STATE OF IOWA, Plaintiff - Appellee, vs. ANDRE CORBETT , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-563 / 07-1666
Filed September 17, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDRE CORBETT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs
(motion to suppress) and Mitchell E. Turner (trial and sentencing), Judges.
Defendant appeals following his conviction of possession of marijuana.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Harold Denton, County Attorney, and Susan Nehring, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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VOGEL, J.
Andre Corbett appeals from his conviction for possession of marijuana.
Corbett asserts that the district court erred in denying his motion to suppress.
Because we agree with the district court that the stop and brief detention of
Corbett was supported by reasonable suspicion, we affirm.
I. Background Facts and Proceedings
On September 20, 2006, the Cedar Rapids Police Department received an
anonymous call that there was narcotics activity at an apartment building located
at 1407 Third Avenue, SE. Officer Scott Syverson, who has been employed with
the Cedar Rapids Police Department for twenty-seven years and has patrolled
this area for the last ten to twelve years, responded to the call. He testified that
he was familiar with this particular building because the police department had
previously received complaints of narcotics activity taking place in the basement
and on the first floor of the building and had been requested to “periodically
check those areas and that building to see if we could catch anybody . . . or at
least keep people away from there.”
As recently as a week or two before
Corbett‟s arrest, Officer Syverson had discovered evidence of narcotics use in
the form of drug paraphernalia left at the building.
As Officer Syverson approached the building in his patrol car, he observed
a group of approximately ten people behind the building. He recognized one
person as a man he had previously arrested for a narcotics incident. While
remaining out of sight, he requested assisting police officer units. Once the other
officers arrived in the area, Officer Syverson pulled into the driveway, but did not
activate his lights or sirens. Immediately, the group of people began walking
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away. Officer Syverson exited his car and ordered the individuals to stop. Four
members of the group began to run away. The individuals who came back to the
parking lot included Corbett. They were directed by the officers to take a seat on
the curb.
The officers explained to the group that they were investigating a narcotics
complaint. At this time, Officer Syverson recognized Corbett because Syverson
had previously assisted the narcotics bureau with serving two search warrants on
Corbett‟s home. When Officer Syverson asked Corbett for permission to search
his person, Corbett consented. As a result of the search, crack cocaine and
marijuana was found on Corbett‟s person.
Corbett filed a pretrial motion to suppress any evidence obtained as a
result of the stop. The district court denied Corbett‟s motion, finding that the
officer‟s stop of Corbett was supported by reasonable suspicion followed by
Corbett‟s consent to the search of his person. After the district court‟s ruling,
Corbett waived his right to a jury trial and stipulated to a trial on the minutes of
evidence. He was found guilty of possession of marijuana pursuant to Iowa
Code section 124.401(5) (2007) and possession of crack cocaine with intent to
deliver pursuant to Iowa Code section 124.401(1)(c)(3).
The district court
granted Corbett‟s request to defer judgment on the crack cocaine conviction.
Corbett was sentenced to sixty days in jail for the possession of marijuana
conviction. Corbett appeals from the judgment imposed on his possession of
marijuana conviction.
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II. Standard of Review
We review constitutional claims de novo. State v. McGrane, 733 N.W.2d
671, 675 (Iowa 2007).
This review requires us to “make an independent
evaluation of the totality of the circumstances as shown by the entire record.”
State v. Simmons, 714 N.W.2d 264, 271 (Iowa 2006). Due to the district court‟s
opportunity to evaluate the credibility of the witnesses, we give deference to its
factual findings, but are not bound by them. Id.
III. Motion to Suppress
The Fourth Amendment to the United States Constitution and article I,
section 8 of the Iowa Constitution protect individuals against unreasonable
searches and seizures. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,
1691, 6 L. Ed. 2d 1081, 1090 (1961) (stating the Fourth Amendment to the
federal constitution is binding on the states through the Fourteenth Amendment
to the federal constitution).
The language of article I, section 8 of the Iowa
Constitution is nearly identical to the language of the Fourth Amendment;
therefore, we “usually deem the two provisions to be identical in scope, import,
and purpose.” State v. Kreps, 650 N.W.2d 636, 640-41 (Iowa 2002). Further,
Corbett has not argued that there is a distinction between the federal and state
constitutions; thus, our discussion will apply equally to both constitutions. State
v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006).
