STATE OF IOWA, Plaintiff-Appellee, vs. ANDREW JAMES NIELSEN, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 6-920 / 06-0207
Filed January 18, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDREW JAMES NIELSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, James C. Bauch,
George L. Stigler, and Kellyann M. Lekar, Judges.
Andrew James Nielsen appeals his convictions for possession of
methamphetamine with the intent to deliver more than five grams and violation of
the Drug Tax Stamp Act. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, and W. Wayne Saur, County Attorney, for appellee.
Considered by Huitink, P.J., Zimmer, J., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
HUITINK, P.J.
Andrew James Nielsen appeals his convictions for possession of
methamphetamine with the intent to deliver more than five grams, in violation of
Iowa Code section 124.401(1)(b)(7) (2005), and violation of the Drug Tax Stamp
Act, in violation of section 453B.12. Nielsen argues the trial court erroneously
overruled his motion to suppress evidence seized as the result of a warrantless
search of his automobile. We affirm.
I. Background Facts and Proceedings.
Nielsen was arrested and charged with the foregoing offenses after
Oelwein police officers Randall Voshell and Daniel Banks found thirty grams of
crystal methamphetamine during a warrantless search of Nielsen’s vehicle. Prior
to trial, Nielsen filed a motion to suppress any evidence obtained as the result of
the search of his vehicle. Nielsen argued that the arresting officers did not have
reasonable cause to stop his vehicle.
He also argued that, contrary to the
arresting officers’ claims, there was no active arrest warrant supporting the
arresting officers’ stated reason for stopping Nielsen’s vehicle. He additionally
argued his consent to search his vehicle was coerced.
The suppression record includes evidence of the following:
On
October 26, 2004, a Sac County magistrate issued a warrant for Nielsen’s arrest
on a fifth-degree theft charge. Pursuant to an internal office policy, the Sac
County Sheriff’s Office placed a 100-mile limit on the distance traveled to pick up
Nielsen if he were arrested. The Sac County magistrate’s affidavit included in
the record indicates that the sheriff may nevertheless request the warrant be
3
served, even if the person is arrested more than one hundred miles from Sac
County.
On September 9, 2005, Oelwein police officers Roland Voshell and Daniel
Banks checked the license plate on a car they saw leaving a local convenience
store at approximately 2:30 a.m. They were informed that the car was registered
to Nielsen and that there was an existing warrant for his arrest. They were also
informed of Sac County’s 100-mile transportation limit attached to the warrant.
Voshell requested verification of Sac County’s intentions concerning Nielsen’s
arrest because, in his experience, transportation limits on warrants were not
always enforced.
While awaiting a reply to that inquiry, Voshell and Banks
stopped Nielsen’s car.
Voshell approached Nielsen’s car and informed him of the reason for the
stop. Nielsen provided Voshell with a Florida driver’s license. Voshell requested
a check on the status of Nielsen’s Florida driver’s license. While awaiting a reply
to that inquiry, Nielsen was informed Sac County would not travel to Fayette
County to pick up Nielsen if he were arrested on the warrant. Voshell then asked
Nielsen if he had any drugs, alcohol, or weapons in the car. He also asked
Nielsen for consent to search his vehicle. According to Voshell’s version, Nielsen
consented to the search.
During the resulting search, Voshell and Banks
discovered the methamphetamine forming the basis of the offenses charged.
There is also evidence indicating Nielsen confirmed his consent to search and
admitted the drugs were his in a post-arrest interview.
4
Following a hearing on Nielsen’s motion, the trial court found the stop of
Nielsen’s car was supported by reasonable cause and Nielsen’s consent to
search his car was voluntary. The court accordingly denied Nielsen’s motion to
suppress. Nielsen waived his right to a jury trial and was found guilty on all
counts by the court after a bench trial on the minutes of testimony attached to the
trial information. The court subsequently entered a judgment of conviction and
sentenced Nielsen to a term not to exceed twenty-five years.
On appeal, Nielsen argues the following:
I.
The district court erred in overruling Nielsen’s motion to
suppress evidence.
II. Standard of Review.
A motion to suppress implicates the Fourth and Fourteenth Amendments
of the United States Constitution. State v. Wiese, 525 N.W.2d 412, 414 (Iowa
1994) overruled on other grounds by State v. Cline, 617 N.W.2d 277 (Iowa
2000). We review constitutional issues de novo and independently evaluate the
totality of the circumstances as shown by the entire record. State v. Howard, 509
N.W.2d 764, 767 (Iowa 1993). “We give deference to the district court’s fact
findings due to its opportunity to assess the credibility of witnesses, but we are
not bound by those findings.” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
In reviewing the trial court’s ruling, we consider both the evidence presented at
the suppression hearing and the evidence introduced at trial. State v. Breuer,
577 N.W.2d 41, 44 (Iowa 1998).
5
III. The Merits.
The Fourth Amendment of the United States Constitution requires
reasonable cause to stop a person for investigation.
State v. Heuser, 661
N.W.2d 157, 161 (Iowa 2003). A peace officer may stop an individual or vehicle
for investigatory purposes based on a reasonable suspicion, supported by
specific and articulable facts, that a criminal act has occurred or is occurring.
See State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (citing Terry v. Ohio, 392
U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).
