Amended September 30, 2015 State of Iowa v. Clifford Lynn McNeal

IN THE SUPREME COURT OF IOWA
No. 13–1229
Filed June 19, 2015
Amended September 30, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CLIFFORD LYNN MCNEAL,
Defendant-Appellant.
On further review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Wapello County, Daniel P.
Wilson (suppression) and Lucy J. Gamon (trial and sentencing), Judges.
The State seeks further review of a court of appeals decision
finding the district court erred in denying defendant’s motion to suppress
and reversing defendant’s conviction for theft in the first degree.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant
Attorney General, Lisa Moressi, County Attorney, and Andrew J. Ritland,
Assistant County Attorney, for appellee.
2
ZAGER, Justice.
In October 2011, police began to suspect Clifford McNeal received
stolen property from a burglary that occurred in Ottumwa, Iowa.
Thereafter, they received an anonymous tip from a concerned citizen
informing them that McNeal had moved a trailer from Ottumwa to a rural
area in Wapello County, Iowa. After police confirmed the location of the
trailer and that it belonged to a company McNeal owned, they obtained a
search warrant for the trailer. Pursuant to the search warrant, they
searched the trailer and discovered the stolen property. The State
subsequently charged McNeal with numerous offenses. McNeal filed a
motion to suppress, claiming the judge who issued the search warrant
failed to make a credibility determination as to each informant referenced
in the application for search warrant and asserting there was no
probable cause to support the search warrant. McNeal requested that
the district court suppress the evidence obtained from the trailer. The
district court denied the motion to suppress, and the case proceeded to a
jury trial. The jury found McNeal guilty of theft in the first degree. See
Iowa Code §§ 714.1(4), .2(1) (2011).
McNeal appealed, claiming the district court erred in denying his
motion to suppress. He asserted the search of the trailer violated his
rights under the Fourth Amendment to the United States Constitution
and article I, section 8 of the Iowa Constitution. McNeal also raised
numerous claims of ineffective assistance of trial counsel. We
transferred the case to the court of appeals. The court of appeals
concluded there was no probable cause to support the search warrant,
reversed the judgment of the district court, and remanded the case for a
new trial. The State applied for further review, which we granted.
3
For the reasons set forth below, we conclude the issuing judge had
a substantial basis for concluding there was probable cause to support
the search warrant and the district court properly denied McNeal’s
motion to suppress. Additionally, we conclude the record before us is
inadequate to reach the merits of McNeal’s ineffective-assistance-of-
counsel claims. We vacate the decision of the court of appeals and affirm
the judgment of the district court.
I. Background Facts and Proceedings.
On June 1, 2011, the Ottumwa Police Department received a
report from a construction-site manager that a construction site located
near the Ottumwa Regional Health Center in Ottumwa had been
burglarized. The construction-site manager reported that
sometime during the overnight hours . . . somebody had
broken into the new buildings and several of the tool trailers
. . . on the job site. Three of the trailers had . . . their locks
cut off of them. Two of the trailers had numerous tools
removed from within while the third trailer . . . didn’t have
anything missing from it.
A significant number of large, concrete-construction tools and equipment
were stolen from the site.
Officer Steven Harris was assigned to investigate the construction-
site burglary. During his investigation, two anonymous persons
informed him that John Wey and Mike Jones were “involved in the
burglary or at least had first-hand knowledge of the burglary.” Officer
Harris subsequently conducted a background check on both Wey and
Jones and discovered they each had numerous criminal convictions,
including several for theft and burglary. Although this information
suggested Wey and Jones might have been involved in the construction-
site burglary, Officer Harris was unable to confirm their involvement at
that time.
4
On July 2 at 3:40 a.m., Lisa Steck called the Ottumwa Police
Department in a panic. She reported that “a man had been trying to
break into her house and had just sped off eastbound out of her
driveway.” Lisa and her husband Ken Steck later reported that a laptop,
a truck, and numerous tools were stolen from the residence. Officer
Harris was also assigned to investigate the Steck burglary.
On July 6, Officer Harris spoke with the Stecks about the July 2
incident. Lisa described the man who had tried to break into the
residence as “over six feet tall, thick, and in his late thirties or older.”
Later that day, a farmer notified the Ottumwa Police Department he had
discovered a truck parked behind his barn in Wapello County. Several
officers went to investigate and confirmed the truck belonged to the
Stecks. The bed of the truck contained the tools stolen from the Steck
residence. Thereafter, officers returned the truck to the Stecks. While
the officers assisted the Stecks in unloading the stolen tools from the
truck, Ken observed two bags in the bed of the truck that were not his: “a
US Army bag” and “a blue reusable Walmart bag made of a heavy
material.”
