STATE OF IOWA, Plaintiff-Appellee, vs. MARIA ROSAURA BARBOSA-QUINONES, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-836 / 08-1830
Filed November 25, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARIA ROSAURA BARBOSA-QUINONES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble
(motion to suppress) and Don C. Nickerson (trial), Judges.
Maria Barbosa-Quinones appeals following her conviction and sentence
for forgery. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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DOYLE, J.
Maria Barbosa-Quinones appeals following her conviction and sentence
for forgery.
She contends:
(1) the evidence was insufficient to support her
conviction because the State did not prove she intended to defraud or injure, and
(2) the district court erred in overruling her motion to suppress. She alternatively
argues her trial counsel was ineffective should we find she failed to preserve
error on either of her claims. Upon our review, we affirm.
I. Background Facts and Proceedings.
In May 2008, officers of the Mid-Iowa Narcotics Enforcement Task Force
began a drug investigation following a report from a confidential informant stating
that a person named “Juan” was selling cocaine in Des Moines. After arranging
a controlled buy with “Juan” using the informant, officers observed a Hispanic
male arrive at the predetermined location in a white minivan. The man sold
cocaine to the informant and left the location in the minivan.
The officers
followed the vehicle to a residence in Des Moines.
The officers checked the Polk County Assessor‟s website for the name of
the owners of the residence. The website showed the residence was owned by
Juan Roman and Anna C. Barboza. The officers also determined the residence‟s
utilities were in the name of Juan M. Roman, and the minivan was registered to
Anna Christiana Barboza Quinones at the address of the residence.
The officers set up two more controlled buys, with the informant arranging
to meet “Juan” to purchase cocaine. A Hispanic male showed up both times at
the arranged locations, once in the white minivan and once in a truck registered
to Anna Christiana Barboza Quinones at the address of the residence. The man
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sold the informant cocaine and left the scene.
Officers followed the man‟s
vehicle after each buy back to the same residence.
On July 3, 2008, officers surveilled the residence for the purpose of
identifying “Juan.” The officers watched a Hispanic male that one detective had
previously identified as “Juan” leave the residence in a red van, and the officers
followed him. Thereafter, the man was stopped for speeding by a West Des
Moines police officer. The man was asked for identification, and he provided the
officer a Mexican driver‟s license in the name of Felipe Rodriguez Santiago. The
insurance for the red van was in the name of his wife, Maria Barboza, as was the
vehicle‟s registration. The man stated to the officer that he lived at the residence
with his wife‟s sister, Anna Barboza.
Later in July, a fourth controlled drug buy was set after the informant
arranged to meet “Juan” to purchase cocaine. A Hispanic male arrived at the
predetermined location in the white minivan and sold cocaine to the informant.
Based upon the drug buys and their investigation, Detective Chris Scanlan
filed an application for a search warrant. The application sought to search the
residence, “the person of Felipe Rodriguez-Santiago,” and various vehicles for
items of evidence relevant to the possession and distribution of controlled
substances, including drugs and “[b]ooks, records, . . . and other items
evidencing the obtaining, secreting, transfer and/or concealment of assets and
the obtaining, secreting, transfer, concealment, and/or expenditure of money.”
An attachment to the application described the residence as a “single family
dwelling,” and the application sought to search “any and all rooms, attics,
basements” of the residence.
The application and its attachments did not
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indicate that more than one family lived at the residence. The attachment also
stated that it was known “through past case investigation that „Juan‟ [was] the
person named Felipe Rodriguez-Santiago, . . . who resides at [the residence].”
The district court found that the information contained in the application
and its attachments established probable cause to believe the items listed were
located in the places indicated and that the information justified the issuance of a
search warrant. The court issued the search warrant for the items, person, and
locations as described in the application.
On the morning of July 23, 2008, the search warrant was executed at the
residence. At that time, the officers executing the search made contact with
several different people at the residence, including Juan Roman, Anna Barboza,
Felipe Rodriguez Santiago, and the defendant.
The individuals found in the
residence were brought to the living room area, and the residence was searched.
An officer searched the basement, including the defendant‟s purse, which was
sitting on a nightstand. The purse contained several forms of identification for
the defendant, including a document appearing to be a U.S. Social Security card
issued to “Maria R Barboza.” The document was signed.
