STATE OF IOWA, Plaintiff-Appellee, vs. WENDI JO SMITH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-207 / 06-1117
Filed June 13, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WENDI JO SMITH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
The State appeals a district court ruling granting Wendi Jo Smith’s motion
to suppress evidence. AFFIRMED.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Mary Tabor,
Assistant Attorney General, and, Thomas J. Ferguson, County Attorney, and
Mary A. Schlicher, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant Appellate Defender, for appellee.
Considered by Zimmer, P.J., and Miller and Baker, JJ.
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MILLER, J.
The State appeals a district court ruling granting Wendi Jo Smith’s motion
to suppress evidence obtained as a result of a consent search of a vehicle in
which she was a passenger. We affirm.
The record reveals the following facts.
On March 21, 2006, at
approximately 9:30 p.m. Officer Albert Bovy of the Waterloo Police Department
observed a vehicle traveling with no license plates and no tail lights. Officer Bovy
stopped the vehicle due to these defects. Bovy asked the driver to step out of
the vehicle so he could show him the defective equipment and talk to him. The
driver was later identified as Christopher Montgomery.
Bovy then asked
Montgomery, who, although title had not yet officially been transferred was the
owner/purchaser of the vehicle, for consent to search his person and the vehicle.
Officer Bovy testified he made the request to search because he “ask[s] a lot of
people once I have them step out of the vehicle, to search the vehicle” just as a
“procedure.” He had no other reason, such as suspicion of criminal activity, to
search the vehicle. Montgomery consented to a search of the car.
The defendant, Wendi Jo Smith, was the passenger in the car Bovy
stopped. After Bovy obtained consent to search the car from Montgomery, he
asked Smith to step out of the car. She did so and moved to the rear of the car.
Officer Bovy proceeded to search the vehicle. During the search he observed a
purse on the front passenger seat. Bovy proceeded to search the purse and
inside found a baby sock containing Smith’s identification, social security card,
and a glass pipe used for smoking methamphetamine. Bovy advised Smith what
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he had found and she admitted the item was hers and that she used it to smoke
methamphetamine.
The State charged Smith, by trial information, with possession of a
controlled substance (methamphetamine), in violation of Iowa Code section
124.401(5) (2005).
Smith filed a motion to suppress the evidence obtained
during the consent search of her purse, as well as any resulting incriminating
statements she made.
Following hearing the district court granted Smith’s
suppression motion. In granting the motion, the court found
The issue in State v. Grant, 614 N.W. 2d 848 (Iowa Ct. App. 2000),
concerned the search of a jacket pocket belonging to the guest of a
house being searched by the consent of the owner of the house.
The Grant court found that consent could not extend to the
personal items of the guest. Likewise, this court finds that the
driver’s consent to search the vehicle did not extend to the purse of
the passenger in this circumstance where it should have been clear
to the officer that the purse belonged to the passenger and not to
the driver and was clearly identifiable as a purse.
The State filed an application for discretionary review of the district court’s
ruling. On August 31, 2006, our supreme court granted the State’s application.
Because Smith’s motion to suppress was based on alleged constitutional
violations, our review of the district court's ruling on her motion is de novo. State
v. Carter, 696 N.W.2d 31, 36 (Iowa 2005); State v. McConnelee, 690 N.W.2d 27,
30 (Iowa 2004). We independently evaluate the totality of the circumstances
found in the record. State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004).
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The Fourth Amendment to the United States Constitution guarantees a
person's right to be free from unreasonable search and seizure. 1
Evidence
obtained in violation of this provision is inadmissible in a prosecution, no matter
how relevant or probative the evidence may be. State v. Manna, 534 N.W.2d
642, 643-44 (Iowa 1995). Searches and seizures are unconstitutional if they are
unreasonable and reasonableness depends on the facts of the particular case.
State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). Warrantless searches are
per se unreasonable unless they fall within one of the carefully drawn exceptions
to the warrant requirement. Id. One such valid exception is consent searches.
Id. The State has the burden of proving by a preponderance of the evidence that
a warrantless search falls within one of the exceptions to the warrant
requirement. Id. at 107-08.
On appeal, the State contends the search of Smith’s purse was
permissible based on the consent given by Montgomery as the owner/driver of
the vehicle. Smith concedes the equipment defects were sufficient to justify the
initial stop of the vehicle, and that Montgomery had the authority to consent to a
search of the vehicle, including the passenger compartment.
However, she
contends it was not reasonable for Officer Bovy to believe such consent
authorized him to search her purse that was sitting on the passenger seat.
It is clear from the record that this search was based solely upon the
consent of the driver.
1
Officer Bovy testified he had no other articulable
The rights guaranteed by the Fourth Amendment apply to the states through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1694, 6 L.
Ed. 2d 1081, 1090 (1961).