On July 14, Officer Harris assisted another officer in executing a
search warrant at Wey’s residence. This search involved animal charges
unrelated to the construction-site and Steck burglaries. During the
search, Officer Harris “observed a standard issue green US Army bag . . .
and a blue re-useable Walmart bag made of a heavy material.” These
bags were similar in appearance to the bags from the Stecks’ truck. That
same day, Officer Harris also confirmed Wey’s physical appearance was
consistent with Lisa’s description of the man who had burglarized the
Steck residence.
5
Police arrested Wey on the animal charges that same day. During
the booking process, Wey provided police with a personal cell phone
number. In an effort to link Wey to the Steck burglary, Officer Harris
obtained user information, call logs, and text logs associated with the cell
phone number. These records showed the cell phone was registered to
Wey’s wife, Lynn Wey. The records further showed Lynn’s cell phone
sent numerous phone calls and text messages to another cell phone
registered to Wey around 3:40 a.m. on July 2—the same time Lisa called
the Ottumwa Police Department to report the Steck burglary. Further, a
series of texts sent between the Weys’ phones between 3:44 and 3:50
a.m. on July 2 were a “rough summation of [outgoing police] radio traffic”
at that same time.
Based on this information, Officer Harris believed both Wey and
Lynn played a role in the Steck burglary. Officer Harris further believed
Wey’s involvement in the Steck burglary corroborated Wey’s purported
involvement in the construction-site burglary. Accordingly, Officer
Harris obtained call and text logs for Wey’s cell phone from May 31
through June 1—the time the construction-site burglary occurred.
These records revealed Wey’s cell phone sent and received numerous
calls and text messages during this period. Two numbers comprised a
large portion of the called or texted numbers; both of them were
registered to David Downen of Downen Construction. Officer Harris
further found that shortly after the construction-site burglary, Downen’s
cell phones received suspicious text messages from Wey stating that Wey
“had new ‘goodies’ and tools and wanted to know if [Downen] wanted
some.” Officer Harris also conducted a background check on Downen
and discovered he had numerous criminal convictions, including several
for theft and robbery.
6
Based on this information, Officer Harris set up a meeting with
Downen for September 14. At the meeting, Officer Harris presented
Downen with the information he had discovered through his
investigation. Downen admitted Jones and Wey had sold him stolen
tools and equipment in the past. He also informed Officer Harris that
“[Jones] and [Wey] often broke into buildings and stole tools and
equipment to sell.”
On September 20, police arrested Jones on a warrant for a
separate incident in which police caught Jones and Wey stealing a
concrete saw. Based on the information provided by Downen, Officer
Harris contacted the Wapello County Attorney and arranged to speak
with Jones about the construction-site burglary. Jones received a
cooperation agreement for speaking with Officer Harris.
On October 3, Officer Harris, along with another officer, met with
Jones. Jones informed them that he and Wey would frequently “break[]
into different buildings to steal property.” Jones admitted he and Wey
were responsible for the break-in at the construction site. He also stated
there were “personal identifiers on some of the equipment from the site
that contained the name ‘Brad.’ ” This was consistent with information
the foreman at the construction site had provided Officer Harris. Jones
also stated that he and Wey “took the majority of the load of stolen
property from the . . . construction site . . . to Cliff McNeal where
[McNeal] bought the stolen property for a fraction of what the property
was actually worth.” Jones also told the officers he and Wey “would
often break into places and sell the stolen property to [McNeal].” Jones
had “worked in construction for a long time and he knew construction
equipment, so that is what he usually stole.”
7
According to Jones, “[McNeal] knew the property was stolen
because [Wey] and he often told [McNeal] where they stole the property
from.” Jones and Wey “usually me[t] . . . McNeal at his house . . . just
south of the intersection of Finley and Moore Streets” in Ottumwa and
would then “drive to a second location on Chester St[reet] near the
intersection of Chester and Milner Streets.” They would then “off-load
large loads of stolen property into a secure structure at the [second]
property.” Independent investigation later confirmed that McNeal owned
the property at the intersection of Finley and Moore Streets, and that
McNeal’s wife owned the property on Chester Street. Jones further
stated that “the [stolen] property was no longer at the residence on
Chester because [Wey], [McNeal], and [Jones] all knew that the police
were on to them,” and “[McNeal] told [him] that he had moved all of the
stolen property a short time before [Jones] was arrested” on September
20. Finally, Jones informed the officers that “[McNeal] did not sell the
equipment to other people, but rather kept the tools and equipment to
work on his properties or to use with his company.”
Also on October 3, Sergeant Jason Bell of the Ottumwa Police
Department informed Officer Harris that he had “received an anonymous
tip from a concerned citizen that . . . McNeal had moved an enclosed
trailer that was bluish-green in color out of Ottumwa and further out
into Wapello County.” The concerned citizen stated that “the trailer had
an attached ladder that allowed access to the roof.” The concerned
citizen further stated that “the trailer was on Copperhead R[oad] west of
US Highway 63,” such that “if you were traveling eastbound on
Copperhead, the trailer would be on the right side of the road within the
first major set of ‘S’ curves.”