On August 14, 2008, Maria Barbosa-Quinones was charged by trial
information with forgery in violation of Iowa Code sections 715A.2(1)(d) and
715A.2(2)(4) (2007) relating to the document appearing to be a Social Security
card. The defendant filed a motion to suppress, asserting the search warrants
obtained and executed prior to her arrest were secured using knowingly false
information and allowed a broader search that would have otherwise been
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executed, violating the Fourth and Fourteenth Amendments of the United States
Constitution.
A hearing was held on the motion to suppress. There, the defendant‟s
husband, Santiago, testified. When asked if he and his family lived within a
separate place in the residence, he testified “[w]e were in the basement, but not
really exactly because we were all together.”
Following the hearing, Chief Judge Arthur Gamble entered his order
denying the defendant‟s motion to suppress. The court found the defendant
failed to show the officer knowingly provided a mistaken statement to the
magistrate approving the warrant, the scope of the warrant allowing the
basement of the residence to be searched was reasonable, and the officers had
probable cause to seize the items of identification found in the basement. The
court found that the officers had no reason to believe the residence was divided
into discrete areas where one separate family resided to the exclusion of another
family, and found Juan had access to the basement as well as the rest of the
house.
A jury trial commenced October 20, 2009, before Judge Don Nickerson.
Testimony from a special agent with the Inspector General for Social Security
established the document appearing to be a Social Security card was
counterfeited. Specifically, the agent testified that although the Social Security
number on the document was correct, the columns on the document were not
embossed, the card should have read “MariaRosasura Barbosa Quinones,” and
the document should have had a stamp on it indicating it was not valid for
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employment unless authorized by immigration officials. No evidence was offered
showing the defendant intended to use the document.
The jury convicted the defendant as charged.
The defendant was
sentenced to an indeterminate term of incarceration not to exceed five years.
The court suspended the sentence and placed the defendant on probation for
two years.
The defendant appeals.
II. Discussion.
On appeal, the defendant contends the evidence was insufficient to
support her conviction because the State did not prove she intended to defraud
or injure and the district court erred in overruling her motion to suppress. The
defendant alternatively argues her trial counsel was ineffective should we find
she failed to preserve error on either of her claims. We address her arguments
in turn.
A. Sufficiency of the Evidence.
A person is guilty of forgery when, inter alia, he or she knowingly
possesses a forged document with the intent to defraud or injure. See Iowa
Code § 715A.2(1)(d).
The defendant argues the State failed to prove the
defendant intended to defraud or injure.
The State claims error was not
preserved on this issue because trial counsel‟s judgment of acquittal only alleged
the State had not met its burden of establishing “fraud.”
1. Error Preservation.
To preserve error for appellate review on a claim of insufficient evidence,
“the defendant must make a motion for judgment of acquittal at trial that identifies
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the specific grounds raised on appeal.” State v. Truesdell, 679 N.W.2d 611, 616
(Iowa 2004).
However, “we recognize an exception to the general error-
preservation rule when the record indicates that the grounds for a motion were
obvious and understood by the trial court and counsel.” State v. Williams, 695
N.W.2d 23, 27 (Iowa 2005). We have reviewed the record relevant to the motion
for judgment of acquittal and conclude the defendant adequately preserved error.
2. Merits.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). “The
district court‟s findings of guilt are binding on appeal if supported by substantial
evidence. Evidence is substantial if it would convince a rational trier of fact the
defendant is guilty beyond a reasonable doubt.”
Id. (citations omitted).
In
conducting our review, we consider all the evidence, not just the evidence that
supports the verdict. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005) (citation
omitted).
“We review the evidence in the light most favorable to the State,
including legitimate inferences and presumptions that may fairly and reasonably
be deduced from the evidence in the record.” State v. Webb, 648 N.W.2d 72, 76
(Iowa 2002).
At trial, the State must prove every element of the crime charged beyond a
reasonable doubt. See id. The State‟s evidence “must raise a fair inference of
guilt and do more than create speculation, suspicion, or conjecture.” State v.
Hamilton, 309 N.W.2d 471, 479 (Iowa 1981). In weighing the evidence, direct
and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)(p).
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At issue here is the element “intent to defraud or injure” of forgery.
Because specific intent is seldom capable of direct proof, it may be shown by
circumstantial evidence and the reasonable inferences drawn from that evidence.
State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted); see also
State v. Acevedo, 705 N.W.2d 1, 5 (Iowa 2005). Intent to defraud may properly
be inferred from circumstances, words, and actions shown in evidence. State v.
