State of Iowa v. Nortavis Nortez Sallis ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1327
Filed March 6, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NORTAVIS NORTEZ SALLIS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple,
Judge.
Defendant appeals his convictions and sentence for possession of cocaine,
possession of a firearm as a felon, and possession of marijuana. AFFIRMED.
F. David Eastman of Eastman Law Office, Clear Lake, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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VOGEL, Chief Judge.
Nortavis Nortez Sallis appeals his convictions and sentence for possessing
cocaine as a habitual offender, in violation of Iowa Code section 124.401(5) (2014);
possessing a firearm as a felon, in violation of Iowa Code section 724.26; and
possessing marijuana as a habitual offender, in violation of Iowa Code section
124.401(5). He argues the district court erred in denying his motion to suppress
and abused its discretion when it admitted a photograph of a digital scale with an
unknown white powder on it. Because the search warrant was supported by
probable cause and the photograph’s probative value outweighed the danger of
unfair prejudice, we find the motion to suppress was properly denied and the
district court did not abuse its discretion in admitting the evidence.
I. Background Facts and Proceedings
On October 22, 2014, Investigator Joseph Zubak applied for a search
warrant for Sallis’s residence. The application stated Investigator Michael Girsch
received a report from a “concerned citizen,” who saw “constant traffic coming and
going from” the residence, and stated the visitors would only stay for a short period
of time. Also, the application indicated Investigator Girsch conducted his own
surveillance following the report and observed a lot of traffic coming and going at
the residence, which he indicated was the “type of activity [that] is consistent with
drug trafficking.” Finally, the application stated the “concerned citizen” identified
Sallis and listed Sallis’s criminal history.
Finding probable cause, a judge granted the search warrant, which was
then executed on October 23. During the search, law enforcement found cocaine,
marijuana, a handgun, and related paraphernalia, including a digital scale covered
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in a white, powdery substance. Sallis was charged with possession of cocaine,
possession of a firearm as a felon, and possession of marijuana.
On March 12, 2015, Sallis filed a motion to suppress the evidence found at
his residence because he claimed the search-warrant application failed to
establish probable cause, asserting the evidence was stale. A hearing on the
motion was held on May 11, and the district court denied the motion on October
30. In the denial ruling, the district court found “[t]he information contained in the
application for the search warrant would cause a person of reasonable prudence
to believe that evidence of the illegal possession and delivery of controlled
substances could be located on or about October 22, 2014.” Sallis also filed a
motion in limine requesting various evidence to be deemed inadmissible, including
“[a]ny reference to suspected but untested drugs as potentially misleading and
prejudicial.” The district court denied the motion and determined the photo of a
scale with an untested white powder was admissible.
The case proceeded to trial, where Sallis renewed his motion to suppress,
which was again denied. The jury returned guilty verdicts on all counts. After a
trial to the court on the issue of sentencing enhancements, Sallis was sentenced
on all convictions as a habitual offender, under Iowa Code sections 902.8 and
902.9, to a term of incarceration of fifteen years with a three-year minimum for
each conviction; the sentences to run concurrently to each other. He appeals.
II. Standard of Review
Regarding whether probable cause supported the search warrant, our
review is de novo. State v. Randle, 555 N.W.2d 666, 668 (Iowa 1996). “We do
not, however, make an independent determination of probable cause; we merely
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decide whether the issuing judge had a substantial basis for concluding probable
cause existed.” State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). “In doing so,
the judge may rely on ‘reasonable, common sense inferences’ from the information
presented.” Id. (quoting State v. Green, 540 N.W.2d 649, 655 (Iowa 1995)).
As to the admission of the photo of the scale, “[w]e review evidentiary
rulings for abuse of discretion.” State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013).
“We find an abuse of discretion only when the party claiming such shows that the
court exercised the discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).
III. Motion to Suppress
Sallis argues the district court should have granted his motion to suppress
because the search-warrant application lacked probable cause. Specifically, he
asserts the information in the application was stale and the application failed to
establish the “concerned citizen” was credible. A search warrant must be
supported by probable cause, and the test for probable cause is “whether 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)).
A. Timeliness of the Information
Sallis first argues the information in the application was either undated or
too remote, and therefore probable cause was not established. The State argues
the ongoing nature of the criminal conduct justified the thirteen-month passage of
time, measured from the date of the most remote event on the application.
“Whether information is stale depends on the circumstances of each case.”
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Randle, 555 N.W.2d at 670. When determining whether information is stale, the
court looks at the following circumstances:
(1) [T]he character of the crime (whether an isolated event or an
ongoing activity), (2) the character of the criminal (nomadic or
stable), (3) the nature of the thing to be seized (perishable, easily
destroyed, not affixed and easily removable, or of enduring utility to
the holder), and (4) the place to be searched (mere criminal forum of
convenience or secure operational base).