The
existence of a valid arrest warrant is sufficient cause to justify an investigatory
stop of a vehicle. State v. Merrill, 538 N.W.2d 300, 301 (Iowa 1995).
Arrest Warrant
Nielsen claims the arrest warrant relied on by the arresting officers to stop
Nielsen’s vehicle was invalid beyond the Sac County Sheriff’s 100-mile pick-up
limit and the arresting officers therefore lacked the requisite cause to make an
investigatory stop. We disagree.
Arrest warrants issued by an Iowa magistrate must be directed to any
peace officer in the state. Iowa Code § 804.2. The warrant may be delivered to
any peace officer for execution and served in any county in Iowa. Id. § 804.4. A
peace officer may make an arrest if the officer has received an official
communication that a warrant has been issued for the arrest of a person on a
designated charge. Id. § 804.7(4). We are unable to reconcile Nielsen’s claim
that the Sac County arrest warrant was invalid with the express statutory
provisions providing for execution of an arrest warrant by a peace officer
6
anywhere in Iowa. Moreover, the suppression record indicates that the 100-mile
limitation attached to the warrant was an administrative condition imposed by the
Sac County Sheriff’s Office and subject to revision or waiver in the Sac County
Sheriff’s discretion. In the absence of any controlling authority to the contrary,
we decline to hold that an administrative limit attached to an arrest warrant by a
county sheriff defines the territorial scope of the warrant’s validity. Here, the
arresting officers had reasonable cause to make an investigatory stop because
the Sac County arrest warrant showed a connection between the vehicle and the
person named in the warrant. We accordingly affirm on this issue.
Consent to Search
As noted earlier, Nielsen claims his consent to search his vehicle was
coerced. A well-established exception to the warrant requirement is a search
conducted by consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct.
2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973). A warrantless search conducted
by free and voluntary consent does not violate the Fourth Amendment. See id.;
State v. King, 191 N.W.2d 650, 655 (Iowa 1971). Consent is considered to be
voluntary when it is given without duress or coercion, either express or implied.
See Schneckloth, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.
This test balances the competing interests of legitimate and effective police
practices against our society’s deep fundamental belief that the criminal law
cannot be used unfairly. See id. at 224-25; 93 S. Ct. at 2046-47, 36 L. Ed. 2d at
861. Thus, the concept of voluntariness which emerges as the test for consent
represents a fair accommodation of these interests and values. See id. In the
7
end, the inquiry becomes a question of fact based upon the totality of the
relevant circumstances. See id. at 226, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.
The State is required to establish the consent was voluntary by a preponderance
of the evidence. State v. Garcia, 461 N.W.2d 460, 462 (Iowa 1990).
The appellate defender argues Nielsen only consented to the search
“because he was going to be detained until a canine unit showed up unless he
consented to a search of his car.” The record on this issue includes the following
testimony by Officer Voshell:
Q. Okay. While you were waiting for information back as to
the status of his license in the state of Florida, did you have further
conversation with Mr. Nielsen? A. Yes, sir, I did.
Q. Tell us about it. A. I requested — I requested consent
for the — from the defendant to search his person and his vehicle.
Q. And what was Mr. Nielsen’s response? A. He told me
that I could.
....
Q. Okay. After the consent was given, I guess, if you have
any details of any specifics as far as exactly what you asked or
precisely what he said, now would be the time to add those. How
did you ask the question, how did he respond, that type of thing?
A. Okay. I don’t — I don’t recall my exact — exact verbiage on
that night.
Q. Okay. How did Mr. Nielsen indicate his consent? A. He
told me yes, and then he told me that I could search whatever I
wanted.
Nielsen testified:
Q. Okay. You are stopped. What happens? A. I’m
stopped. Officer Voshell comes up to my side. It was Officer
Banks — is that his name — comes up to the other side. And I
asked the officer why I was getting pulled over. And he said — he
asked me if I was aware that I had a warrant from Sac County, and
I was like no, I didn’t have no idea. And then I — it came — right
when I said, no, it came over his thing on his shoulder that they
would not extradite me. And I said, “Am I free to go?” And he said
that we weren’t done yet, and he ordered me out of the vehicle.
And he asked me if I had any weapons on me or anything that
8
could hurt him, and I said, “Yes, I got a pocket knife”, and I handed
him my pocket knife. And then he escorted me back to his vehicle,
and he asked me to search — if he could search — make a further
search in my vehicle. And I asked him why, the warrant — they
didn’t want me, was I free to go, you know, and they were not going
to extradite me. And he informed me that he was a K-9 unit and
that he was just doing his job and this was — this is routine. And I
said, “Well, go ahead then”, you now. I didn’t want to give the guy
a hard time, you know, so . . .
Q. At the time you are telling him that, you are thinking he
has authority, basically? A. Oh, most definitely. Ordered me right
out of the car, you know.
We, like the trial court, find the State has met its burden on this issue. Contrary
to Nielsen’s claims, we find nothing coercive about Voshell’s statements or
actions prior to requesting Nielsen’s consent. Moreover, the record indicates
consent was requested within seven minutes of the time Nielsen was stopped
and while Voshell was awaiting a status report on Nielsen’s Florida driver’s
license.
Lastly, we note the lack of any evidentiary support for appellate
counsel’s claims concerning a threatened delay pending arrival of a drug dog.
We affirm on this issue.
We affirm Nielsen’s convictions.
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.
