STATE OF IOWA, Plaintiff-Appellant, vs. SHAWN PATRICK SWEENEY, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-762 / 07-0336
Filed December 28, 2007
STATE OF IOWA,
Plaintiff-Appellant,
vs.
SHAWN PATRICK SWEENEY,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Lawrence Jahn,
District Associate Judge.
Following the granting of discretionary review, the State requests reversal
of a district court order granting defendant’s motion for suppression of evidence.
AFFIRMED.
Thomas J. Miller, Attorney General, Thomas S. Tauber and Mary Tabor,
Assistant Attorneys General, Stephen Holmes, County Attorney, and Bryan
Barker, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and David Adams, Assistant
Appellate Defender, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Baker, JJ.
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BAKER, J.
In this appeal, we are asked to decide whether a police officer’s
observation of a plastic baggie protruding from the pocket of the passenger of a
vehicle, together with (1) the officer’s knowledge that the driver’s license had
been revoked for a drug-related offense, (2) the passenger’s refusal to tell the
officer what is in the baggie and pushing the baggie back into his pocket, and (3)
the officer’s knowledge that illegal drugs are commonly carried in plastic baggies,
constitutes probable cause to conduct a warrantless search. We hold it does not.
I. Background and Facts
On December 21, 2006, Officer Adrienne Johnson of the Ames Police
Department stopped a van because one of its headlights was not working. The
driver of the van was Ryan Walton, whose driver’s license had been revoked.
Shawn Sweeney, who did have a valid license, was the only passenger in the
van. Officer Johnson checked Walton’s and Sweeney’s licenses. After a backup
officer arrived, she arrested Walton for driving while his license was revoked,
searched him and found no drugs in his possession, and placed him in the back
of her patrol car. Officer Johnson asked Walton if Sweeney could drive the van,
as an alternative to having it towed, to which Walton agreed.
Officer Johnson approached the passenger side of the van. She asked
Sweeney to step out of the van so that she could search the van incident to the
arrest of Walton, before releasing it to Sweeney. As Sweeney stepped out of the
van, Officer Johnson saw one to two inches of a clear plastic baggie sticking out
from the right-hand pocket of his coat. The contents, if any, were not visible.
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She had Sweeney put his hands on the roof of the van in pat-down position, and
after starting to frisk him, asked him about the baggie. Sweeney responded that
he had no idea what was in the baggie, and took his hand off of the van to push
the baggie further into his pocket. Officer Johnson told him to take his hand out
of his pocket. When he did, she placed his hand back on the van, reached into
his pocket, and pulled out the baggie.
It contained 2.9 grams of marijuana.
Officer Johnson arrested Sweeney for possession of marijuana, handcuffed him,
and searched him incident to arrest. In the other pocket of his coat, she found a
second bag containing a 224-gram brick of marijuana.
Sweeney was charged by trial information with possession with intent to
deliver marijuana in violation of Iowa Code section 124.401(d) (2005) and tax
stamp violation under sections 453B.1, 453B.3, and 453B.12. Sweeney filed a
motion to suppress the evidence underlying the charges, claiming Officer
Johnson had subjected him to a warrantless search without probable cause and
exigent circumstances.
Following a hearing, the district court sustained
Sweeney’s motion to suppress. The court determined that, under the facts of the
case, the officer did not have good cause to search Sweeney for illegal drugs.
The court found the search was illegal and granted Sweeney’s motion to
suppress any evidence obtained from the search of his person or statements
made by him after the commencement of the pat-down.
The State filed an
application for discretionary review of the district court’s suppression ruling. The
supreme court granted discretionary review and stayed the proceedings in district
court pending disposition of this discretionary review action.
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II. Merits
The State asserts that Officer Johnson had probable cause and exigent
circumstances justify the search.
Because Sweeney claims that the officer
subjected him to a warrantless search in violation of his constitutional rights, our
review is de novo. State v. Simmons, 714 N.W.2d 264, 271 (Iowa 2006).
This review requires us to make an independent evaluation of the
totality of the circumstances as shown by the entire record. 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. (internal citations and quotations omitted).