Pursuant to the Fourth Amendment, an investigatory stop is a seizure and
must be supported by reasonable suspicion that criminal activity may be afoot.
Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-81, 20 L. Ed. 2d 889, 90506 (1968); Kreps, 650 N.W.2d at 641-42. When determining whether a stop is
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supported by reasonable suspicion, “we must examine the „totality of the
circumstances‟ in every case to see if the officer conducting the search has a
„particularized and objective basis for suspecting legal wrongdoing.‟”
United
States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005) (quoting United States v.
Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002)).
“In forming a basis for suspicion, [an officer] may „draw on [his] own experience
and specialized training to make inferences from and deductions about the
cumulative information available to [him] that might well elude an untrained
person.‟” United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003) (quoting
Arvizu, 534 U.S. at 273, 122 S. Ct. at 750-51, 151 L. Ed 2d at 749-50).
When a person challenges a stop on the basis that reasonable
suspicion did not exist, the State must show by a preponderance of
the evidence that the stopping officer had specific and articulable
facts, which taken together with rational inferences from those
facts, to reasonably believe criminal activity may have occurred.
State v. Teague, 676 N.W.2d 197, 204 (Iowa 2004).
In the present case, Corbett asserts that his trial counsel was ineffective
for failing to timely file a meritorious motion to suppress. Corbett‟s trial counsel
filed a motion to suppress approximately 125 days after Corbett was arraigned.
See Iowa R. Crim. P. 2.11 (requiring that a motion to suppress evidence be filed
no later than forty days after arraignment).
Although the State resisted the
motion based upon the untimeliness, the district court proceeded to hear the
motion and ruled on the merits. On appeal, the State does not raise the issue of
whether the motion to suppress was time-barred, but rather contends the district
court properly denied Corbett‟s motion. See Iowa R. App. P. 6.14(1)(c) (“Failure
in the brief to state, to argue or to cite authority in support of an issue may be
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deemed waiver of that issue.”). Therefore, we will address the merits of the
district court‟s suppression ruling.
Corbett claims the officers did not have reasonable suspicion to make an
investigatory stop. We disagree. The stop was made on more than an “inchoate
and unparticularized suspicion or „hunch‟ of criminal activity.” Illinois v. Wardlow,
528 U.S. 119, 123-24, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570, 576 (2000)
(quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). The
apartment building was located in a high crime area and this specific apartment
building had a recent history of illegal drug use on its premises. See Wardlow,
528 U.S. at 124, 120 S. Ct. at 676, 145 L. Ed. 2d at 576 (“[O]fficers are not
required to ignore the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to warrant further
investigation.”). Additionally, an anonymous caller had alerted police officers to
narcotics activity on the day in question. This phone call was corroborated by the
officer‟s previous information and subsequent observations. Florida v. J.L., 529
U.S. 266, 270-71, 120 S. Ct. 1375, 1378-79, 146 L. Ed. 2d 254, 260-61 (2000)
(finding that in order for an anonymous tip to rise to constitute reasonable
suspicion, it must have indicia of reliability); See State v. Walshire, 634 N.W.2d
625, 630 (Iowa 2001) (holding that an anonymous call by a citizen informant that
reported a drunk driver constituted reasonable suspicion where an officer verified
the vehicle‟s description, license number, and general location).
Upon arriving at the apartment building, Officer Syverson recognized one
of the people Corbett was with as an individual he had previously arrested for a
narcotics activity. See State v. Bergman, 633 N.W.2d 328, 333 (Iowa 2001)
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(discussing that the defendant was spotted with a known drug dealer). Finally,
once Corbett became aware of the officer‟s presence, he abruptly attempted to
leave the scene.
See State v. Cline, 617 N.W.2d 277, 283 (Iowa 2000),
abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001)
(finding that the defendant‟s attempt “to leave the scene without being detected”
was a factor in a Terry analysis); see also 4 Wayne R. La Fave § 9.5(f), at 516
(4th ed. 2004) (discussing that an individual‟s attempt to avoid officers by
changing directions or fleeing at the sight of officers is a factor in a Terry
analysis).
