State of Iowa v. Earnest Jones Hunt, Jr. ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1595
Filed November 3, 2021
STATE OF IOWA,
Plaintiff-Appellant,
vs.
EARNEST JONES HUNT, JR.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
The State challenges an adverse ruling suppressing evidence obtained
during a pat down for weapons. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellant.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ.
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BADDING, Judge.
Does an officer have to know the specific type of controlled substance he
feels inside a plastic bag in a suspect’s sweatshirt pocket—whether it is heroin,
crack cocaine, or powder cocaine—in order to come within the plain-feel exception
to the warrant requirement? We think not and accordingly reverse the district
court’s ruling granting Earnest Hunt Jr.’s motion to suppress evidence.
I. Background Facts and Proceedings
In the early afternoon of Christmas Day 2019, Dubuque police lost sight of
Hunt after observing him enter the passenger seat of a black Chevy Impala. They
considered him a “person of interest” in a shooting that had occurred the day
before. A half hour later, Investigator Chad Leitzen was on patrol in an unmarked
car when he spotted the Chevy driving out of an alley. While following the vehicle,
Leitzen noticed the driver turn without signaling. He initiated a traffic stop after
notifying dispatch of his location.
Once the vehicle pulled over, Leitzen approached the passenger side with
his gun drawn. He recognized Hunt in the front passenger seat. Because Hunt
was a possible suspect of a gun-related crime, Leitzen “ordered him to keep his
hands up on the dash” in case he still had a weapon on him. The investigator had
to repeat that order several times because Hunt kept bringing his hands down to
rub them against his pants pockets. Hunt appeared “extremely nervous” and
repeatedly questioned whether he was under arrest. The investigator informed
him that he was only being detained as part of an ongoing investigation.
About a minute passed before four other officers arrived on the scene. At
that time, Investigator Leitzen asked Hunt to step out of the vehicle. Fearing Hunt
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might be armed because of his nervous behavior, Leitzen handcuffed him and
asked for permission to search his pockets. When Hunt said no, Leitzen
conducted a limited search of his outer clothing for weapons.
During the pat down, Leitzen felt a plastic bag containing “small plastic or
small hardballs, packaged balls” inside Hunt’s right sweatshirt pocket. He could
hear the “crunch of the plastic bag” and feel the “small individual hard packages
inside.” As an experienced investigator with the Dubuque Drug Task Force,
Leitzen “immediately knew that it was packaged drugs for sale inside of a plastic
bag” because the texture matched “how cocaine, crack cocaine, or heroin are
packaged for sale in Dubuque.” When he removed the bag from Hunt’s pocket,
he found ten small plastic bags of what he believed to be crack cocaine.1 Based
on that discovery, Hunt was arrested for possession of crack cocaine with intent to
deliver. See Iowa Code § 124.401(1)(c)(3) (2019).
After advising Hunt of his Miranda rights, Investigator Leitzen asked him if
the small plastic bags contained powder or crack cocaine. The investigator had
started questioning his initial inclination after jiggling the objects inside the bags
and feeling them more carefully. He noticed one of the bags “had a square or a
rectangular pill” inside it, which was uncommon in bags of crack cocaine. Hunt
1 On cross-examination at the suppression hearing, Investigator Leitzen admitted,
“I did not know what type of drugs they were, I just knew they were packed
drugs.” He believed the substance could be heroin or cocaine. Even in the latter
category, Leitzen did not know whether the substance was crack or powder
cocaine. He eventually concluded the substance was crack cocaine based on his
knowledge that “[c]rack cocaine dealers typically carry multiple baggies of crack
cocaine on their person at any given time so they can sell the crack cocaine to
users when the users place an order with them.”
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replied it was powder cocaine that he had just bought from a friend for his personal
use. Lab testing later confirmed the bags contained crack cocaine.
The State charged Hunt with possession with intent to deliver “40 grams or
less of a mixture or substance containing a detectable amount of cocaine base
‘crack.’” Hunt moved to suppress that evidence, contending the search of the bag
in his pocket violated the Fourth Amendment of the Federal Constitution and article
I, section 8 of the Iowa Constitution. He did not challenge the stop or the weapons
search. Rather, he alleged the investigator could not remove the bag from his
pocket after determining it was not a weapon because there was no probable
cause to support the further search and no exceptions to the warrant requirement
applied. Specifically, Hunt argued the plain-feel exception did not justify the
search, asserting the evidence showed it was not immediately apparent to the
investigator that the bag in his pocket contained contraband.