Gogg, 561 N.W.2d at 367 (internal citations omitted).
The timeliness of information is determined by “the most remote date within
the time period mentioned in the affidavit.” Id. “If there has been a significant
passage of time between the alleged criminal conduct and the application for a
warrant, the applicant must show that the offense is continuous in nature.” Randle,
555 N.W.2d at 670. Therefore, when information demonstrating ongoing drug-
related activities is included in an application, “the passage of time is less
problematic because it is more likely that these activities will continue for some
time into the future.” Gogg, 561 N.W.2d at 367.
The most remote date in the application is September 2013, which is
thirteen months before the execution of the warrant. However, as Investigator
Zubak indicated in his fourteen-page application, there was evidence to show
Sallis’s accomplice acquired drugs and Sallis would distribute the drugs out of his
home in an ongoing drug-distribution scheme. Therefore, due to the ongoing
character of the crime, the passage of time is less problematic than Sallis asserts.
In addition, Sallis claims the other circumstances cannot be met due to the lack of
dated information in the application. However, the failure to specify exact times
for the information is not fatal if other facts in the application can show timeliness.
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See id. Based on the information in the application, including the information on
Sallis’s accomplice and the traffic at Sallis’s residence that was consistent with
drug dealing, we find the ongoing illegal activity was “adequately portrayed” to the
judge; thus, the judge could have reasonably found probable cause existed.
Randle, 555 N.W.2d at 670.
B. Credibility of the Concerned Citizen
Next, Sallis briefly argues the concerned citizen “was acting as an informant
and there is no evidence with regard to the credibility of this person.” The State
asserts the citizen’s information is “presumptively reliable” and Investigator Girsch
appropriately corroborated the information. “A citizen informant is ordinarily
defined as a person who is a witness to or a victim of a crime.” State v. Niehaus,
452 N.W.2d 184, 189 (Iowa 1990). Information from a citizen informant is typically
presumed reliable. State v. Post, 286 N.W.2d 195, 200 (Iowa 1979). “The
reliability of a citizen informant may be shown ‘by the very nature of the
circumstances under which the incriminating information became known.’” Id.(quoting State v. Drake, 224 N.W.2d 476, 478 (Iowa 1974)). Here, the concerned
citizen reported “constant traffic” was going to and from Sallis’s residence at
various times of the day. Investigator Girsch then corroborated the information
“[s]hortly after” receiving the citizen’s report and determined such activity was
consistent with drug trafficking. Therefore, based on the totality of the
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circumstances, the judge could reasonably have found the citizen’s information
was reliable.1
C. Probable Cause Existed
Since the information in the application was not stale and the citizen
informant was reliable, we find “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 Weir, 414 N.W.2d at 330).
Therefore, probable cause existed to support the grant of the search warrant, and
we find the motion to suppress was properly denied.
IV. Admission of Evidence
Sallis also claims the district court abused its discretion by admitting a
photograph of a digital scale with a white powder on it. He argues the substance
on the scale was never tested and confirmed to be a drug; therefore, admission of
the evidence “cause[d] the jurors to be more inclined to believe that this scale was
used for weighing drugs when in fact there is no proof to substantiate that that
white powder was a drug.” The State claims the district court properly concluded
any danger of unfair prejudice by the photograph did not outweigh its probative
value. The district court found the evidence to be admissible and stated “the fact
that it may have been some other substance goes to its weight, but not its
admissibility.”
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The warrant application includes two informants’ attachments, which indicate the
reliability of the informant and state the informant supplied information to law enforcement
in the past at least thirty to fifty times.
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Iowa Rule of Evidence 5.403 states “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” See also State v. Mitchell, 633 N.W.2d 295, 298–99 (Iowa 2001)
(noting the determination that the probative value of evidence is substantially
outweighed by the danger of unfair prejudice “overcomes the evidence’s prima
facie admissibility, and the evidence must be excluded”). Regarding the alleged
unfair prejudice, we agree with the district court that defense counsel was free to
argue the substance on the scale was unknown because law enforcement failed
to properly test it, and thus, the potential unfair prejudice did not substantially
outweigh the probative value. See Iowa R. Evid. 5.403. Therefore, we find the
district court did not abuse its discretion in admitting the evidence.
V. Conclusion
We conclude the district court properly denied Sallis’s motion to suppress
because probable cause was established in the search-warrant application. Also,
we conclude the district court did not abuse its discretion by admitting evidence of
a digital scale.
AFFIRMED.