IN THE COURT OF APPEALS OF IOWA
No. 19-0277 Filed November 6, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
GREGORY JOHN SCHULDT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy
(suppression) and Randy V. Hefner (sentencing), Judges.
A defendant appeals his conviction for intimidation with a dangerous
weapon and his sentencing order of restitution. CONVICTIONS AFFIRMED;
SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L.
Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
BLANE, Senior Judge.
Gregory Schuldt appeals the denial of his motion to suppress in which he
challenged the district court’s issuance of three separate search warrants sought
by Newton police in their investigation of a drive-by shooting. Schuldt also contests
the district court’s imposition of court costs without determining his reasonable
ability to pay. Based upon our review, the district court had a substantial basis for
concluding probable cause existed to issue the warrants. But the court failed to
apply the statutory requirements for restitution. We affirm the convictions but
reverse the sentences in part and remand for entry of a final restitution order.
I. Procedural history and factual background.
On January 17, 2018, the court found domestic abuse had been committed
by Gregory Schuldt upon Nicole Byrd and issued a no-contact order (NCO). On
January 17, Nicole’s father Daniel Byrd had a verbal confrontation with Schuldt.1
On Sunday, January 28, around 9:25 p.m., a light-colored sedan drove past the
Byrd home in Newton, and eight shots were fired into the house. Both Daniel and
his wife were present in the home at the time. The Newton police were called, and
Daniel advised that there was only one person with whom he had any recent
problems, that being Schuldt.
After their initial investigation, on February 5, Newton police sergeant Chris
WIng applied for a search warrant to obtain cell phone account information from
U.S. Cellular, Schuldt’s cell phone provider, for his assigned cell phone number.
1 Daniel mentioned to law enforcement officers his concern about his grandson, Nicole’s child, growing up in a violent environment and spoke of obtaining custody. 3
In support of the application, Sergeant Wing supplied the following information
garnered from their investigation to that point, which we summarize here.
On January 28, the home of Daniel and Debora Byrd in Newton was shot
at eight times in a drive-by. The house belonged to the parents of Schuldt’s former
girlfriend, Nicole Byrd, who on January 17 had obtained a NCO against Schuldt.
On the evening of the shooting, Schuldt had been at a bar in Des Moines with
Stephanie Belieu. At around 8:25 p.m., Schuldt asked her for a ride to get his car.
When she refused, Schuldt made a call on his cell phone to get a ride. Schuldt
reunited with Belieu at a different bar in Des Moines at 10:00 p.m. He was gone
long enough to go to Newton and return. At around 10:45 p.m., Schuldt asked
Belieu if he could hide a gun in her car. She took Schuldt out to her vehicle and
watched him unload a handgun and deposit it in the car. When they left the bar,
Schuldt retrieved the gun.
Around 8 a.m. the morning after the shooting, Schuldt posted on his
Facebook page, “Underestimate me. That’ll be fun.” Schuldt also sent a Facebook
message to Nicole Byrd asking what she had told the police during her interview,
obviously referencing the drive-by shooting. And Daniel believed Nicole was still
seeing Schuldt despite the NCO. Another family member, Destiny Lautenbach,
who is friends with Schuldt on Facebook, provided snapshots of his postings.
When Schuldt returned a call to Sergeant Wing, the officer verified Schuldt’s
cell phone number. Schuldt reported to Wing he had been at a bar the evening of
the shooting. Wing asked if Schuldt had been in Newton, and without the officer
mentioning the shooting, Schuldt replied he had nothing to do with the shooting.
When confronted with the fact that the officer had not mentioned the shooting, 4
Schuldt said he must have heard it from his brother. Wing had spoken earlier to
Schuldt’s brother, Joshua, but had not mentioned the shooting specifically. Wing
believed Schuldt was providing false information.
In the application for the first search warrant, Sergeant Wing stated he
“believed that evidence of the crime of Intimidation with a Dangerous Weapon [in
violation of Iowa Code section 708.6 (2018)] will be found on the Servers belonging
to US Cellular.” Specifically, Wing pointed to “records related to subscriber
information, . . . outbound and inbound call detail, connection times and dates,
internet routing information . . . , and message content that may assist in the
identification of person/s accessing and utilizing the account.” In addition, Wing
sought “records that include cell site information and Global Positioning System
(GPS) location. . . . [allowing officers] to determine the area or physical location of
the individual using the cell phone number . . . which according to corroborating
sources” belonged to Schuldt.
On February 6, in the second warrant application, seeking to recover
information specifically from Schuldt’s phone, Detective Randall Camp stated,
It is probable that information on Schuldt’s cell phone . . . will show who picked him up at the bar and who he contacted later in the night. It is also probable that there will be information on his phone to show who he contacted before and after the shooting incident, as well as text message conversation about the shooting.