Sweeney claims that Officer Johnson’s warrantless search was in violation
of his rights under the Fourth Amendment to the United States Constitution and
article I, section 8 of the Iowa Constitution, both of which protect “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” “[O]ur analysis applies equally to both the
state and federal grounds.” State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005).
Unless a recognized exception to the warrant requirement exists, such as
probable cause coupled with exigent circumstances, searches and seizures
conducted without a warrant are per se unreasonable. Simmons, 714 N.W.2d at
271-72.
“An initially unconstitutional search is not validated by reason of its
success.” State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997) (citing State v.
Swartz, 244 N.W.2d 553, 555 (Iowa 1976)).
It is not contested that Officer Johnson had a right to stop the van, to
search the van incident to Walton’s arrest, and to order Sweeney out of the van
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in order to search the vehicle. The crux of the appeal is based on what occurred
after Officer Johnson ordered Sweeney out of the van. Sweeney claims that,
when the officer turned her attention to him with the intent to pat him down for
weapons, his constitutional rights were violated because she had no basis in fact
to justify a pat-down, she did not have probable cause to reach into Sweeney’s
pocket, and no exigent circumstances existed to justify the search.
The State acknowledges that Officer Johnson did not have a legal basis to
pat Sweeney down for weapons. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 1880, 20 L. Ed. 2d 889, 906 (1968) (holding that in order to justify a patdown, the officer “must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that
intrusion”). The sole question before this court, therefore, is whether seeing a
baggie protruding from Sweeney’s coat pocket, under the facts and
circumstances known to the officer, was sufficient to warrant a person of
reasonable prudence to believe that the baggie contained contraband. We agree
with the district court that probable cause did not exist for this warrantless
search.
“[W]hen there is probable cause for the search, and exigent circumstances
require that the search be conducted immediately,” officers may conduct a
warrantless search. Carter, 696 N.W.2d at 37. Evidence from a warrantless
search “is inadmissible unless the State proves by a preponderance of the
evidence that [the] exception applies.” Id. “In making this determination, we
must assess a police officer’s conduct based on an objective standard.” State v.
Nitcher, 720 N.W.2d 547, 554 (Iowa 2006).
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The State argues that Officer Johnson had probable cause to conduct a
warrantless search of Sweeney because (1) she knew Walton’s license had been
revoked for a drug-related offense, (2) she saw a plastic baggie protruding from
Sweeney’s coat pocket, (3) when she asked about the baggie, Sweeney claimed
to have no idea what it was and then pushed it back in his pocket, from which
she could reasonably believe that Sweeney was lying about the baggie, and (4)
she knew that illegal drugs are commonly carried in plastic baggies. We hold
that an officer’s observation of an inch or two of a plastic baggie protruding from
an individual’s pocket, under the facts and circumstances known to Officer
Johnson, was insufficient to warrant a person of reasonable prudence to believe
that the baggie contained contraband, and therefore does not constitute probable
cause to conduct a warrantless search.
“In the context of evidentiary searches, ‘probable cause’ exists when a
reasonably prudent person would believe that evidence of a crime will be
discovered in the place to be searched.” Moriarty, 566 N.W.2d at 868. The State
relies on State v. Carter, where, “considering the totality of the circumstances,”
the court found the State had proven by a preponderance of the evidence that
officers had probable cause to search a vehicle. 696 N.W.2d at 37. In Carter,
the officer had observed “two inches of a baggie sticking out of the ashtray of the
center console.” Id. The existence of the baggie alone, however, was not the
only basis for the search. When the officer signaled the vehicle to stop, the
driver began digging around the area of the center console while driving, crossed
three lanes of traffic, and struck a curb. Carter, 696 N.W.2d at 37. When the
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vehicle stopped, the driver quickly exited the vehicle and appeared nervous. Id.
at 37-38. The court held the sum total of the facts together with the officer’s
“experience and knowledge would lead a reasonable person to believe that
evidence of a crime would be discovered under the ashtray.” Id. at 38. The court
further noted that, “[o]ther courts have found that a plastic baggie is a commonly
used container for narcotics and when seen in an unusual setting can tip the
scales in favor of probable cause for a search.” Id. (emphasis added). For
example, in People v. Hilt, 698 N.E.2d 233, 236 (Ill. 1998), the court held an
officer’s observation of a torn and knotted baggie in plain view inside a vehicle,
combined with the officer’s knowledge of drug packaging, provided the officer
with probable cause to conduct a warrantless search of the car.