8
On October 5, Officer Harris, along with another officer, went to
the location described by the concerned citizen. The officers “observed a
bluish-green enclosed trailer with a ladder going to the roof in the
geographic location that the concerned citizen had mentioned.” The
trailer was sitting in an open grass lot, “[t]here was no house near the
trailer, and the lot did not appear to have an address associated with it.”
Officer Harris returned to the location of the trailer on October 7
and acquired its license plate and VIN numbers. Upon further
investigation, Officer Harris discovered the trailer was registered to “R &
C Auto and Auto Repair,” located on Milner Street in Ottumwa. He then
confirmed that McNeal owned the property on Milner Street. He also
checked two of Wey’s recent arrest sheets and found that Wey had listed
his current employer as “ ‘R & C Auto’ ” or “ ‘R&C Auto/Cliff’s Constr.,’ ”
respectively. Officer Harris had previously contacted the Department of
Criminal Investigations Fusion Information Center and learned Wey had
not reported any income since the second quarter of 2010. Officer Harris
believed Wey’s employment relationship with McNeal, coupled with the
fact that Wey had not reported any income since the first half of 2010,
bolstered Jones’s credibility as to McNeal’s involvement in the criminal
activity. He also believed there was a “strong correlation” between Wey,
Jones, and McNeal. Finally, Officer Harris conducted a background
check on McNeal and discovered he had been convicted of theft in the
first degree in 2004.
Based on the above facts, Officer Harris believed there was
probable cause to search the trailer located off Copperhead Road.
Accordingly, on October 7, he filed an application for search warrant in
the district court for Wapello County. In the application, he attested to
the facts as described above and recounted the various pieces of
9
information provided by the above-mentioned informants. Additionally,
in explaining why he believed there was probable cause to support a
search warrant, Officer Harris noted, “[T]he information given by the
concerned citizen that the trailer was recently moved to its current
location is credible because . . . I w[as] able to corroborate the other
information such as the appearance, location, and ownership of the
trailer.” (Emphasis added.) Finally, Officer Harris stated:
From my training and experience in general criminal
investigations, I have learned that a person involved in
criminal activity most often keeps items used during the
commission of the crime, equipment, trophies and records at
their residence which includes outbuildings on their
property; in their vehicles or on their persons. . . .
From my training and experience I know that individuals
who possess, purchase, steal, or distribute stolen property
often times use their own vehicles or trailers to transport
and store such property.
The application for search warrant describes the place to be
searched as “[o]ne bluish-green colored enclosed trailer bearing Iowa
license plate 6996 AX located on the west side of the road between 11365
and 11346 Copperhead Road in Wapello County, Iowa 52501.” A list of
property stolen from the construction site was attached to the
application. The issuing judge granted the search warrant. On the
endorsement on the search warrant application, the judge noted the
application relied, in part, on information supplied by a confidential
informant. The judge deemed this information credible because it was
“later confirmed to be true by police, including [Officer Harris].”
That same day, Officer Harris, along with another officer, returned
to the location of the trailer to execute the search warrant. Upon arrival,
Officer Harris spoke with Donald Carnes, who owned the property where
the trailer was parked. Carnes informed Officer Harris that “McNeal had
10
called him and told him that he had problems with tickets on the trailer
in town, and . . . asked him if he could park [the] trailer out on his
property.” Carnes then called McNeal. Pursuant to the search warrant,
the other officer then cut a padlock off the door to the trailer and the
officers proceeded to search it.
Upon entering the trailer, the officers discovered “a large pile of
what appeared to be construction equipment.” Officer Harris observed
names affixed to some of the equipment, including the name of one of the
construction companies from the construction-site burglary. Shortly
thereafter, McNeal arrived at the scene. Officer Harris approached
McNeal and told him the trailer was being seized and towed “because of
the stolen property that was inside.” McNeal responded, “What do you
know about—I mean, what are you talking about?”
On April 9, 2012, the State filed a trial information charging
McNeal with one count of ongoing criminal conduct in violation of Iowa
Code section 706A.2(4), one count of theft in the first degree in violation
of Iowa Code sections 714.1(4) and 714.2(1), and one count of fraudulent
practice in the second degree in violation of Iowa Code sections 714.8(5)
and 714.10(1). The State later dismissed two of the three counts, leaving
a single count for theft in the first degree.
On May 23, McNeal filed a motion to suppress in which he
generally requested that the district court suppress all evidence obtained
from the trailer because the search warrant police used to search the
trailer was invalid. On July 18, McNeal filed an addendum to the motion
to suppress clarifying why he claimed the search of the trailer was
invalid. Among other things, he claimed the issuing judge failed to
comply with Iowa Code section 808.3 by failing to make a credibility
determination as to each informant referenced in the application for
11
search warrant. On July 26, after a hearing, the district court denied
McNeal’s motion to suppress. The district court concluded that, read as
a whole, the record established the reliability of the information provided
to officers by the various informants referenced in the application for
search warrant, and that there was probable cause to support the search
warrant.