Mathias, 216 N.W.2d 319, 321 (Iowa 1974); see also People v. Castellanos, 2
Cal. Rptr. 3d 544, 547 (Cal. Ct. App. 2003) (defendant‟s possession of a false
legal permanent resident card sufficient to evidence an intent to defraud); People
v. Miralda, 981 P.2d 676, 679-80 (Colo. Ct. App. 1999) (defendant‟s possession
of a forged INS card not sufficient to evidence an intent to defraud where the
prosecution presented no proof that the defendant was not a legal resident and
where the card contained accurate information respecting the defendant‟s
identity); State v. Escobedo, 404 So.2d 760, 764-65 (Fla. Dist. Ct. App. 1981)
(holding intent to defraud could be inferred from creating false birth certificates);
State v. Hogshooter, 640 S.W.2d 202, 204 (Mo. Ct. App. 1982) (holding an intent
to defraud could be inferred from the act of forgery or transferring the forged
instrument); State v. Esquivel, 863 P.2d 113 (Wash. Ct. App. 1993) (holding
intent to defraud could be inferred from false instruments containing the
defendants‟ names, photographs, and signatures); c.f. State v. Lores, 512
N.W.2d 618, 621 (Minn. Ct. App. 1994) (where statute requires an intent to utter,
possession alone is insufficient).
Viewing the evidence in the light most favorable to the State, we find
sufficient evidence supports the defendant‟s conviction.
Here, the false
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document contained the defendant‟s name and signature, and the document did
not represent the defendant‟s proper employment status. As a matter of logical
probability, intent to defraud could be inferred from such facts and
circumstances. Indeed, the instrument‟s only value would be to falsely represent
the defendant‟s legal employment status. We therefore find sufficient evidence
supports the defendant‟s conviction.
B. Motion to Suppress.
The defendant next argues the district court erred in overruling her motion
to suppress.
She contends the search warrant must fail because it was
overbroad, lacked particularity, and omitted material facts and recklessly
disregarded the truth. The State argues the defendant failed to preserve her
particularity argument, but acknowledges the other search warrant issues were
preserved for our review. We will bypass the State‟s error preservation concerns
and proceed to the merits. State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
We review de novo constitutional claims arising from a motion to
suppress. State v. Feregrino, 756 N.W.2d 700, 703 (Iowa 2008). “[O]ur review
„is de novo in light of the totality of the circumstances.‟” State v. McConnelee,
690 N.W.2d 27, 30 (Iowa 2004) (citation omitted).
“[W]e assess the entire
record, including evidence presented during the suppression hearing . . . .” State
v. Lovig, 675 N.W.2d 557, 562 (Iowa 2004). We are not bound by the district
court‟s factual determinations, but give deference to the court‟s credibility
findings. Id.
The Fourth Amendment to the Constitution of the United States provides
that no warrants shall be issued unless “supported by Oath or affirmation, and
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particularly describing the place to be searched and the persons or things to be
seized.” U.S. Const. Amend IV. “A major objective of this amendment is to
prohibit the use of a „general‟ warrant and avoid „a general, exploratory
rummaging in a person‟s belongings.‟” State v. Malloy, 409 N.W.2d 707, 709
(Iowa Ct. App. 1987) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467,
91 S. Ct. 2022, 2038-39, 20 L. Ed. 2d 564, 583 (1971)). “[E]vidence obtained in
violation of the fourth amendment may not be used in criminal proceedings
against the victim of an illegal search and seizure.” State v. Mehner, 480 N.W.2d
872, 875 (Iowa 1992).
1. Breadth and Particularity.
The defendant argues the warrant did not satisfy the Fourth Amendment‟s
requirement of “particularly describing the . . . things to be seized,” and that
“[b]ecause of the overly broad, non-specific nature of the [warrant] application,
the affiant was unable to demonstrate a nexus between the things to be seized
and the commission of a crime.” We reject both contentions.
Probable cause to issue a search warrant exists when “a reasonable
person would believe a crime was committed on the premises or that evidence of
a crime could be located there.” State v. Simpson, 528 N.W.2d 627, 634 (Iowa
1995).
The issuing judge must make “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him [or her],
. . . there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332,
76 L. Ed. 2d 527, 548 (1983). The warrant application must demonstrate an
adequate nexus between the criminal activity, the place to be searched, and the
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items to be seized.