Although Corbett argues that he had a right to walk away from the officers,
this argument is misplaced.
If an officer approaches an individual without
reasonable suspicion or probable cause, that “individual has a right to ignore the
police and go about his business.” Wardlow, 528 U.S. at 125, 120 S. Ct. at 676,
145 L. Ed. 2d at 577 (citing Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319,
1324, 75 L. Ed. 2d 229, 236 (1983)). “[A]ny refusal to cooperate, without more,
does not furnish the minimal level of objective justification needed for [an
investigatory stop].” Id. (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct.
2382, 2387, 115 L. Ed. 2d 389, 400 (1991) (internal quotations omitted)).
However, that was not the case here. Corbett attempted to leave the scene once
he became aware of police presence and prior to being stopped by Officer
Syverson. A change in an individual‟s activity or conduct because they become
aware of police presence is not simply going about one‟s business. See Bailey,
417 F.3d at 877 (discussing the defendant‟s reaction to an approaching officer,
which was that the defendant “turned in a manner that suggested he was
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attempting to conceal contraband”); see also Wardlow, 528 U.S. at 125, 120 S.
Ct. at 676, 145 L. Ed. 2d at 577 (distinguishing between “going about one‟s
business” and “unprovoked flight”).
Thus, a defendant‟s reaction to police
presence is a factor in a Terry analysis. Bailey, 417 F.3d at 877 (stating that “the
parties‟ behavior when they become aware of police presence” is a factor in a
Terry analysis) (citations omitted).
As noted above, we must consider the totality of the circumstances
confronting the officer at the time the decision to stop an individual is made.
Kreps, 650 N.W.2d at 642. We conclude that in combination, these cited factors
gave Officer Syverson reasonable suspicion to believe Corbett may be involved
in illegal drug activity. See Wardlow, 528 U.S. at 124, 120 S. Ct. at 676, 145 L.
Ed. 2d at 576 (finding the defendant‟s presence in an area of heavy narcotics
trafficking and his unprovoked flight upon noticing the police supported
reasonable suspicion to believe he may be involved in criminal activity); State v.
Cline, 617 N.W.2d at 283 (holding the defendant‟s presence on property where
drug dealing had occurred and her subsequent flight when police arrived
supported reasonable suspicion to believe she may be involved in criminal
activity). In light of Officer Syverson‟s experience as a police officer patrolling
this neighborhood with both frequent and recent drug activity, it would have been
“poor police work” had he chosen not to investigate these circumstances further.
Terry, 392 U.S. at 23, 88 S. Ct. at 1881, 20 L. Ed 2d at 907 (“It would have been
poor police work indeed for an officer of 30 years‟ experience in the detection of
thievery from stores in this same neighborhood to have failed to investigate this
behavior further.”).
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An investigatory stop permits an officer to resolve an ambiguity, that is
whether otherwise innocent conduct also suggests that criminal activity is afoot.
Wardlow, 528 U.S. at 125, 120 S. Ct. at 677, 145 L. Ed. 2d at 577 (citing to the
facts of Terry, 392 U.S. at 5-6, 88 S. Ct. at 1871-72, 20 L. Ed. 2d at 896-97).
This type of stop is minimally intrusive because it simply allows an officer to
briefly investigate. Wardlow, 528 U.S. at 126, 120 S. Ct. at 677, 145 L. Ed. 2d at
896-97. That was the case here, as the officer simply stopped Corbett for a few
minutes and asked for permission to search his person, to which Corbett
consented. See Brown v. Texas, 443 U.S. 47, 50-51, 99 S. Ct. 2637, 2641, 61 L.
Ed. 2d 357, 362 (1979) (stating that when determining whether an investigatory
stop is valid, we weigh “the gravity of the public concerns served by the seizure,
the degree to which the seizure advances the public interest, and the severity of
the interference with individual liberty”); Terry, 392 U.S. at 22, 88 S. Ct. at 1880,
20 L. Ed 2d at 906 (“One general interest is of course that of effective crime
prevention and detection[.]”).
Corbett‟s motion to suppress.
AFFIRMED.
Thus, we affirm the district court‟s denial of
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