The district court agreed, finding the State failed to prove the investigator
had probable cause to further search Hunt’s pocket for illegal drugs. In granting
the motion to suppress, the court held the removal of the bag from Hunt’s pocket
exceeded the plain-feel doctrine under Minnesota v. Dickerson, 508 U.S. 366(1993). The court reasoned: “The item in [Hunt’s] pocket could have been
anything, and Leitzen’s testimony that he knew it was drugs lacked sufficient
explanation as to how and why he knew that to be true.” Continuing that rationale,
the court added:
Leitzen did not know exactly what was in the bags he thought
he felt. As evidenced by his testimony and the body camera
footage of officers on the scene, Leitzen was not sure of the
nature of the substance in the bags even after he had
removed them and was examining them by feel and sight.
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Given what it considered to be the lack of specificity in the investigator’s testimony,
the court decided the “immediately apparent” element of the plain-feel exception
had not been satisfied.
After its motion to reconsider was denied, the State sought discretionary
review. Our supreme court granted the State’s request and stayed the
proceedings pending resolution of this appeal. See Iowa Code § 814.5(2)(b)
(2021).
II. Scope and Standard of Review
Because Hunt’s motion to suppress raised both state and federal
constitutional issues, we review the State’s challenge to the suppression ruling de
novo. See State v. Baker, 925 N.W.2d 602, 609 (Iowa 2019). In doing so, we
independently evaluate the totality of the circumstances as shown by the
record. Id. We defer to the district court’s fact findings, especially on the credibility
of witnesses, but they do not dictate our outcome. State v. Pals, 805 N.W.2d 767,
771 (Iowa 2011).
III. Analysis
The State contends the district court erred in determining the search of
Hunt’s pocket did not fall under the plain-feel exception to the warrant
requirement. According to the State, the court wrongly imposed a higher standard
than probable cause by finding the investigator had to know “exactly what was in
the bags” to lawfully seize them. In its view, the court placed undue weight on the
fact that the investigator did not know whether the drugs in Hunt’s pocket were
heroin, powder cocaine, or crack cocaine. Even without that knowledge, the State
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asserts probable cause was established once the investigator recognized the bags
were “packaged drugs for sale.” We agree.
Both the Fourth Amendment and article I, section 8 prohibit law enforcement
officers from conducting unreasonable searches and seizures.2 Tyler, 830 N.W.2d
at 291. Warrantless searches are per se unreasonable unless the State can
establish by a preponderance of the evidence that the search falls within a
recognized exception to the warrant requirement. State v. Naujoks, 637 N.W.2d
101, 107 (Iowa 2001). The exception relied on by the State is the plain-feel
exception, which was adopted by the United States Supreme Court in Dickerson
as follows:
If a police officer lawfully pats down a suspect’s outer clothing
and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s
privacy beyond that already authorized by the officer’s search for
weapons; if the object is contraband, its warrantless seizure would
be justified by the same practical considerations that inhere in the
plain-view context.
508 U.S. at 372 (emphasis added). As a limitation, the nature of the object must
be identifiable without “squeezing, sliding, and otherwise manipulating the
contents of the defendant’s pocket.” State v. Harriman, 737 N.W.2d 318, 320
(Iowa Ct. App. 2007) (quoting Dickerson, 508 U.S. at 378). And the State must
still prove “the officer ha[d] probable cause to believe that the item [was]
contraband before seizing it.” Id.2 Because the State does not argue we should apply a different standard under
the state constitution than its federal counterpart, “we will apply the general
standards as outlined by the United States Supreme Court for addressing [its]
search and seizure challenge under the Iowa Constitution.” State v. Tyler, 830
N.W.2d 288, 291 (Iowa 2013).
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After conducting a de novo review of the record, we find the district court
erred in concluding the plain-feel exception did not apply. As the State points out,
nothing in the record shows the investigator manipulated the contents of the bag
in Hunt’s pocket before determining it was likely contraband. To the contrary, the
investigator testified he “immediately knew that it was packaged drugs for sale”
inside of Hunt’s pocket after hearing “the crunch of the plastic bag” and feeling “a
ton” of small, individual packages while patting down his outer clothing.
