State v. Ford ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1367
Filed December 20, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HENRY FORD,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Henry Ford appeals his convictions for possession with intent to deliver
(marijuana), second offense, and child endangerment. AFFIRMED.
Adam R. Junaid of Frerichs Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, Presiding Judge.
Henry Ford appeals his convictions for possession with intent to deliver
(marijuana), second offense, and child endangerment. He contends a search of a
vehicle exceeded the scope of a warrant.
I. Background Facts and Proceedings
An investigator with the Tri-County Drug Enforcement Task Force applied
for a warrant to search Ford’s home, garage, and three vehicles for various items
including “[m]arijuana or any other illegal narcotics” and “monies and other
proceeds deemed to have come from the sale of [m]arijuana or any other illegal
narcotics.” One of the vehicles was a 1957 Buick. A magistrate found probable
cause to issue the warrant based on facts contained in an addendum.
Law enforcement officers executed the warrant. They discovered
marijuana in the house, marijuana residue in the garage, and wads of cash totaling
$7112 in Ford’s pockets. They seized the three vehicles and towed them to an
impound lot.
The State charged Ford with (1) possession of a controlled substance
(marijuana) with intent to deliver within 1000 feet of a public park and (2) child
endangerment. See Iowa Code §§ 124.401(1)(d), 124.401A, and 726.6 (2015).
The first count was later amended to charge Ford as a second offender and a
habitual offender.
In time, the law enforcement investigator went to the impound lot with Ford
to retrieve a set of keys the district court had ordered returned to him. Before
turning over the keys to Ford, the investigator tried them on the trunk of the Buick.
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One of the keys unlocked the trunk. The officer noticed “a strong odor of marijuana
emitting from inside” and, on further investigation, discovered a brick of marijuana.
Ford moved to suppress this evidence. He asserted in part that the seizure
of the Buick exceeded the scope of the warrant, “which authorized only a search”
of the Buick. Following an evidentiary hearing, the district court denied the motion.
The court reasoned as follows:
Within the contents of the affidavit, the confidential informant
indicated that defendant may be using proceeds of drug trafficking to
purchase classic luxury vehicles. The affiant stated in the affidavit
that drug traffickers will sometimes conceal their proceeds by
purchasing such items. The search warrant permitted the officers to
seize the proceeds of drug trafficking. The face of the affidavit
permits a reasonable conclusion that the vehicle seized constituted
proceeds of drug trafficking.
Ford waived his right to a jury trial and agreed to be tried on the minutes of
testimony. The district court found him guilty on both counts and imposed
sentence. Ford appealed.
II. Analysis
Ford concedes the search warrant was supported by probable cause. See
U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
search, and the persons or things to be seized.”); Iowa Const. art. 1 § 8 (“[N]o
warrant shall issue but on probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the persons and things to be
seized.”). He also concedes the validity of attachments referenced in the warrant
application and the manner in which they accompanied the warrant. See United
States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976) (“[W]here the affidavit is
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incorporated into the warrant, it has been held that the warrant may properly be
construed with reference to the affidavit for purposes of sustaining the particularity
of the premises to be searched, provided that a) the affidavit accompanies the
warrant, and b) the warrant uses suitable words of reference which incorporate the
affidavit therein.”). He argues “the warrant did not authorize seizure of the 1957
Buick because the car was not particularly identified in the detailed list of items to
be seized.” In his view, the Buick “was listed on the warrant as a place to be
searched, but it was not listed as a thing to be seized,” and because “[t]he vehicle
in question was already precisely known and listed in the warrant application, along
with all evidence purportedly linking it to proceeds,” it was “not an appropriate item
to be included in a catch-all term such as proceeds.” His argument implicates the
constitutional particularity requirement.
“Both the Iowa and United States Constitutions, as well as the Iowa Code,
require that the warrant and affidavits particularly describe what is to be searched
and what is to be seized.” State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996); see
also Iowa Code § 808.3. “This is not to mean that a hypertechnical, perfectly
accurate description must be provided, rather, that the descriptions in the warrant
and affidavits be ‘sufficiently definite to enable the searcher to identify the persons,
places or things the magistrate has previously determined should be searched or
seized.’” State v. Thomas, 540 N.W.2d 658, 662 (Iowa 1995) (quoting People v.
Nieves, 330 N.E.2d 26, 31 (N.Y. 1975)).
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The warrant application described the property “subject to a search warrant”
as including “monies and other proceeds deemed to have come from the sale of
marijuana or any other illegal narcotics.” The warrant application stated the
property was “[l]ocated at or in” the Buick, identified by model year, state of
registration, plate number and VIN number. See State v. Leto, 305 N.W.2d 482,
488 (Iowa 1981) (finding warrant sufficiently particular where the vehicles to be
seized were identified by their VIN numbers). A confidential informant, determined
to have provided accurate information in the past, told a law enforcement officer
that the vehicle “was likely purchased with drug proceeds.” The officer confirmed
Ford’s ownership of the vehicle. His training and experience led him to opine that
individuals “involved in the distribution of narcotics will often utilize multiple
vehicles to conduct their illegal business.” He also opined that “vehicles are a
common asset purchased by drug traffickers who are in possession of large
amounts of money,” and vehicles “are also seen as an asset to ‘show off’ and may
boost one’s status among associates.” See State v. Godbersen, 493 N.W.2d 852,
856 (Iowa 1992) (“An officer’s expert opinion is an important factor to be
considered by the judge reviewing a warrant application.”). The final page of the
addendum sought the issuance of a warrant for several locations, including the
Buick, “in search of” several items including “marijuana or any other illegal
narcotics” and “monies and other proceeds deemed to have come from the sale of
marijuana or any other illegal narcotics.” The search warrant adopted this
language and identified the Buick as it was identified in the application.
The specificity of the vehicle description, the reference to seizure of drug
proceeds, and the attestations of a nexus between the vehicle and drug proceeds
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lead us to conclude the constitutional particularity requirement was satisfied. See
State v. Todd, 468 N.W.2d 462, 467 (Iowa 1991) (“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.”); see also
United States v. Nieman, 520 F.3d 834, 839 (8th Cir. 2008) (concluding the warrant
satisfied the particularity requirement because the property to be seized was
limited to items associated with drug trafficking and because the officer explained
how the seized items were relevant to drug trafficking). On our de novo review,
we affirm the district court’s denial of Ford’s suppression motion. In light of our
conclusion, we need not address Ford’s argument that “[a]ll evidence discovered
after the illegal seizure should have been suppressed as fruit of the poisonous
tree.”
AFFIRMED.