STATE OF IOWA, Plaintiff-Appellee, vs. TODD MICHAEL WEBER, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-370 / 06-1792
Filed July 25, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TODD MICHAEL WEBER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, John
Bauercamper, (search warrant), Margaret L. Lingreen, (suppression motion), and
Monica L. Ackley, (trial), Judges.
Todd Weber appeals from his judgment and sentence for possession of
marijuana. AFFIRMED.
Christopher R. Riker of Riker Law Office, Decorah, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, William Shafer, County Attorney, and W. Richard White, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
2
HUITINK, P.J.
I. Background Facts and Proceedings.
On September 23, 2004, Deputy Sheriff Robert Thorsten met with a
confidential informant. The informant told Deputy Thorsten that he had seen a
sandwich bag approximately half-filled with marijuana and a glass pipe filled with
marijuana at Weber’s residence. The informant also stated he had observed
Weber and other people smoking marijuana at least four times over the last two
months. Deputy Thorsten indicated he had performed a records check which
confirmed that Weber resided at the address given by the informant.
The Honorable John Bauercamper issued the search warrant and
attached an endorsement. In his endorsement, Judge Bauercamper indicated he
relied on Deputy Thorsten’s affidavit and the statements made by the confidential
informant in making his probable cause determination.
Judge Bauercamper
further indicated he found the informant to be reliable because the informant was
a concerned citizen with no reason to fabricate the information, the disclosure of
information was against the informant’s penal interest, the informant had not
given false information in the past, and the informant had personally observed
the activity. During the search of Weber’s residence, officers seized green leafy
plant material, a glass pipe, and cash. Based on the evidence seized at Weber’s
residence, he was arrested and charged with possession of marijuana in violation
of Iowa Code section 124.401(5) (2003).
Weber filed a motion to suppress the evidence, contending the district
court should not have found probable cause to issue the search warrant. The
district court found the informant was reliable because he was a concerned
3
citizen with no reason to fabricate the information, he made a statement against
his penal interest, he had not given false information in the past, his observations
were first-hand, and his descriptions were detailed.
The district court found
probable cause existed to issue the warrant and subsequently denied Weber’s
motion to suppress.
minutes.
Weber was found guilty after a stipulated trial on the
On appeal, Weber argues that the search warrant application and
attachments fail to establish the reliability of the confidential informant.
II. Timeliness of Appeal.
The State contends Weber’s appeal is untimely. The State asserts that
Iowa Rule of Appellate Procedure 6.5(1) requires the defendant file a notice of
appeal within thirty days from a judgment entry. Iowa R. Civ. P. 6.5(1) (2005).
Rule 6.5(1) states that “appeals to the supreme court must be taken within, and
not after, 30 days from the entry of the order, judgment, or decree . . . .” Id.
(emphasis added). The notice of appeal was file-stamped by the district court on
November 3, 2006, and the judgment was entered and filed with the district court
on October 2, 2006.
The deadline for this appeal under rule 6.5(1) was
November 1, 2006. The State correctly notes that the notice of appeal was filed
more than thirty days after the entry of judgment. The notice of appeal contains
a proof of service stamp which is signed and dated November 1, 2006. The
State does not cite any case law which indicates that the words “taken within” in
rule 6.5(1) require filing within thirty days of the entry of judgment or that service
is insufficient for compliance with the rule.
Furthermore, under our supreme court’s decision in Thayer v. State, 653
N.W.2d 595, 598 (Iowa 2002), this appeal was timely. Thayer had timely served
4
her notice of appeal on all parties but did not file her notice of appeal with the
district court clerk until thirty-five days after serving the notice on opposing
counsel. Id. In determining whether Thayer had timely filed her appeal, the
supreme court cited Iowa Rule of Civil Procedure 1.442(4) which states,
Filing is timely if all necessary documents are filed with the court
either before service or within a reasonable time thereafter . . .
Whenever these rules or the rules of appellate procedure require a
filing with the district court or its clerk within a certain time, the time
requirement shall be tolled when service is made, provided the
actual filing is done within a reasonable time thereafter.
Id. (emphasis added in underlying case). The supreme court then stated, “The
time for filing an appeal is tolled upon service if the party files within a reasonable
time after service.” Id. The supreme court held that Thayer had timely served
and filed her appeal. Id. at 599. Weber’s notice of appeal was timely served on
November 1, 2006, and filed with the district court two days after, on
November 3. We hold Weber’s appeal is timely.
III. Standard of Review.
When a defendant challenges a search warrant on constitutional grounds,
our review is de novo. State v. Davis, 679 N.W.2d 651, 655-56 (Iowa 2004). We
do not make an independent determination of probable cause, but only
determine whether the issuing court had a substantial basis for finding the
existence of probable cause. Id. at 656. In determining whether substantial
basis existed for a finding of probable cause, we are limited to consideration of
only that information, reduced to writing, which was actually presented to the
judge at the time the application for warrant was made. State v. Gogg, 561
N.W.2d 360, 363 (Iowa 1997). The information needed for a finding of probable
5
cause to support a search warrant is far less demanding than the information
necessary to sustain a conviction. State v. Wells, 629 N.W.2d 346, 355 (Iowa
2001).