While the district court believed those observations “lacked sufficient
explanation as to how and why [the investigator] knew that to be true,” we have
routinely credited similar testimony in our cases upholding the seizure of evidence
under the plain-feel doctrine. See, e.g., State v. Sherrod, No. 08-1136, 2009 WL
2170212, at *3 (Iowa Ct. App. July 22, 2009) (relying on testimony that officer
“absolutely” believed the object in defendant’s beltline was cash in finding that
evidence admissible in a robbery case); Harriman, 737 N.W.2d at 320 (concluding
it was immediately apparent the defendant had narcotics in his pocket from
officer’s testimony that, based on his experience, the object he felt was narcotics);
State v. Cain, No. 04-0167, 2005 WL 598791, at *4 (Iowa Ct. App. Mar. 16, 2005)
(finding officer credible in his testimony that he believed the pipe in defendant’s
pocket was drug paraphernalia). That deference is appropriate when, as here, the
investigating officer has expertise in drug investigations and can distinguish the
different packaging and textures of controlled substances. See State v. Carey,
No. 12-0230, 2014 WL 3928873, at *6 (Iowa Ct. App. Aug. 13, 2014); see also
Texas v. Brown, 460 U.S. 730, 742 (1983) (“[T]he evidence thus collected must be
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seen and weighed not in terms of library analysis by scholars, but as understood
by those versed in the field of law enforcement.”).
At the suppression hearing, Investigator Leitzen explained that he could
identify the contents of Hunt’s pocket as contraband because it was common for
drug dealers in the area to carry small packages of drugs inside a larger plastic
bag. He described that method as being “almost invariably how cocaine, crack
cocaine, or heroin are packaged for sale in Dubuque.” With seven years of
experience in handling drug cases, Leitzen determined Hunt had at least one of
those controlled substances in his pocket. That belief was reasonable given his
knowledge of the drugs commonly sold in the area and should have been
considered by the district court in deciding whether the incriminating nature of the
bag was immediately apparent to the investigator.
Instead, the court determined the lack of specificity in Leitzen’s testimony
showed he was unsure the bag contained contraband. But the investigator
acknowledged that “[he] did not know what type of drugs they were, [he] just knew
they were packed drugs.” We agree with the State that he did not need to pinpoint
the specific type of drug to rely on the plain-feel exception. Immediately apparent
is not synonymous with absolute certainty. Brown, 460 U.S. at 741. The test under
Dickerson is simply whether the officer had probable cause to believe the item
seized was contraband. 508 U.S. at 376. The question then boils down to what
constitutes probable cause. Probable cause is a “flexible, common-sense
standard,” requiring only “that the facts available to the officer would ‘warrant a
man of reasonable caution in the belief’ that certain items may be
contraband.” State v. Banks, No. 11-0429, 2012 WL 652444, at *4 (Iowa Ct. App.
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Feb. 29, 2012) (quoting Brown, 460 U.S. at 742). Given that standard, it was error
for the district court to conclude the investigator lacked probable cause just
because “[he] did not know exactly what was in the bags he thought he
felt.” Accord Brown, 460 U.S. at 742 (finding sufficient probable cause when an
officer believed an opaque balloon in a suspect’s hand contained an illicit
substance based on knowledge that such balloons were commonly used to
package narcotics); Lester v. State, 651 S.E.2d 766, 768 (Ga. Ct. App. 2007)
(holding plain-feel exception applied even though the officer “could not specifically
identify the substance during the pat-down” but because of his experience knew it
“was a narcotic packaged in the customary way for drug transport”).
Although Hunt recognizes that absolute certainty is not the standard for
probable cause, he claims the incriminating nature of an object cannot be
immediately apparent when an officer is torn between multiple-choice options. He
borrows that language from another one of our unpublished opinions, State v.
Ericson, No. 14-1746, 2016 WL 719178, at *2 (Iowa Ct. App. Feb. 24, 2016). But
these facts are different. In Ericson, the officer felt a lump in the defendant’s pocket
that he believed could be “either drugs or maybe a component of a weapon, like a
bullet or something like that.” Id. at *2. Because the officer did not know whether
the object was a weapon or contraband before removing it from the defendant’s
pocket, we held the search was not justified under the plain-feel exception. Id.Here, Investigator Leitzen testified he was certain the bag he felt in Hunt’s
pocket contained illegal drugs. His inability to determine whether the drug was
heroin, powder cocaine, or crack cocaine did not discredit that belief. Because the
record contains no evidence suggesting the investigator manipulated the bag while
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the bag was in Hunt’s pocket,3 the seizure of the crack cocaine fell within the scope
of the plain-feel exception. Thus, we reverse the grant of Hunt’s motion to
suppress and remand for further proceedings.
REVERSED AND REMANDED.
3 The district court improperly focused on defense counsel’s line of questioning
during cross-examination concerning Investigator Leitzen’s actions after
identifying the items as contraband and removing them from Hunt’s pocket. It is
irrelevant whether the investigator manipulated the bags at that later time because
the plain-feel exception kicks in only if the incriminating nature is discovered during
a lawful pat down. Dickerson, 508 U.S. at 376–77.