We find the facts in this case to be distinguishable from those in Carter. A
baggie in an individual’s pocket is not necessarily an unusual setting. Individuals
have baggies (generically known as sandwich bags) in their pockets to carry a
variety of legitimate items, e.g., single doses of medication, litter, snacks, or even
a sandwich. Further, unlike the driver in Carter, there was nothing in Sweeney’s
behavior to justify a belief that he possessed drugs.
We also find that Officer Johnson’s knowledge that the van driver’s license
had been revoked for a drug-related offense insufficient to justify the warrantless
search. The State argues that the officer’s knowledge that Walton’s license had
been revoked was an important factor giving rise to probable cause, yet cites no
case authority where knowledge of the companion’s criminal background, under
circumstances similar to this case, was found to support probable cause.
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“[A] person’s mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable cause to search
that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d
238, 245 (1979) (citation omitted). A search or seizure based on probable cause
must be based on probable cause with respect to that particular person. Id.
“Ybarra, however, does not hold that companionship is irrelevant to the
determination of probable cause or reasonable suspicion.” U.S. v. Silva, 957
F.2d 157, 160 (5th Cir. 1992).
While “‘a suspect’s companionship with or propinquity to an individual
independently suspected of criminal activity is a factor to be considered in
assessing the reasonableness of a seizure,’” something more is required. State
v. Kreps, 650 N.W.2d 636, 647 (Iowa 2002) (quoting with approval Silva, 957
F.2d at 161). For example, a suspect’s fleeing from officers who had ordered
him to stop, a suspect’s refusal to comply with an officer’s orders, and a
companion’s appearing to be under the influence coupled with other suspicious
behavior, have lead courts to find “the ‘more’ that is required” for probable cause.
U.S. v. Valle Cruz, 452 F.3d 698, 703 (8th Cir. 2006); see also Silva, 957 F.2d at
161; U.S. v. Bell, 762 F.2d 495, 501 (6th Cir. 1985).
In this case, before the questioning regarding the baggie, there was
nothing to lead Officer Johnson to believe criminal activity was afoot. Officer
Johnson testified that both occupants were cooperative.
existence of the baggie that aroused the officer’s suspicion.
It was only the
The baggie in
Sweeney’s pocket, his refusal to say what was in it, and Officer Johnson’s
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assertion that illegal drugs are commonly carried in plastic baggies, do not
constitute the “more” required to give rise to probable cause to search.
Perhaps most telling is the testimony of Officer Johnson herself:
Q.
Johnson:
Q.
Johnson:
You had suspicion that it was drugs?
Yes.
You didn’t have probable cause?
Correct.
While the officer’s subjective belief is not controlling, we are unable to
conclude that Officer Johnson possessed a reasonable belief that evidence of a
crime would be discovered in Sweeney’s pocket. See Moriarty, 566 N.W.2d at
868. At the time Officer Johnson put her hand in Sweeney’s pocket, she lacked
probable cause to conduct the warrantless search.
The State also argues that exigent circumstances existed to search
Sweeney’s pocket, as it was probable Sweeney would destroy or conceal the
contents of the baggie if Officer Johnson did not search him immediately. See
Nitcher, 720 N.W.2d at 555 (noting exigent circumstances include “the probability
that, unless taken on the spot, evidence will be concealed or destroyed”). “If we
find a basis for probable cause, we will then determine whether exigent
circumstances existed to justify the warrantless entry.” State v. Naujoks, 637
N.W.2d 101, 108 (Iowa 2001). Because we find no probable cause, we need not
consider the existence of exigent circumstances on appeal.
III. Conclusion
Because the officer lacked probable cause, the search of Sweeney violated
his constitutional right to be free from unreasonable searches. Accordingly, we
affirm the district court’s order granting Sweeney’s motion to suppress the
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evidence obtained from the search of his person or statements made by him after
the commencement of the pat-down. Our holding that there was no probable
cause effectively disposes of the other issues raised on appeal.
AFFIRMED.
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