 (concluding scope of warrant not exceeded where areas searched were
“legitimate locations . . . given the size of the objects to be seized”). When the
search revealed the paper and socks contained incriminating and illegal items,
the officers were authorized to seize those items even though they were not
covered by the warrant. See State v. Swaim, 412 N.W.2d 568, 575 (Iowa 1987).
The court did not err in denying Petersen’s motion to suppress.
III. Substantial Evidence.
Petersen also asserts that his possession with intent and conspiracy
convictions are not supported by substantial evidence. We review these claims
for the correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa
1997). We uphold the jury’s verdict if the record reveals evidence that would
allow a rational trier of fact to find the defendant guilty beyond a reasonable
doubt. Id. In making this determination, “[w]e view the evidence in the light most
favorable to the verdict,” including all reasonable inferences. State v. Gay, 526
N.W.2d 294, 295 (Iowa 1995).
Weighing the evidence and assessing the
credibility of witnesses are matters left to the jury, and not this court on appeal.
See State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001); State v. Button, 622
N.W.2d 480, 483 (Iowa 2001).
10
A. Possession with Intent to Deliver.
In order to prove Petersen possessed the methamphetamine with the
intent to deliver the State had to prove three elements: (1) Petersen knowingly
possessed
methamphetamine,
(2)
he
knew
the
substance
was
methamphetamine, and (3) he possessed the methamphetamine with the
specific intent to deliver it. See Iowa Code § 124.401(1)( b)(7); State v. Scalise,
660 N.W.2d 58, 63 (Iowa 2003). Petersen contends the State failed to prove the
first element, his knowing possession of the methamphetamine.
To prove unlawful possession of a controlled substance, the State must
prove the defendant “‘(1) exercised dominion and control [i.e., possession] over
the contraband, (2) had knowledge of its presence, and (3) had knowledge that
the material was a controlled substance.’” State v. Bash, 670 N.W.2d 135, 137
(Iowa 2003) (citation omitted). Because the methamphetamine was not found on
Petersen’s person, the State was required to prove his constructive possession
of the drugs. State v. Carter, 696 N.W.2d 31, 38-39 (Iowa 2005). Because the
methamphetamine was found in an area accessible to both Petersen and Stork,
Petersen’s “‘knowledge of the presence of the substances on the premises and
[his] . . . ability to maintain control over them . . . will not be inferred but must be
established by proof.’” Id. at 39 (citation and emphasis omitted). Constructive
possession will be found when “‘all of the facts and circumstances . . . allow a
reasonable inference that the defendant knew of the [controlled substance’s]
presence and had control and dominion over [it].’” Id. at 39-40.
Here, the methamphetamine was found in Petersen’s vehicle, in a bag
containing Petersen’s clothing. See id. at 39 (noting relevance of these factors).
11
In addition, Stork denied knowledge of the drugs, or that she owned the socks
within which the drugs were secreted. See id. at 40 (same). We are mindful of
that other factors support Stork’s constructive possession of the drugs, including
her use of the bag in which they were found. However, there is no requirement
that constructive possession of a controlled substance be exclusive to the
defendant. When we view the evidence in the light most favorable to State, we
conclude it is sufficient to permit a reasonable inference Petersen knew of the
drugs’ presence and had control and dominion over them. We accordingly affirm
his conviction for possession of methamphetamine with intent to deliver. 4
B. Conspiracy.
In order to find that Petersen conspired to possess methamphetamine with
the intent to deliver, the State was required to demonstrate four elements. See
State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001); see also Iowa Code
§ 706.1(1)-(4). Only the first of these—that Petersen agreed with one or more
persons, in this case Stork, that one or both of them would deliver
methamphetamine—is at issue on appeal. 5
Petersen contends there is
4
Petersen also asserts there was insufficient evidence to support possession because
it is possible someone, such as one of his family members, planted the
methamphetamine in the semi while it was sitting unlocked at CTS. As the State points
out, there is no affirmative evidence the drugs were planted, and the nature and location
of the evidence seized by law enforcement supports the conclusion that the
methamphetamine belonged to someone in the semi. Moreover, the mere fact that
someone had the opportunity to plant the methamphetamine does not require reversal of
Petersen’s conviction. The question on appeal is not whether the jury could have
reached a different conclusion, but whether the evidence, when viewed in the light most
favorable to the State, supports the conclusion the jury actually reached. State v.