IV. Discussion.
When examining whether probable cause exists to support the issuance of
a search warrant under the Fourth Amendment, we use the totality of the
circumstances test detailed in Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct.
2317, 2332, 76 L. Ed. 2d 527, 548 (1983). Davis, 679 N.W.2d at 656. The
existence of probable cause to search a particular area depends on whether a
person of reasonable prudence would believe that evidence of a crime might be
located on the premises to be searched. Gogg, 561 N.W.2d at 363. The task of
the judge issuing the search warrant is “to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit” presented
to the judge, there is a fair probability that law enforcement authorities will find
evidence of a crime at a particular place. Davis, 679 N.W.2d at 656. A probable
cause finding must rest on a “nexus between criminal activity, the things to be
seized and the place to be searched.” State v. Green, 540 N.W.2d 649, 655
(Iowa 1995). In making that determination, the judge may rely on reasonable,
common-sense inferences from the information presented. Davis, 679 N.W.2d at
656. We resolve doubtful cases in favor of upholding the validity of the search
warrant. State v. Myers, 570 N.W.2d 70, 73 (Iowa 1997).
A citizen informant is ordinarily defined as a person who is a witness to or
a victim of a crime. State v. Niehaus, 452 N.W.2d 184, 189-90 (Iowa 1990).
Information given by a citizen informant is presumptively reliable. State v. Post,
6
286 N.W.2d 195, 200 (Iowa 1979). When assessing an informant’s credibility,
we look at the informant’s past reliability, whether the informant directly
witnessed the crime or the fruits of it in the possession of the accused, the
specificity of the facts detailed by the informant, whether the information
furnished is against the informant’s penal interest, whether the informant was
trusted by the accused, and whether the information was not public knowledge.
Niehaus, 452 N.W.2d at 190.
Weber contends the informant was unreliable because there was no
indication on the search warrant application that the informant had ever given
reliable information in the past or that Deputy Thorsten knew who the informant
was. While it would be helpful to a judge to have an informant with a track record
of giving accurate information leading to arrests and convictions, it is not
necessary that the informant have a record as an informant. In U.S. v. Allen, 297
F.3d 790, 794 (8th Cir. 2002), an informant gave statements that were against his
penal interest and the police were able to corroborate some of the information he
provided. The Eighth Circuit Court of Appeals found the informant’s statements
were sufficiently reliable to support a finding of probable cause.
Id. at 795.
Weber asserts that the informant’s admission of prior use of marijuana does not
qualify as a statement against his penal interest. The deputy and the judge
issuing the warrant found otherwise. Weber cites no authority to support his
assertion and merely says it is not a violation of the Iowa Code. The informant,
however, was clearly taking a risk when he admitted he had used marijuana in
the past because he had no way of knowing whether the police would use his
statement against him or not.
7
Weber also attacks the lack of corroboration of the informant’s statement.
Attachment A to the search warrant application indicates Deputy Thorsten
conducted a records check which confirmed Weber did reside at the address the
informant had given. Weber contends this was insufficient. However, this was
not an instance where an informant stated a defendant was growing marijuana in
his home and an officer could have compared the defendant’s utility usage to that
of his neighbors to look for excessive utility usage indicative of marijuana
cultivation. Nor is this an instance where an informant reported a suspicious
amount of traffic at a defendant’s house and an officer could have conducted
surveillance of the home to confirm suspicious traffic. The lack of information
that could be independently corroborated does not make the information
inherently unreliable. Furthermore, Deputy Thorsten’s failure to state in writing
how he knew the informant or whether Weber had a past history of convictions or
drug use does not militate against a finding of probable cause.
We are asked to determine whether the issuing court had a substantial
basis for finding that probable cause existed.
The informant had sufficient
knowledge to recognize marijuana and associated paraphernalia because he had
used marijuana in the past. The informant personally observed Weber smoking
marijuana two days before he met with Deputy Thorsten, and on four other
occasions in the two months prior to the issuance of the warrant.
Under
Niehaus, the informant’s personal observations of a crime enhance the reliability
of his statements. The informant made a statement against his penal interest.
Deputy Thorsten was familiar with the glass pipe described by the informant
through his experience as a drug investigator and was aware that marijuana is
8
often smoked in that type of pipe. Deputy Thorsten also confirmed Weber was
living at the address the informant had given him. The issuing court could have
found, based on the affidavit, there was a fair probability that law enforcement
authorities would find evidence of marijuana possession in Weber’s house.
We hold the issuing court had a substantial basis for finding probable
cause existed. We affirm the finding of probable cause and uphold the search
warrant. Weber did not attack the motion to suppress or subsequent trial on any
other grounds. Therefore, we affirm Weber’s conviction.
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.