On August 10, McNeal filed a motion to enlarge and amend ruling
on motion to suppress. Therein, he requested that the district court
reconsider its conclusions concerning reliability and probable cause. On
August 24, the district court denied McNeal’s motion to enlarge and
amend. The case proceeded to trial on April 16, 2013. On April 22, the
jury returned its verdict finding McNeal guilty of theft in the first degree.
McNeal appealed his conviction, claiming the district court erred in
denying his motion to suppress because the search warrant was based
on an anonymous tip from a concerned citizen whose credibility had not
been sufficiently established. McNeal asserted that without this
credibility determination, there was no probable cause to support the
search warrant. McNeal asserted the search of the trailer violated his
rights under the Fourth Amendment to the United States Constitution
and article I, section 8 of the Iowa Constitution. McNeal also raised
numerous claims of ineffective assistance of trial counsel. We
transferred the case to the court of appeals. The court of appeals
reversed the judgment of the district court and remanded the case for a
new trial. The court of appeals concluded the anonymous tip from the
concerned citizen lacked sufficient indicia of reliability and could not be
considered in determining whether there was probable cause to support
the search warrant. The court of appeals also concluded that absent the
12
anonymous tip, there was no probable cause to support the search
warrant.
The State applied for further review, which we granted.
II. Standards of Review.
“We review questions of a constitutional dimension de novo, based
on the totality of the circumstances.” State v. Johnson, 756 N.W.2d 682,
686 (Iowa 2008). However, we do not make an independent
determination of probable cause; rather, we determine “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 so doing,
we examine only the information actually presented to the judge. Id.
Ineffective-assistance-of-counsel claims are reviewed de novo. State v.
Clay, 824 N.W.2d 488, 494 (Iowa 2012). This is because such claims are
based on the Sixth Amendment to the United States Constitution. 1 Id.
III. Analysis.
A. Error Preservation. The State asserts McNeal failed to
preserve error on his Fourth Amendment claim. For purposes of this
appeal, we assume without deciding that error was preserved on this
claim because we find it is without merit. See State v. Taylor, 596
N.W.2d 55, 56 (Iowa 1999) (“We choose to pass [on defendant’s] serious
1In his brief, McNeal cites both the Fourth Amendment and article I, section 8 of
the Iowa Constitution in support of his claim that the district court failed to suppress
the evidence obtained from the search of the trailer. Similarly, McNeal cites both the
Sixth Amendment and article I, section 10 of the Iowa Constitution in support of his
ineffective-assistance-of-counsel claims. McNeal does not argue that we should
interpret article I, section 8 differently than the parallel provisions of the Fourth
Amendment. Neither does he argue that we should interpret article I, section 10
differently than the parallel provisions of the Sixth Amendment. Thus, for purposes of
our analysis we assume the legal principles governing each set of corresponding
provisions are the same. See Simmons v. State Pub. Defender, 791 N.W.2d 69, 76 n.3
(Iowa 2010). Even when a party has not proposed a substantive standard independent
of federal law, we reserve the right to apply the standard presented in a fashion different
than federal caselaw. State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).
13
preservation-of-error problems and affirm on the merits.”); State v.
Hochmuth, 585 N.W.2d 234, 236 (Iowa 1998) (“Assuming without
deciding that [defendant] has preserved error, we find her challenge . . .
is without merit.”). We turn now to consider whether there was probable
cause to support the search warrant in this case.
B. The Search Warrant. The Fourth Amendment to the United
States Constitution assures “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. “The Fourth Amendment is binding
on the states through the Fourteenth Amendment of the federal
constitution.” State v. Shanahan, 712 N.W.2d 121, 131 (Iowa 2006).
“The Fourth Amendment requires probable cause to support a search
warrant.” Id.; Gogg, 561 N.W.2d at 363.
The test to determine whether there is probable cause to issue a
search warrant 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.” Probable cause
to search requires a probability determination that “(1) the
items sought are connected to criminal activity and (2) the
items sought will be found in the place to be searched.”
Gogg, 561 N.W.2d at 363 (quoting State v. Weir, 414 N.W.2d 327, 330
(Iowa 1987) (first quote); United States v. Edmiston, 46 F.3d 786, 789 (8th
Cir. 1995) (second quote)); accord Shanahan, 712 N.W.2d at 131–32.