Turner, 630 N.W.2d 601, 610 (Iowa 2001).
5
The State was further required to prove that Petersen entered into the agreement with
the intent to deliver methamphetamine, that he and/or Stork committed an overt act in
12
insufficient evidence to support the existence of any agreement between himself
and Stork. We cannot agree.
The agreement “need not be formal or express, but may be a tacit
understanding; the agreement may be inherent in and inferred from the
circumstances, especially declarations, acts, and conduct of the alleged
conspirators.” State v. Casady, 597 N.W.2d 801, 805 (Iowa 1999). Because a
conspiracy is by nature clandestine, it will often rest upon circumstantial evidence
and inferences drawn from that evidence. Id. at 804-05. We must indulge in
“[a]ll legitimate inferences arising reasonably and fairly from the evidence” to
support a verdict of conspiracy. Id. at 804-05 (citation omitted). However, the
evidence must show more than Stork’s mere presence at the scene or
association with Petersen, because “without proof of any involvement from which
to infer agreement, this essential element of the offense rests on nothing but
conjecture and speculation.” See Speicher, 625 N.W.2d at 742-43.
When we review the evidence in light of all legitimate inferences, we
conclude it is sufficient to establish more than Stork’s mere association with
Petersen or her simple proximity to the contraband. Given the location of the
various drug-related items, Stork’s extended presence in the semi up to and
including Petersen’s arrest, the presence of Stork’s possessions in the red beg,
the presence of women’s clothing in the blue bag, and Stork’s admission that she
had used both the bags, it is reasonable to infer Stork was not only aware of the
drugs and drug paraphernalia located in the semi, but that she exercised at least
furtherance of the delivery of methamphetamine, and that Stork was not a law
enforcement agent or working with law enforcement when the conspiracy began. Id.
13
joint possession over some or all of the items. In light of the remaining record,
including the fact that the amount of the methamphetamine and the number of
glass pipes was inconsistent with personal use, a jury could reasonably infer a
tacit agreement between Stork and Petersen to possess the methamphetamine
with an intent to deliver. We accordingly affirm Petersen’s conspiracy conviction.
IV. Ineffective Assistance of Counsel.
Finally, Petersen asserts his trial counsel was ineffective for eliciting or
failing to object to (1) officer testimony that it is not unusual for
methamphetamine users to have a high level of sexual activity and that sexual
content was found on two cell phones as well as on a laptop computer that
belonged to Stork; (2) testimony from Petersen’s wife that Petersen “knew what
methamphetamine was” because eight years ago she found a “powdery
substance” on the visor mirror in Petersen’s pickup truck and in 2003 had found a
burnt piece of foil with Petersen’s paperwork; (3) officer testimony that police had
seized a radar detector and scanner from the semi tractor, that it was illegal for
truck drivers to possess these items, and that the scanner was tuned to a police
frequency and was therefore being used illegally; and (4) Stork’s invocation of
her Fifth Amendment rights in front of the jury.
To establish ineffective assistance of counsel, Petersen must prove both
that
his
attorney’s
performance
fell
below
“an
objective
standard
of
reasonableness,” and “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L.
Ed.2d 674, 693 (1984). Typically, ineffective assistance of counsel claims are
preserved for a possible postconviction proceeding, to allow a full development of
14
the record regarding counsel’s actions. State v. DeCamp, 622 N.W.2d 290, 296
(Iowa 2001). We address such a claim on direct appeal only where the record
establishes that either (1) as a matter of law the defendant cannot prevail on the
claim asserted or (2) both prongs of the Strickland test are satisfied, and a further
evidentiary hearing would not change the result. State v. Graves, 668 N.W.2d
860, 869 (Iowa 2003).
We find the record insufficient to resolve Petersen’s ineffective assistance
of counsel claims.
We accordingly preserve those claims for a possible
postconviction proceeding.
V. Conclusion.
We have considered all of Petersen’s contentions, whether or not
specifically discussed.
We affirm Petersen’s convictions and preserve his
ineffective assistance of counsel claims for a possible postconviction proceeding.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.