STATE OF IOWA, Plaintiff-Appellee, vs. DEIYIA RENEE BERRY, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-430 / 08-1186
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEIYIA RENEE BERRY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Page County, James S.
Heckerman and Timothy O‟Grady, Judges.
Deiyia Renee Berry appeals from judgment and sentence for possession
of marijuana. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Richard Davidson, County Attorney, and Jeremy Peterson,
Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, J.
Deiyia Renee Berry appeals from judgment and sentence for possession
of marijuana in violation of Iowa Code section 124.401(5) (2007). Upon our
review, we affirm.
I. Background Facts and Proceedings.
This appeal concerns a search warrant obtained to search a house and
not the individual apartments contained within that house.
According to the
minutes of testimony, on January 30, 2008, law enforcement officials obtained a
search warrant for Deiyia Berry‟s residence located at 307 West Valley,
Shenandoah, Iowa. The warrant was obtained after two informants gave police
information regarding drug activity in the house. The informants stated they had
been staying at the house in the apartment of Deiyia‟s son and daughter-in-law,
Jesse and Stephanie Berry. Jesse and friends had been using drugs in the
apartment, which made the informants uncomfortable. The informants told Jesse
they were uncomfortable with the drug use, and Jesse told one informant that
“they would keep it at Jesse‟s mom‟s house ([Deiyia] Berry).” One informant
stated “[t]hat day they did keep it out of the house. However, [the next day]
Jesse and his friend . . . were smoking crack in the house.” Stephanie told the
informants they had to leave and that they could not stay in the apartment
because the informants were uncomfortable with the drug use. The informants
then left the apartment. The other informant stated that Deiyia kept her drugs
and pipes by her bed in a nightstand.
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The warrant was executed at approximately 7:10 p.m. on January 30.
Two officers covered the east door, and the other officers went to the front door
of Deiyia‟s apartment.
Upon entering Deiyia‟s front door, the officers
encountered five people including Deiyia. Deiyia admitted she had a pipe on the
coffee table in the living room. A brown makeup bag containing filters, a pipe,
rolling papers, and a bag containing residue was located. Marijuana was found
in the house.
On February 18, 2008, Deiyia was charged by trial information with
possession of marijuana in violation Iowa Code section 124.401(5). On April 14
Deiyia filed a motion to suppress challenging the validity of the search warrant as
overbroad, lacking sufficient probable cause, and containing uncorroborated
statements from anonymous informants. The State resisted Deiyia‟s motion.
A hearing on the motion was held May 29, 2008, before Judge James S.
Heckerman. There, Deiyia testified that she was buying the house at 307 West
Valley on contract. She testified the house is a one-story building, which is
divided into apartments. She testified that the building once contained three
apartments, but she now occupies two of the apartments and rents the third
apartment to her son, Jesse, and his wife. She testified Jesse‟s apartment has a
separate entrance from her apartment and is separate and closed off from her
apartment. Deiyia testified she paid the water bill for all of the apartments, but
Jesse paid the electricity bill for his apartment. Deiyia testified that all of the mail
was delivered to the same mailbox and there was not a separate mailbox for
Jesse‟s apartment.
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Officer Steve Mather testified that Jesse‟s apartment is divided from the
other part of the house and cannot be accessed from the inside of the other
apartments. Officer Mather testified the informants provided a floor plan of the
house and described the rooms in the house, who occupied those rooms, and
where the drugs were located. After obtaining the informants‟ statements, Officer
Mather testified he called city hall to verify there was only one person getting
water at the house, because he had heard the house was once an apartment
complex.
Officer Mather testified that the house was not considered an
apartment unit by city hall at that time.
On June 2, 2008, Judge Timothy O‟Grady entered an order denying
Deiyia‟s motion to suppress, finding the items were seized pursuant to a validly
issued search warrant. On July 14, Deiyia waived her right to a jury trial and
proceeded with a trial to the court based upon the minutes of testimony. The
court found Deiyia guilty of possession of marijuana. She was sentenced to
serve thirty days in the county jail, which was suspended, and placed on
unsupervised probation, along with a $315 fine and suspended driving privileges
for 180 days.
Deiyia appeals. She contends the district court erred in failing to grant her
motion to suppress.
II. Scope and Standards of Review.
When assessing an alleged violation of a constitutional right, our review is
de novo.
State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005).
We
independently evaluate the totality of the circumstances. State v. Turner, 630
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N.W.2d 601, 606 (Iowa 2001). We do not make an independent determination of
probable cause, but must only determine whether the district court had a
substantial basis for finding probable cause. State v. Gogg, 561 N.W.2d 360,
363 (Iowa 1997). In making this determination, we are limited to the written
information that the applicant presented in the application for the warrant. Id.
We resolve all close cases in favor of the validity of the warrant. State v. Bishop,
387 N.W.2d 554, 558 (Iowa 1986).
III. Discussion.
On appeal, Deiyia contends the district court erred in failing to grant her
motion to dismiss.
Among other things, she argues there was not probable
cause to search her premises, asserting there is no nexus between the alleged
illegal activities of her son in his separate apartment and the existence of criminal
activity at her residence. We disagree.
The federal and Iowa constitutions demand that warrants only be issued if
there is probable cause. U.S. Const. amend. IV (“[N]o Warrants shall issue, but
upon probable cause . . . .”); Iowa Const. art. I, § 8 (“[N]o warrant shall issue but
on probable cause . . . .”). If a warrant is issued without probable cause, any
evidence obtained during the warrant‟s execution is inadmissible at trial
regardless of the evidence‟s probative value. State v. Manna, 534 N.W.2d 642,
643-44 (Iowa 1995). Probable cause is present when “„a person of reasonable
prudence would believe a crime was committed on the premises to be searched
or evidence of a crime could be located there.‟”
Gogg, 561 N.W.2d at 363
(quoting State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987)).
