STATE OF IOWA, Plaintiff-Appellee, vs. CARLOS DESHAWN NORMAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-471 / 06-0988
Filed August 8, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CARLOS DESHAWN NORMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bruce B.
Zager (motion to suppress) and James C. Bauch (conviction and sentence),
Judges.
The defendant appeals following his conviction and sentencing by the
district court. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Brad P. Walz,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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VOGEL, J.
Carlos Norman appeals the denial of his motion to suppress preceding his
convictions for possession of cocaine base with intent to deliver and failure to
affix a drug tax stamp, in violation of Iowa Code sections 124.401(1)(c) (2005)
and 453B.12 (2005) respectively. He also asserts insufficient evidence to sustain
the latter conviction. We affirm.
Norman first argues that the district court improperly denied his motion to
suppress evidence against him gained as the result of a warrantless search by
police officers in violation of the Fourth Amendment of the United States
Constitution and article 1, section 8 of the Iowa Constitution.
We review
constitutional claims de novo. State v. McGrane, __ N.W.2d __, __ (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). We give deference to the factual findings of the district
court due to its opportunity to evaluate the credibility of the witnesses, but we are
not bound by such findings. Id.
A warrantless search is per se unreasonable unless it falls within a
recognized exception. State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005). Some of
those exceptions exist when searches are based on consent, plain view, or
probable cause coupled with exigent circumstances.
State v. Simmons, 714
N.W.2d 264, 272 (Iowa 2006). For the plain view exception to apply, police must
be rightfully in the place that allows them to make the observation. McGrane, __
N.W.2d at __. In addition, the State has the burden of proving (1) the item seized
was in plain view and (2) its “incriminating character” was “immediately
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apparent.” Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2308, 110 L.
Ed. 2d 112, 123 (1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466,
91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564, 583 (1971)).
In the evening of January 10, 2006, a plainclothes police officer was
attempting to serve a subpoena, unrelated to this case, which contained an
erroneous address.
Norman pulled into a nearby driveway and the officer
approached. Norman rolled down the window slightly, and the officer identified
himself, asking whether the individual he was looking for lived at that address.
While speaking with Norman, the officer noticed a pile of money in different
denominations on Norman’s lap. He also noticed the corner of a plastic baggie
protruding from under the bills. The baggie appeared to have a white substance
in it. According to the officer, the dome light in the car was on, allowing him to
observe the money and baggie.
Through his training and experience, he
suspected illegal narcotics were present.
The officer called for backup and
requested Norman’s permission to search the vehicle. Norman consented to the
search and stepped out of the vehicle, letting the money and baggie in his lap fall
to the ground. The district court determined that the officer had probable cause
for the search because the baggie was in plain view.
It further found that
Norman consented to the search. The motion to suppress was overruled.
Norman premises his argument on challenging the credibility of the officer.
He contends that the officer’s statement that he could see the dime-sized corner
of a baggie, illuminated only by the dome light in the car, is not credible.
Contrary to the officer’s testimony, Norman testified that the dome light was not
on in the car. By the district court’s findings of fact and ruling on the motion, it is
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clear that the court found the officer’s testimony more credible. From the totality
of the circumstances, we agree.
First of all, the officer was lawfully on the
driveway, and Norman voluntarily rolled down his window part way and spoke to
the officer. Next, the officer saw the pile of money in Norman’s lap, and the
corner of a baggie that appeared to contain a white substance, suspected to be
narcotics, thereby giving rise to probable cause to search Norman and the
vehicle. See also Carter, 696 N.W.2d at 38 (noting that police observation of a
plastic baggie, commonly used as a container for narcotics, in an unusual setting
can tip the scales in favor of probable cause to search a vehicle.) The relatively
small size of the protruding portion of the baggie did not undermine the
incriminating character of the observed item.
Reviewing the totality of the
circumstances, we affirm the denial of the motion to suppress.
Norman also argues that sufficient evidence does not support his
conviction for failure to affix a drug tax stamp, in violation of Iowa Code section
453B.12.
We review sufficiency of the evidence challenges for correction of
errors at law. State v. Chang, 587 N.W.2d 459, 461-62 (Iowa 1998). The State
must produce substantial evidence on each of the essential elements of the
crime charged. State v. Limbrecht, 600 N.W.2d 316, 317 (Iowa 1999). The
elements of the drug tax stamp offense are: (1) defendant is a dealer, (2) who
unlawfully possesses, distributes or offers to sell, (3) a taxable substance, (4)
without affixing a stamp, label, or other official indicia evidencing that the required
tax has been paid. See State v. White, 545 N.W.2d 552, 555 (Iowa 1996). A
dealer is defined in part as someone who possesses ten (10) or more dosage
units of a taxable substance that is not sold by weight.
Iowa Code §
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453B.1(3)(d).
A "dosage unit" means the unit of measurement in which a
substance is dispensed to the ultimate user, including but is not limited to, a pill,
capsule or microdot. Iowa Code § 453B.1(6).
Norman contends that the State failed to prove he was a dealer because
the minutes of testimony on which the charge was tried do not support ten or
more dosage units. The evidence as shown by the minutes of testimony clearly
show that Norman had in his possession ten or more “rocks” of crack cocaine,
and the State was ready to produce testimony from the local drug task force that
the “amount of cocaine base seized, its packaging, the number of rocks, the
denominations and amount of cash on [Norman], and the cell phone would be
consistent with distribution of cocaine base, not personal use.” In addition, the
search of Norman and the vehicle did not produce any paraphernalia commonly
associated with personal use of this substance.
We conclude that sufficient
evidence supports that Norman was a “dealer” of crack cocaine for purposes of
the drug tax stamp charge and affirm his conviction.
AFFIRMED.
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