STATE OF IOWA, Plaintiff-Appellee, vs. RICHARD PAUL BECKWITH II, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-562 / 05-1812
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICHARD PAUL BECKWITH II,
Defendant-Appellant.
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Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis,
District Associate Judge.
Defendant appeals his conviction for operating while intoxicated, second
offense. AFFIRMED.
Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C., Des
Moines, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney
General, J. Patrick White, County Attorney, and Michael Brennan, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer, J., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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NELSON, S.J.
I.
Background Facts & Proceedings
At about 8:20 a.m. on February 13, 2005, Iowa City police officers
received a report of reckless driving in the area of the Saddlebrook Trailer Court.
The complainants identified a pickup truck parked in front of a mobile home as
being involved in the incident. Officers knocked on the door of the home, and
Richard Beckwith II answered the door. Beckwith admitted the truck was his, but
stated he had not driven it that morning.
Officer Mark Hewlett asked if he could check the vehicle to see if it had
been running, and Beckwith agreed. Officer Hewlett determined the engine was
hot, and concluded the pickup had just been running. In the meantime, the
officers had received consent from Beckwith to enter the home.
Inside the home, officers saw liquor bottles and several people that were
either sleeping or hiding from the police. Beckwith obtained the car keys from his
bedroom. One of the guests stated that Beckwith had been driving and he had
been a passenger that morning. Officer Paul Batcheller informed Beckwith of his
Miranda rights. Beckwith then admitted he had been the driver.
Due to Beckwith’s appearance, conduct, and demeanor, officers believed
he was under the influence of alcohol. He failed field sobriety tests. He was
arrested and taken to the police station. Beckwith consented to a breath test,
which showed an alcohol concentration of .190. Beckwith was charged with
operating while intoxicated (OWI), second offense, in violation of Iowa Code
section 321J.2 (2005).
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Beckwith filed a motion to suppress, claiming he had revoked his consent
for the officers to enter his home. He asserted that his confession that he had
been driving the pickup should be suppressed. Officer Hewlett testified that he
did not remember Beckwith asking the police officers to leave.
On cross-
examination, Officer Hewlett testified:
Q. Is it possible that he would have told you something to the effect
that, “I wish you guys would just leave”? A. He could have. I don’t
know. I don’t remember that.
Officer Batcheller testified no one had asked him to leave once he came into the
residence. Officer Charles Singleman testified he did not hear Beckwith ask the
officers to leave.
Beckwith presented the testimony of his roommate, Jessica Karper, who
testified Beckwith stated, “I wish you would just leave.” Karper’s boyfriend, Scott
Hoffman, who also sometimes stayed at the house, stated he could not hear
what Beckwith and the officers were talking about, but he did hear Beckwith ask
the officers to leave.
Two guests, Patricia Mooney and Timothy Hoffman,
testified Beckwith stated, “I wish you would just leave.”
The district court denied the motion to suppress.
The court found,
“[w]hether Beckwith clearly revoked his consent and at what point in time,
assuming he attempted to do so, is disputed.” The court concluded that even if
Beckwith revoked his consent, exigent circumstances existed which made it
reasonable for the officers to remain in the home without a warrant. The court
determined there were exigent circumstances here because further delay would
result in the destruction of evidence.
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The case was tried to the court based on the minutes of testimony. The
district court found Beckwith guilty of OWI, second offense. He was sentenced to
seven days in the county jail, and ordered to pay a $1500 fine, complete a
drinking driver’s class, and obtain a substance abuse evaluation.
Beckwith
appeals.
II.
Standard of Review
We review constitutional questions de novo, in light of the totality of the
circumstances. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).
III.
Merits
Beckwith contends that the police officers’ continued presence in his home
after he revoked his consent violated his Fourth Amendment rights. Evidence
obtained in violation of the Fourth Amendment guarantees against unreasonable
searches and seizures is inadmissible in a criminal prosecution. State v. Manna,
534 N.W.2d 642, 643-44 (Iowa 1995).
Warrantless searches and seizure are unreasonable under the Fourth
Amendment, unless they come within one of the exceptions to the warrant
requirement.
State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006).
The
recognized exceptions include: (1) consent; (2) plain view; (3) probable cause
coupled with exigent circumstances; (4) search incident to arrest; and (5)
emergency aid. Id. If there is no search warrant, the State must prove by a
preponderance of the evidence that one of the recognized exceptions applies.
State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).
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Beckwith claims that while he initially consented to the officers’ presence,
he later withdrew his consent. “[A]n initial voluntary grant of consent may be
limited, withdrawn or revoked at any time prior to the completion of the search.”
State v. Sanford, 474 N.W.2d 573, 575 (Iowa 1991). In order to revoke consent,
a defendant must clearly inform officers that the initial consent has been
withdrawn or revoked. State v. Anderson, 517 N.W.2d 208, 213 (Iowa 1994). A
revocation of consent does not operate to retroactively make a search conducted
prior to the time of revocation unreasonable. State v. Myer, 441 N.W.2d 762,
765 (Iowa 1989). Any attempt to revoke consent after an investigation reveals
critical evidence is ineffective. Anderson, 517 N.W.2d at 213.
As the district court noted, the evidence of whether Beckwith revoked his
consent was “disputed.” The police officers testified they were not asked to leave
the premises. Beckwith relies upon officer Hewlett’s statement that Beckwith
could have asked the officers to leave, but he did not remember such a
statement being made. This is far from being an admission that the officers had
been asked to leave. Officers Batcheller and Singleton clearly stated they never
heard Beckwith or anyone else ask the officers to leave.
Even if we accepted the testimony of Beckwith’s witnesses that he had
asked the officers to leave, however, we find no evidence in the record to show
that Beckwith clearly and unequivocally revoked his consent prior to the time he
admitted he had been driving the pickup. While Beckwith’s witnesses testified
they heard Beckwith state that he wished the officers would just leave, no time
frame was given by any of these witnesses. On our de novo review we find there
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is no evidence to show that if consent was revoked, it was revoked prior to
Beckwith’s admission.
We determine the district court properly denied Beckwith’s motion to
suppress. We affirm Beckwith’s conviction.
AFFIRMED.
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