As a court, “[w]e have . . . generally endorsed the warrant-
preference requirement. We have repeatedly stated that warrantless
searches and seizures that did not fall within one of the ‘jealously and
carefully drawn exceptions’ are unreasonable.” State v. Ochoa, 792
N.W.2d 260, 285 (Iowa 2010) (quoting State v. Strong, 493 N.W.2d 834,
836 (Iowa 1992)). On the other hand, when police obtain a warrant, we
14
do not strictly scrutinize the sufficiency of the underlying affidavit. See
Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d
527, 546–47 (1983). To do so would be “inconsistent with the Fourth
Amendment’s strong preference for searches conducted pursuant to a
warrant.” Id. at 236, 103 S. Ct. at 2331, 76 L. Ed. 2d at 547. As the
Supreme Court of the United States has explained:
If the affidavits submitted by police officers are
subjected to the type of scrutiny some courts have deemed
appropriate, police might well resort to warrantless searches,
with the hope of relying on consent or some other exception
to the warrant clause that might develop at the time of the
search. In addition, the possession of a warrant by officers
conducting an arrest or search greatly reduces the
perception of unlawful or intrusive police conduct, by
assuring “the individual whose property is searched or seized
of the lawful authority of the executing officer, his need to
search, and the limits of his power to search.”
Id. (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S. Ct. 2476,
2482, 53 L. Ed. 2d 538, 547 (1977), abrogated on other grounds by
California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982, 1991, 114
L. Ed. 2d 619, 633–34 (1991)).
This is why, as a reviewing court, we do not independently
determine probable cause and instead “merely decide whether the
issuing judge had a substantial basis for concluding probable cause
existed.” Gogg, 561 N.W.2d at 363. “In determining if evidence seized
pursuant to a warrant should be suppressed, ‘the affidavit of probable
cause is interpreted in a common sense, rather than a hypertechnical,
manner.’ ” Shanahan, 712 N.W.2d at 132 (quoting Gogg, 561 N.W.2d at
363–64). “[W]e draw all reasonable inferences to support the judge’s
finding of probable cause and give great deference to the judge’s finding.”
Gogg, 561 N.W.2d at 364 (citation omitted); accord Gates, 462 U.S. at
236, 103 S. Ct. at 2331, 76 L. Ed. 2d at 547. “Close cases are decided in
15
favor of upholding the validity of the warrant.” Gogg, 561 N.W.2d at 364.
In assessing whether a substantial basis existed to find probable cause,
we are “ ‘limited to consideration of only that information, reduced to
writing, which was actually presented to the [judge] at the time the
application for warrant was made.’ ” Id. (alteration in original) (quoting
State v. Godbersen, 493 N.W.2d 852, 855 (Iowa 1992)). However, before
we begin our probable cause analysis, we must address two issues raised
by McNeal.
1. Challenge to probable cause based on anonymous tip. McNeal
first asserts that the information contained in the anonymous tip—that
McNeal had moved the trailer—should not have been deemed credible by
the issuing judge. In the context of anonymous tips, we “recognize[] a
rebuttable presumption that ‘information imparted by a citizen informant
in generally reliable.’ ” State v. Walshire, 634 N.W.2d 625, 629 (Iowa
2001) (quoting State v. Niehaus, 452 N.W.2d 184, 189 (Iowa 1990)).
However, an anonymous tip alone does not ordinarily contain sufficient
indicia of reliability to provide probable cause. See Florida v. J.L., 529
U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254, 260 (2000).
On the other hand, the United States Supreme Court has held that a
significantly corroborated anonymous tip is sufficient for purposes of the
Fourth Amendment. Alabama v. White, 496 U.S. 325, 331, 110 S. Ct.
2412, 2416, 110 L. Ed. 2d 301, 309 (1990). “[I]f a tip has a relatively low
degree of reliability, more information will be required to establish the
requisite quantum of suspicion than would be required if the tip were
more reliable.” Id. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309.
We recently addressed the issue of anonymous tips in the context
of a traffic stop. In State v. Kooima, 833 N.W.2d 202, 204 (Iowa 2013),
police received an anonymous tip from a restaurant patron who claimed
16
to have seen several men drinking before they left the restaurant in a
motor vehicle. Police followed the vehicle and, despite observing no
traffic violations, stopped it. Id. at 205. In concluding the stop violated
the Fourth Amendment, we noted:
Cases holding an anonymous tip had the sufficient
indicia of reliability to justify the stop contain three common
elements. First, the tipster gave an accurate description of
the vehicle, including its location, so the police could identify
the vehicle. Next, the tipster based his or her information on
personal, eyewitness observations made contemporaneously
with a crime in progress that was carried out in public,
identifiable, and observable by anyone. . . . Finally, the caller
described specific examples of traffic violations, indicating
the report was more than a mere hunch. . . .
On the other hand, when the anonymous tip does not
include details pertaining to the tipster’s personal
observation of erratic driving, other facts that would lead to a
reasonable inference the tipster witnessed an intoxicated
driver, or details not available to the general public as to the
defendant’s future actions, state supreme courts have ruled
the stop violated the Fourth Amendment.
Id. at 208–09, 211.
Accordingly, we held that when the sole basis for an automobile
stop is
a bare assertion by an anonymous tipster, without relaying
to the police a personal observation of erratic driving, other
facts to establish the driver is intoxicated, or details not
available to the general public as to the defendant’s future
actions[, the tip] does not have the requisite indicia of
reliability to justify an investigatory stop. Such a tip does
not meet the requirements of the Fourth Amendment.