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suspicions or reasonable cause to justify a search of the car in this case. Thus,
cases based upon probable cause and exigent circumstances are not helpful to
our analysis.
It is well established that law enforcement officers may rely on consent as
the basis for a warrantless search, but they have no more authority than that
granted by the scope of the consent. See Florida v. Jimeno, 500 U.S. 248, 25152, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297, 302-03 (1991). The scope of
the consent is measured by objective reasonableness: “what would the typical
reasonable person have understood by the exchange between the officer and the
suspect?”. United States v. Hephner, 260 F. Supp. 2d 763, 773 (N.D. Iowa
2003) (quoting Jimeno, 500 U.S. at 251, 111 S. Ct. at 1803-04, 114 L. Ed. 2d at
302-03). In Hephner the federal court concluded it was not reasonable for the
officer to believe the driver’s consent to search the vehicle authorized a search of
the locked toolbox belonging to the passenger. Id.
A finding of actual authority by a joint occupant to consent to a search
depends on whether there was joint access or control so that it would be
reasonable to recognize that a co-occupant had the right to permit inspection.
United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993 n.7, 39 L. Ed.
2d 242, 250 n.7 (1974). Under the apparent authority doctrine, a search will be
valid as long as the facts available to the officer at the time of the search would
warrant a reasonable person of caution to believe that someone with authority
over the items or containers to be searched consented to the search. Illinois v.
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Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148, 161
(1990); Hephner, 260 F. Supp. 2d at 775.
We conclude under the specific facts and circumstances here that it was
not reasonable for Officer Bovy to believe the consent given by Montgomery to
search the vehicle authorized a search of the purse. The purse was found by
Bovy sitting on the front passenger seat where Smith, the only female in the
vehicle, had been sitting immediately before he asked her to exit the vehicle.
Thus, all of the facts available to Bovy at the time of the search supported a
conclusion that Smith had placed the purse on the seat as she got out of the
vehicle and it belonged to her, not Montgomery. We agree with the district court
that “it should have been clear to the officer that the purse belonged to the
passenger and not the driver.” Accordingly, we conclude it was unreasonable for
Bovy to believe the purse belonged to anyone other than Smith or that anyone
other than she had actual or apparent authority to consent to a search of the
purse.
Assuming Officer Bovy in fact did not know to whom the purse belonged
when he conducted the search, as he testified at the suppression hearing, then
he should have made a further inquiry into the situation. “[I]f the surrounding
circumstances raise reasonable doubts as to the authority of the consenting
party, officers have an obligation to make further inquiries into the precise nature
of the situation.” State v. Grant, 614 N.W.2d 848, 854 (Iowa Ct. App. 2000)
(citing Rodriguez, 497 U.S. at 188-89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161);
see United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992) (“The
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[government’s] burden cannot be met if agents, faced with an ambiguous
situation, nevertheless proceed without making further inquiry.”); United States v.
Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991) (same). Without such further
inquiry, the search is unlawful. Rodriguez, 497 U.S. at 189, 110 S. Ct. at 2801,
111 L. Ed. 2d at 161; Grant, 614 N.W.2d at 854.
Thus, even if we assume the existence of ambiguity concerning ownership
of the purse, Officer Bovy was required to make further inquiry and it was
unreasonable and unlawful for him to search the purse without that further
inquiry. Grant, 614 N.W.2d at 854-55.
The State further argues that Smith impliedly consented to the search of
her purse because she left the purse in the car, she did not ask to retrieve it
when the officer began to search the car, and she did not object to the search.
The State also contends that Smith’s consent to a search of her person justifies
the search of her purse because a search of her person is more intrusive than a
search of her purse.
It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998); Benavides v.
J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). It is well settled
that a post-trial motion is essential to preservation of error when a trial court fails
to resolve an issue, claim, defense, or legal theory properly submitted to it for
adjudication. Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002); Manna, 534
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N.W.2d at 644-45; State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202,
206 (Iowa 1984).
Assuming, without so deciding, that the State presented these issues to
the district court, it is clear the court did not rule on them and the State made no
request for such a ruling. Therefore, there is nothing for us to review. The State
did not properly preserve for our review these additional issues. See State v.
Schiernbeck, 203 N.W.2d 546, 547 (Iowa 1973) (holding nothing was preserved
for review and reviewing court would not pass on merits of motions to dismiss
where defendant proceeded to trial without requesting ruling on his motions and
did not call matter to district court's attention until after trial).
Based on our de novo review, and for all the reasons set forth above, we
conclude it was unreasonable for Officer Bovy to believe that the consent given
by the driver to search the vehicle authorized a search of the purse. Under the
facts and circumstances available at the time of the search, even if there existed
some ambiguity as to ownership of the purse, Bovy should have made further
inquiry into the scope of the authority of the consenting party. The district court
was correct in granting Smith’s motion to suppress.
AFFIRMED.
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