See State v. Gogg, 561 N.W.2d 360, 365 (Iowa 1997)
(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‟” (citation omitted)).
In addition, a search warrant must be reasonably specific. See State v.
Todd, 468 N.W.2d 462, 467 (Iowa 1991). A warrant will not be upheld if the
description of items to be seized is “so broad and vague it necessarily clothed the
warrant-executing officers with interdicted discretion regarding items to be
seized.” Munz v. State, 382 N.W.2d 693, 699 (Iowa Ct. App. 1985). However, a
description is “sufficiently particular” if it allows law enforcement
reasonably to ascertain and identify the things to be seized. When
a warrant affiant has probable cause but cannot give an exact
description of the materials to be seized, a warrant will generally be
upheld if the description is as specific as the circumstances and the
nature of the activity under investigation permit.
Todd, 468 N.W.2d at 467 (citations omitted).
The warrant application in this case set forth Detective Scanlan‟s personal
knowledge of the investigation, including that “Juan” returned to the residence to
be searched after four controlled drug buys. It also contained information that
the residence was owned by Juan Roman.
Finally, the application set forth
Detective Scanlan‟s knowledge, based on his training and experience as a police
officer, regarding the type of items relating to drug trafficking often found in the
residence, including drugs, and paper and electronic records and information.
When this information is viewed in a common-sense manner, including all
reasonable inferences that support a finding of probable cause, Gogg, 561
N.W.2d at 364, it provides an adequate nexus between the alleged criminal
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activity of drug trafficking, the residence and vehicles, and the description of
items to be seized. Moreover, the descriptions of items were as specific as
circumstances permitted and allowed officers to reasonably ascertain and identify
the things to be seized.
Probable cause is not lacking, as the defendant suggests, merely because
many of the items described in the warrant, including “[b]ooks, records, . . . and
other items,” items related to drug trafficking, and various forms of paper and
electronic information, are commonly found in personal residences.
The
common and unremarkable nature of the items to be seized can defeat probable
cause under certain circumstances, such as when a warrant application attempts
to establish a causal nexus through information a defendant‟s home contains
property similar to that involved in a crime. See Gogg, 561 N.W.2d at 365. In
such cases, where the items are of the kind commonly found in personal
residences, and there is no evidence the items in the defendant‟s possession are
unusual or unique, there is no reason to believe those items are the same as
those involved in the particular crime. Id. at 366. Thus, the nexus between the
criminal activity, the place to be searched, and items to be seized is lacking.
Here, in contrast, evidence of Juan‟s drug trafficking, combined with the
detective‟s knowledge that the items sought could provide evidence regarding
Juan‟s drug trafficking, provides an adequate causal nexus.
Additionally, we conclude particularity is not lacking, as the defendant
suggests, because the defendant‟s purse was not enumerated as an item to be
searched and because the defendant did not consent to the search.
“[I]f a
warrant sufficiently describes the premises to be searched, this will justify a
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search of those personal effects found therein and belonging to the person
occupying the premises if those effects might contain the described items.” See
Munz, 382 N.W.2d at 699 (quoting 2 W. LaFave, Search and Seizure § 4.10(b) at
154 (1978)); see also U.S. v. Ross, 456 U.S. 798, 821-22, 102 S. Ct. 2157, 217071, 72 L. Ed. 2d 572 (1982) (holding a warrant authorizing the police to search
specified premises ordinarily encompasses the opening and inspection of any
containers on the premises where the object of the warrant may be hidden). This
general rule is limited by a second rule, which prohibits the police from searching
visitors who merely happen to be at the searched premises during the execution
of the warrant. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L.
Ed. 2d 238 (1979). However, as noted by LaFave, “[the] limitation on the police
authority to execute the warrant by searching into personal effects [of visitors]
comes into play only if the police „knew or should have known‟ that the effects
belonged to a „mere visitor.‟” 2 W. LaFave, Search and Seizure § 4.10(b) at 746
(2004) (emphasis added).
Here, there was no evidence that the defendant was a mere visitor, or
even that the officers knew the purse belonged to the defendant. Additionally,
the district court found that that the officers had no reason to believe that the
residence was divided into discrete areas where one separate family resided to
the exclusion of another family, and it found that Juan had access to the
basement as well as the rest of the house. Viewing the entire record, including
evidence presented during the suppression hearing, the district court‟s findings
are supported by substantial evidence. Thus, the defendant‟s purse was an item
that could be searched, as it was in the residence to be searched where the
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defendant lived and could have reasonably concealed items of the kind portrayed
in the warrant. For all of these reasons, we therefore conclude the warrant was
not overbroad or lacking particularity.
