STATE OF IOWA, Plaintiff-Appellant, vs. JOSHUA SCOTT SHINE, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-368 / 06-1678
Filed June 13, 2007
STATE OF IOWA,
Plaintiff-Appellant,
vs.
JOSHUA SCOTT SHINE,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott,
Judge.
The State appeals from the order granting the defendant’s motion to
suppress. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Kevin Cmelik and Mary Tabor,
Assistant Attorneys General, Steve Johnson, County Attorney, and Scott
Nicholson, Assistant County Attorney, for appellant State.
Jane Odland of Walker & Billingsley, Newton, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
BAKER, J.
On June 25, 2006, an individual contacted police to report an attempted
burglary.
Dispatch contacted Officer Nicole Romer, who responded to the
complaint.
Upon arriving at the scene, the complaining party, Angela Neef,
informed Romer that one of the subjects of the complaint, later determined to be
Joshua Shine, was walking away from the scene. She also informed Romer that
Shine was in possession of drugs.
Officer Romer called to Shine and instructed him to return. She then
asked to search him, but Shine refused permission. Shine, however, did consent
to a pat down by Officer Romer. Romer then conducted a pat down search and
felt an object in the right front pocket of Shine’s shirt. Shine informed Romer that
it was a pocket knife.
After reaching in and retrieving the object, Romer
discovered that it was actually a marijuana pipe. She then placed Shine under
arrest for possession of drug paraphernalia. A subsequent search yielded both a
pocket knife and marijuana on Shine’s person.
Based on these discoveries, the State charged Shine with possession of
marijuana. Shine later filed a motion to suppress, claiming he was subject to an
illegal search without reasonable suspicion or probable cause.
Following a
hearing on the motion, the court granted the motion, concluding: “Officer Romer
was not authorized, by the mere knowledge that Joshua Scott Shine had a
pocket knife in his pants pocket, to search him for it and seize it.” It therefore
suppressed all of the evidence obtained following this illegal search. The State
thereafter sought, and was granted by our supreme court, discretionary review of
this ruling.
3
Appellate review of claimed violations of constitutional rights under the
Fourth Amendment is de novo in light of the totality of the circumstances. State
v. Lovig, 675 N.W.2d 557, 562 (Iowa 2004).
In undertaking our review, we
assess the entire record, including evidence presented during the suppression
hearing and by way of stipulation. Id. While we are not bound by the district
court's determinations, we may give deference to its credibility findings. Id.
The Fourth Amendment to the United States Constitution assures “[t]he
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.”
U.S. Const. amend. IV.
Warrantless searches and seizures are per se unreasonable, unless one of the
few carefully drawn exceptions to the warrant requirement exists. State v. Lewis,
675 N.W.2d 516, 522 (Iowa 2004). One exception to the warrant requirement is
an investigatory stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L.
Ed. 2d 889, 906 (1968); State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997).
A law enforcement officer may stop and briefly detain individuals for
investigative purposes if the officer has reasonable cause to believe a crime may
have occurred. State v. Rosenstiel, 473 N.W .2d 59, 61 (Iowa 1991). The officer
must be able to articulate something more than an inchoate and unparticularized
suspicion or hunch in order to meet the reasonable cause standard. State v.
Haviland, 532 N.W.2d 767, 768 (Iowa 1995).
Here, Officer Romer clearly
possessed reasonable cause to effect an investigatory stop of Shine.
After
responding to a citizen’s report that some men were attempting to break into her
home, the alleged victim personally identified Shine as one of the perpetrators.
4
At that time, Shine was walking away from Neef’s home.
In addition, Neef
informed Officer Romer that Shine was in possession of drugs.
After validly stopping an individual, generally speaking, “an officer may
make a protective, warrantless search of a person when the officer, pointing to
specific and articulable facts, reasonably believes under all the circumstances
that the suspicious person presents a danger to the officer or to others.” State v.
Riley, 501 N.W.2d 487, 489 (Iowa 1993). Regardless, here, Shine consented to
a pat down by Officer Romer. It was during this pat down that Romer felt an
object in Shine’s pocket, which Romer informed Shine was a knife.
We believe the State accurately characterizes the essential question as
whether Officer Romer, who was conducting a consent pat down after effecting a
permissible Terry stop, validly reached in and seized that object. We conclude
she did. Terry authorizes “a reasonable search for weapons for the protection of
the police officer.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.
The Terry court noted the search “must . . . be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden instruments
for the assault of the police officer.” Id. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at
911. Probable cause to enter a pocket or an article of clothing is provided if,
during the Terry pat down, the officer felt a weapon contained therein. Id. at 26,
88 S. Ct. at 1882, 20 L. Ed. 2d at 908.
In this case, Officer Romer felt a foreign object which Shine himself
admitted was a knife. This admission, coupled with the fact Shine had been
accused of recently attempting to break into a nearby home, supplied ample
justification for Romer to reach in and seize the object. The significant concern
5
of officer safety during an investigation would be frustrated were we to hold
Officer Romer could not reach in and take hold of what she believed, based on
Shine’s admission, to be a knife. There can be no doubt that a pocket knife can
be a dangerous weapon with the potential for use in assaulting a police officer.
The fact that the object was in fact a marijuana pipe does not change the result.
The district court erred in granting the motion to suppress. We therefore reverse
and remand for further proceedings.
REVERSED AND REMANDED.
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