Id. at 210–11.
In this case, however, Officer Harris independently verified three of
the four components contained in the tip. He confirmed: (1) the location
of the trailer as reported by the tipster; (2) that the trailer possessed the
features as described by the tipster; and (3) that the trailer belonged to
McNeal as reported by the tipster. The only aspect of the tip Officer
17
Harris did not independently verify was the movement of the trailer.
However, trailers are inherently mobile, a fact that did not need external
verification but may be inferred from the nature of the vehicle itself.
McNeal next asserts that Officer Harris’s indication the trailer was
“recently” moved, as contained within the application for search warrant,
should not have been considered by the judge in determining whether
probable cause existed. McNeal claims this information was not
contained in the tip and that there was no way to confirm whether the
trailer was moved “recently.” However, the court also had information
from Jones that McNeal “moved all of the stolen property a short time
before [Jones] was arrested” on September 20. Further, a trailer, given
its mobile character, was a logical place for McNeal to attempt to hide the
stolen property. Thus, any concern that the judge erroneously
understood the tip to include information about when the trailer was
moved does not undercut the court’s determination of probable cause
under the facts of this case.
2. Use of McNeal’s 2004 conviction. McNeal also maintains that it
was improper for the issuing judge to consider his 2004 conviction for
theft in the first degree. However, as a general matter, an individual’s
prior criminal record is a valid consideration. See, e.g., State v. Hoskins,
711 N.W.2d 720, 727 (Iowa 2006) (considering officer’s knowledge of
suspect’s prior drug convictions in determining whether there was
probable cause to justify search); State v. Poulin, 620 N.W.2d 287, 290
(Iowa 2000) (considering defendant’s prior conviction in determining
whether there was probable cause to support the issuance of a search
warrant); State v. Padavich, 536 N.W.2d 743, 748 (Iowa 1995) (noting
that several factors, including “a suspect’s history of involvement in the
drug trade[,]” may be considered in determining whether there is
18
probable cause to support the issuance of a search warrant). The use of
such information is common in law enforcement and is of some,
although limited, value in the ultimate determination of probable cause.
The judge could consider it as a factor.
3. Probable cause for the search warrant. McNeal contends that
excluding both the information that he “recently” moved the trailer and
the evidence of his prior conviction, there was no probable cause to
support the search warrant for the trailer. He argues the facts recited in
the affidavit were insufficient to establish a nexus between the stolen
tools and the trailer. However, even if we accept McNeal’s argument that
the application for search warrant contained impermissible information,
a reviewing court can remove the offending information and determine
whether the remaining information establishes probable cause. See
Niehaus, 452 N.W.2d at 186–87 (“[T]he offensive material must be deleted
and the remainder of the warrant reviewed to determine whether
probable cause existed.”). Ultimately, we must determine “whether the
issuing judge had a substantial basis for concluding probable cause
existed” to search the trailer. Gogg, 561 N.W.2d at 363. In so doing, we
consider the totality of the circumstances as presented in the application
for search warrant, and ask whether the common-sense inferences a
person may draw from them would lead “a person of reasonable
prudence [to] believe . . . evidence of a crime could be located” in the
place to be searched. Weir, 414 N.W.2d at 330; accord Shanahan, 712
N.W.2d at 131; State v. Thomas, 540 N.W.2d 658, 662–63 (Iowa 1995).
As an initial matter, we note that McNeal also maintains Jones was
not a credible informant because he received a cooperation agreement in
exchange for his statements against McNeal; thus, according to McNeal,
Jones had a motive to act out of self-interest. While the cooperation
19
agreement is part of the record, it was not part of the application for
search warrant considered by the issuing judge in assessing probable
cause. Notwithstanding, we find Jones’s statements to Officer Harris
were sufficiently reliable. We consider various factors in determining
whether information provided by an informant is reliable: (1) “whether
the informant was named”; (2) “the specificity of [the] facts detailed by
the informant”; (3) “whether the information furnished was against the
informant’s penal interest”; (4) “whether the information was
corroborated” by other information known to law enforcement;
(5) “whether the information was not public knowledge”; (6) “whether the
informant was trusted by the accused”; and (7) “whether the informant
directly witnessed the crime or fruits of it in the possession of the
accused.” Weir, 414 N.W.2d at 332; accord Niehaus, 452 N.W.2d at 190.
Here, Jones was a named informant. He risked retaliation from
McNeal or Wey for providing information to the officers. He provided the
officers with very specific information. Further, Officer Harris
corroborated many aspects of the information Jones provided,
specifically: Wey’s association with McNeal, that McNeal and his wife
owned the properties Jones identified as drop points for the stolen items,
and that there were “personal identifiers on some of the equipment from
the site that contained the name ‘Brad.’ ” Some of this information, such
as the identifying marks on the stolen property, was not public
knowledge. Jones was directly involved in the crimes and participated in
transporting the stolen equipment to McNeal’s properties. Further,
virtually all of the information provided by Jones was against his penal
interest, regardless of any cooperation agreement. We find the
information Jones provided officers was reliable.