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In deciding whether the affidavit information provides probable cause, the
issuing judge or magistrate must make a probability determination as to whether
the items sought in the warrant are likely to be related to criminal activity and
whether the items are likely to be found in the place to be searched. Id. The
probability determination is not made in a technical manner. Id. (citing Illinois v.
Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).
“In dealing with probable cause, . . . as the very name implies, we
deal with probabilities. These are not technical; they are the factual
and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.”
Gates, 462 U.S. at 231, 103 S. Ct. at 2328, 76 L. Ed. 2d at 544 (quoting Brinegar
v. U.S., 338 U.S. 160, 175, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1890 (1949)).
The judge or magistrate should look to whether, under the totality of the
circumstances, the information in the affidavit is credible and shows a basis of
knowledge for the information.
Gogg, 561 N.W.2d at 363; see also State v.
Randle, 555 N.W.2d 666, 670 (1996) (explaining that Iowa follows the “totality of
the circumstances” test). “In so doing, a judge may rely on reasonable commonsense inferences from the information presented.” State v. Poulin, 620 N.W.2d
287, 290 (Iowa 2000).
When a warrant application requests the search of a particular place, the
applicant “must establish by reasonable inference that there is a nexus between
the place to be searched and the items to be seized.” State v. Ballew, 456
N.W.2d 230, 231 (Iowa 1990).
The nexus does not need to be established
through direct observation of the items to be seized at the place to be searched.
State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982). An adequate connection can
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be shown “by considering the type of crime, the nature of the items involved, the
extent of the defendant‟s opportunity for concealment, and the normal inferences
as to where the defendant would be likely to conceal the items.” Id. “[I]t is
constitutionally permissible for a single warrant to authorize the search of more
than one subunit in a multiple-occupancy building when there has been a
probable cause showing as to each subunit included.” 2 Wayne R. LaFave,
Search and Seizure § 4.5(c), at 591 (2004).
Based on the totality of the circumstances presented to the issuing
magistrate, a person of reasonable prudence would believe a crime was
committed on the premises to be searched or evidence of the crime would be
located there. The issuing magistrate had a reasonable basis for concluding
probable cause existed for the search of Deiyia‟s residence. Additionally, the
required nexus between the criminal activity, the things to be searched, and the
place to be searched, was shown by reasonable inference.
The informants‟
statements accompanying the search warrant application stated that after they
told Jesse they were uncomfortable with drugs being present in the apartment,
the informants were told the drugs would be kept at Deiyia‟s. Furthermore, one
statement included information that drugs and paraphernalia were being kept in
the nightstand in Deiyia‟s bedroom, as well as in Jesse‟s apartment. Therefore,
issuance of a search warrant for the entire house, including Deiyia‟s apartment,
was not improper. Consequently, we conclude the court did not err in denying
Deiyia‟s motion to suppress.1
1
Because our determination of this issue is dispositive, we need not and do not address
Deiyia‟s other claims on appeal.
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IV. Conclusion.
Because we find there was probable cause and the requisite nexus
between the place to be searched and the items to be seized, we conclude the
court did not err in denying Deiyia‟s motion to suppress.
AFFIRMED.
Vaitheswaran, P.J., concurs; Potterfield, J., concurs specially.
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POTTERFIELD, J. (concurring specially)
I concur specially to address the particularity aspect of the warrant at
issue. While I agree with the majority that the warrant application provided the
issuing magistrate with probable cause to issue a search warrant for both
subunits of the home in Shenandoah, I believe the warrant application should
have specified the existence of multiple subunits.
The specific commands of the Fourth Amendment are that “no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend IV.
Our supreme court referred to the LaFave
treatise to explain the purpose of the particularity requirement.
The obvious purpose of requiring a particular description of
the place to be searched is to minimize the risk that the officers
executing search warrants will by mistake search a place other than
the place intended by the magistrate. In addition, the requirement
of particularity is related to the probable cause requirement.
State v. Mehner, 480 N.W.2d 872, 875 (Iowa 1992) (citing 2 W. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 4.5 at 206-07 (1987)).
Berry contends that the officers applying for the search warrant for her
home had sufficient information in the statements of the informants to know that
her apartment was a separate living unit from that of her son and daughter-inlaw. I agree. The informants‟ statements refer to moving into “Stephanie and
Jesse Berry‟s house” and taking drugs to “Jesse‟s mom‟s house (Dee Berry)”
and going “up front to Jesse‟s mother‟s (Dee‟s)”. Further, although the floor plan
drawn by the informants is not part of the record, the officer testified it was
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accurate. If so, the floor plan drawing informed the officers that each apartment
had a separate entrance and was not accessible to the other from the interior.
The officers should have applied for a search warrant for each subunit of the
home. However, though the warrant application did not describe each subunit
with the particularity required by the Fourth Amendment, the informants‟
statements supplied probable cause for a search of both subunits.
The test for determining the sufficiency of the description of the place to
be searched is:
Whether the place to be searched is described with sufficient
particularity as to enable the executing officer to locate and identify
the premises with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly
searched.
Id. at 876 (quoting United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.)).
There was no probability here that Berry‟s apartment would be searched
by mistake—the officers knew that her living unit was a target of the search. Any
defect in the particularity of the description of the premises in the warrant is cured
by the existence of probable cause to search both units.
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