2. Omissions and Reckless Disregard.
The defendant next argues the warrant omitted material facts and
recklessly disregarded the truth and the district court therefore erred in denying
her motion to suppress. Specifically, the defendant asserts the officers were on
notice that more than one family occupied the residence and the officers‟
misidentification of Santiago as “Juan,” the subject of the investigation, the
officers acted with reckless disregard for the truth. We disagree.
“To impeach a search warrant, . . . [t]here must be allegations of
deliberate falsehood or of reckless disregard for the truth . . . . ”
State v.
Ripperger, 514 N.W.2d 740, 745 (Iowa Ct. App. 1994). The defendant “bear[s]
the burden of establishing an intentional or reckless misrepresentation.” Gogg,
561 N.W.2d at 364. The affiant‟s conduct “must be more than mere negligence
or mistake.” State v. McPhillips, 580 N.W.2d 748, 751 (Iowa 1998). If an affiant
made a false statement in a search warrant “with reckless disregard for the truth,
the Fourth Amendment requires the statement be deleted from the affidavit and
the remaining contents be scrutinized to determine whether probable cause
appears.” State v. Groff, 323 N.W.2d 204, 206-07 (Iowa 1982) (citing Franks v.
Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672
(1978)). “A „false‟ affidavit statement is one which misleads the magistrate into
believing the existence of certain facts which enter into his thought process in
evaluating probable cause.” Id. at 210. Reckless disregard can be proven either
15
(1) “by showing directly that the affiant had serious doubts as to the veracity of an
informant‟s statement” or (2) “from circumstances evincing „obvious reasons to
doubt the veracity‟ of the allegations.” State v. Niehaus, 452 N.W.2d 184, 187
(Iowa 1990) (citations omitted).
An omission of a material fact constitutes a
misrepresentation only when the omitted facts cast doubt on the existence of
probable cause. See id.
Here, the defendant failed to establish an intentional or reckless
misrepresentation or the omission of a material fact by the officers. We agree
with the district court‟s conclusion that this was a case of mistaken identity. After
Santiago was seen leaving the residence, the officers reasonably believed he
was “Juan.” We further agree with the assessment of district court:
After the execution of the . . . warrant both [Juan and Santiago]
were taken into custody. Juan . . . is married to Ann Barbosa.
[Santiago] is married to Ann‟s sister, Maria. . . . The court is
sensitive to the need to avoid stereotypes in cases like this, but the
booking photos of both men reveal at least some resemblance.
Juan is 35 years old. [Santiago] is 37. Both gentlemen are
Hispanic. Nevertheless, . . . the booking information shows that
[Santiago] is 5‟10” tall and 220 lbs. with light brown skin and Juan is
5‟5” and 140-150 lbs. with medium brown skin.
The officers did not have access to this booking information
at the time of the search warrant application. They were acting on
the information obtained through surveillance. They made an error
in identification. Perhaps their error was the product of negligence
or mistake but the police did not knowingly, intentionally or
recklessly mislead the magistrate.
(Internal citations omitted.) Furthermore, we conclude the alleged omitted facts
would not have cast doubt on the existence of probable cause, given there was
no evidence that the defendant and her husband lived in a separate living area
and the first three controlled drug buys where “Juan” returned to the residence
gave rise to sufficient probable cause to believe a crime was being committed at
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the residence.
Consequently, we conclude the district court did not err in
overruling the defendant‟s motion to suppress.
C. Ineffective Assistance of Counsel.
The defendant alternatively argues her trial counsel was ineffective should
we find she failed to preserve error on either of her claims.
Based on our
resolution of the issues on the merits, we need not and do not address her
ineffective assistance of counsel claims.
III. Conclusion.
Because we conclude intent to defraud could be inferred from the
counterfeited document containing the defendant‟s name, signature, and
improper employment status, we find the evidence was sufficient to support her
conviction for forgery. Because we further conclude the search warrant was not
overbroad, did not lack particularity, and did not omit material facts and
recklessly disregarded the truth, we conclude the district court did not err in
overruling her motion to suppress. Based on our resolution of the issues on the
merits, we need not and do not address her ineffective assistance of counsel
claims.
AFFIRMED.
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