20
We turn now to consider whether the facts recited in the affidavit
established a sufficient nexus between the stolen tools and the trailer.
“Although a nexus must be established between the items to be seized
and the place to be searched, direct observation is not required.” State v.
Groff, 323 N.W.2d 204, 212 (Iowa 1982); accord Godbersen, 493 N.W.2d
at 856 (“Direct observation is not required.”). This nexus between
criminal activity, the items to be seized, and the place to be searched
“can be found 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.” Groff, 323 N.W.2d at 212; accord Hoskins, 711
N.W.2d at 728; Gogg, 561 N.W.2d at 365; State v. Randle, 555 N.W.2d
666, 671 (Iowa 1996); Thomas, 540 N.W.2d at 663; State v. Leto, 305
N.W.2d 482, 486 (Iowa 1981); see also Godbersen, 493 N.W.2d at 855 (“It
is reasonable to assume that persons involved with drug trafficking
would keep evidence—drugs, weighing and measuring devices, packaging
materials and profits—at their residences.”); State v. Iowa Dist. Ct., 247
N.W.2d 241, 248 (Iowa 1976) (finding it is reasonable to infer that stolen
property would be found at suspects’ residence).
Here, even if we excise the information contained in the
anonymous tip and evidence of McNeal’s prior conviction as argued by
McNeal, based on the totality of the circumstances as presented in the
application for search warrant, probable cause existed to support the
search warrant in this case. Looking at the detailed information
presented in the application, and considering the common-sense
inferences a reasonable person may draw from that information, the
issuing judge could have reasonably concluded McNeal was the recipient
of stolen tools and equipment from several burglaries. The issuing judge
21
could have also reasonably concluded authorities would find evidence of
those crimes in the trailer.
Officer Harris’s application for search warrant was extensive and
chronicled the lengthy investigation that culminated in the discovery of
the trailer. In the October 3 interview, Jones told Officer Harris that he
and Wey “took the majority of the load of stolen property from the . . .
construction site . . . to . . . McNeal where [McNeal] bought the stolen
property for a fraction of what the property was actually worth.” Jones
further informed Officer Harris that he and Wey “would often break into
places and sell the stolen property to [McNeal].” Jones also identified two
specific drop points for the stolen tools and equipment. Jones further
informed Officer Harris that he spoke with McNeal shortly before his
arrest on September 20. At that time, Jones, Wey, and McNeal all
suspected “that the police were on to them.” During this conversation,
McNeal told Jones he had moved the stolen property, such that it was no
longer at the residence on Chester Street. Given these detailed
statements, it is reasonable to infer both that McNeal received stolen
tools and equipment from the construction-site burglary and that he had
recently moved them. Officer Harris corroborated this connection
between Jones, Wey, and McNeal during his subsequent investigation by
discovering that Wey had recently reported McNeal’s company as his
employer and confirming that McNeal and his wife owned the property
Jones identified as drop points for the stolen tools and equipment.
On the same day Officer Harris met with Jones, Sergeant Bell
informed Officer Harris about the anonymous tip regarding the trailer.
Officer Harris confirmed the location of the trailer, its physical
description, and that McNeal owned the company to which it was
registered. Additionally, the application for search warrant indicates the
22
construction-site burglary involved items stolen from several tool trailers.
While the application does not indicate that Jones specifically observed
McNeal use a trailer to move the stolen property, “direct observation is
not required.” Groff, 323 N.W.2d at 212; accord Godbersen, 493 N.W.2d
at 856. It is reasonable to infer that construction tools stolen from one
trailer could be stored and found in another, similar trailer. See
Godbersen, 493 N.W.2d at 855; Groff, 323 N.W.2d at 212 (“We think the
magistrate could reasonably infer that defendants’ residence was the
likely location for processing the marijuana.”); Leto, 305 N.W.2d at 486
(finding it is reasonable to infer that the suspect in automobile theft ring
would keep stolen automobiles at an auto body repair shop located at his
residence); Iowa Dist. Ct., 247 N.W.2d at 248–49. This is especially true
given that McNeal owned both a construction company of his own and at
least one construction trailer. In addition, Officer Harris discovered Wey
had recently reported McNeal’s company as his employer—the same
company that owned the trailer.
Further, considering the type of crime, the nature of the items
involved, and where a person would likely conceal the items, the nature
of the trailer and the location where it was found also support the
conclusion that officers would find the stolen items there. See Groff, 323
N.W.2d at 212. The trailer was mobile, large enough to store the stolen
items, and enclosed. It was a good, if not ideal, way to transport and
store the stolen items. Further, Officer Harris discovered the trailer in a
rural area, apart from other structures, and observed that it did not
appear to have an address associated with it. It was a good, if not ideal,
location to conceal the items—hidden from plain view and away from
McNeal. See id. (considering ideal location of farmstead used to conceal
a marijuana-processing station to support finding of probable cause).
23
Certainly, the fact that a trailer is parked in a rural area is not alone
sufficient to warrant an inference that evidence of a crime could be
located therein. However, combined with the detailed information
contained within the application for search warrant, a person of
reasonable prudence would believe McNeal chose the trailer as a hiding
place for the stolen property. Shanahan, 712 N.W.2d at 131–32.
Finally, “[w]e have recognized ‘police must “draw upon their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them that
might well elude an untrained person.” ’ ” State v. Maddox, 670 N.W.2d
168, 172–73 (Iowa 2003) (quoting State v. Heuser, 661 N.W.2d 157, 161
(Iowa 2003)); see also Hoskins, 711 N.W.2d at 728 (considering officers’
knowledge and experience in assessing whether probable cause existed
to support a search). We have also recognized that “[a]n officer’s expert
opinion is an important factor to be considered by the judge reviewing a
warrant application.” Godbersen, 493 N.W.2d at 856; accord United
States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (“A number of cases
have ruled that an agent’s expert opinion is an important factor to be
considered by the judge reviewing a warrant application.”). In the
application for search warrant, Officer Harris stated that, based on his
training and experience, “person[s] involved in criminal activity . . . often
keep[] items used during the commission of the crime, equipment,
trophies and records . . . in their vehicles.” He further noted that
“individuals who possess, purchase, steal, or distribute stolen property
often times use their own vehicles or trailers to transport and store such
property.” Officer Harris knew the construction-site burglary involved
items stolen from several tool trailers. Based on Jones’s statements,
Officer Harris knew McNeal had possession of the stolen property,
24
McNeal had moved the stolen property, McNeal owned a trailer parked in
a rural area in Wapello County, the trailer was similar to the trailers from
which the property was stolen, and the trailer was a good place to keep
the stolen property. Coupled with his training and experience, it was
probable that Officer Harris would find the moveable tools and
equipment in McNeal’s trailer.
The totality of the circumstances as presented in the application
for search warrant and the common-sense inferences a reasonable
person may draw from them result in the conclusion that the issuing
judge could have reasonably concluded both that McNeal received stolen
tools and equipment from various burglaries and that authorities would
find evidence of those crimes in the trailer. Even if we excise the
information contained in the anonymous tip and evidence of McNeal’s
prior conviction as argued by McNeal, the issuing judge had a
substantial basis for concluding there was probable cause that evidence
of a crime could be located in the place to be searched: McNeal’s trailer.
The district court properly denied the motion to suppress because the
search warrant was valid.
C. Ineffective Assistance of Counsel. In a criminal case, an
ineffective-assistance-of-counsel claim “need not be raised on direct
appeal from the criminal proceedings in order to preserve the claim for
postconviction relief purposes.” Iowa Code § 814.7(1). A defendant may
raise such a claim on direct appeal if they have “reasonable grounds to
believe that the record is adequate to address the claim on direct appeal.”
Id. § 814.7(2). Ordinarily, we preserve such claims for postconviction
relief proceedings. Clay, 824 N.W.2d at 494. “We prefer to reserve such
questions for postconviction proceedings so the defendant’s trial counsel
can defend against the charge.” State v. Tate, 710 N.W.2d 237, 240
25
(Iowa 2006). This is especially appropriate when the challenged actions
concern trial strategy or tactics counsel could explain if a record were
fully developed to address those issues. Clay, 824 N.W.2d at 494. “We
will resolve the claims on direct appeal only when the record is
adequate.” Id. It is a rare case in which the trial record alone is
sufficient to resolve a claim on direct appeal. State v. Straw, 709 N.W.2d
128, 133 (Iowa 2006).
McNeal has raised several claims of ineffective assistance of
counsel in this appeal. Specifically, he asserts trial counsel was
ineffective in: (1) failing to introduce favorable testimony from Wey at
trial, either through a transcript or recording of a prior interview
conducted by police, or by presenting him as a witness; (2) failing to
adequately challenge the value of the stolen construction equipment at
trial; (3) failing to object to testimony from Jones at trial implicating
McNeal in dealing drugs; and (4) failing to file a motion to compel
discovery, extend deadlines, or seek a continuance because of late
discovery provided by the State. In our de novo review of the record, we
conclude the record before us is inadequate to reach the merits of
McNeal’s ineffective-assistance-of-counsel claims. McNeal will need to
develop these claims through possible postconviction proceedings.
IV. Conclusion.
The issuing judge had a substantial basis for concluding there was
probable cause to support the search warrant and the district court
properly denied McNeal’s motion to suppress. The search of the trailer
did not violate the Fourth Amendment or article I, section 8 of the Iowa
Constitution. Additionally, the record before us is inadequate to reach
the merits of McNeal’s ineffective-assistance-of-counsel claims. We
26
vacate the decision of the court of appeals and affirm the judgment of the
district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.