Finally, on February 7, in a third application for a search warrant seeking
records on Schuldt’s Facebook account, Sergeant Wing explained his familiarity
with Facebook’s functionality, particularly when viewed from an application on a
cell phone and asserted it would “allow investigators to establish times, dates and
in some instances locations from where the connections were made.” Wing also 5
sought “photos, images, videos, correspondence, documents, [and] personal
notes or files . . . relating to the planning, motive, and commission” of the offense
of intimidation with a dangerous weapon.
The district court granted all three applications and issued the search
warrants. Schuldt filed a motion to suppress “any and all evidence resulting from
the three warrants,” which the district court denied. Schuldt agreed to a trial on the
minutes, and the court found him guilty of intimidation with a dangerous weapon,
a class “C” felony, and possession of a firearm by domestic violence offender, a
class “D” felony. At sentencing, the court imposed court costs which included
restitution for certain incurred costs. Schuldt appeals.
II. Scope and Standard of Review.
“When a defendant challenges a district court’s denial of a motion to
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IN THE COURT OF APPEALS OF IOWA
No. 19-0277 Filed November 6, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
GREGORY JOHN SCHULDT, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy
(suppression) and Randy V. Hefner (sentencing), Judges.
A defendant appeals his conviction for intimidation with a dangerous
weapon and his sentencing order of restitution. CONVICTIONS AFFIRMED;
SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L.
Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
BLANE, Senior Judge.
Gregory Schuldt appeals the denial of his motion to suppress in which he
challenged the district court’s issuance of three separate search warrants sought
by Newton police in their investigation of a drive-by shooting. Schuldt also contests
the district court’s imposition of court costs without determining his reasonable
ability to pay. Based upon our review, the district court had a substantial basis for
concluding probable cause existed to issue the warrants. But the court failed to
apply the statutory requirements for restitution. We affirm the convictions but
reverse the sentences in part and remand for entry of a final restitution order.
I. Procedural history and factual background.
On January 17, 2018, the court found domestic abuse had been committed
by Gregory Schuldt upon Nicole Byrd and issued a no-contact order (NCO). On
January 17, Nicole’s father Daniel Byrd had a verbal confrontation with Schuldt.1
On Sunday, January 28, around 9:25 p.m., a light-colored sedan drove past the
Byrd home in Newton, and eight shots were fired into the house. Both Daniel and
his wife were present in the home at the time. The Newton police were called, and
Daniel advised that there was only one person with whom he had any recent
problems, that being Schuldt.
After their initial investigation, on February 5, Newton police sergeant Chris
WIng applied for a search warrant to obtain cell phone account information from
U.S. Cellular, Schuldt’s cell phone provider, for his assigned cell phone number.
1 Daniel mentioned to law enforcement officers his concern about his grandson, Nicole’s child, growing up in a violent environment and spoke of obtaining custody. 3
In support of the application, Sergeant Wing supplied the following information
garnered from their investigation to that point, which we summarize here.
On January 28, the home of Daniel and Debora Byrd in Newton was shot
at eight times in a drive-by. The house belonged to the parents of Schuldt’s former
girlfriend, Nicole Byrd, who on January 17 had obtained a NCO against Schuldt.
On the evening of the shooting, Schuldt had been at a bar in Des Moines with
Stephanie Belieu. At around 8:25 p.m., Schuldt asked her for a ride to get his car.
When she refused, Schuldt made a call on his cell phone to get a ride. Schuldt
reunited with Belieu at a different bar in Des Moines at 10:00 p.m. He was gone
long enough to go to Newton and return. At around 10:45 p.m., Schuldt asked
Belieu if he could hide a gun in her car. She took Schuldt out to her vehicle and
watched him unload a handgun and deposit it in the car. When they left the bar,
Schuldt retrieved the gun.
Around 8 a.m. the morning after the shooting, Schuldt posted on his
Facebook page, “Underestimate me. That’ll be fun.” Schuldt also sent a Facebook
message to Nicole Byrd asking what she had told the police during her interview,
obviously referencing the drive-by shooting. And Daniel believed Nicole was still
seeing Schuldt despite the NCO. Another family member, Destiny Lautenbach,
who is friends with Schuldt on Facebook, provided snapshots of his postings.
When Schuldt returned a call to Sergeant Wing, the officer verified Schuldt’s
cell phone number. Schuldt reported to Wing he had been at a bar the evening of
the shooting. Wing asked if Schuldt had been in Newton, and without the officer
mentioning the shooting, Schuldt replied he had nothing to do with the shooting.
When confronted with the fact that the officer had not mentioned the shooting, 4
Schuldt said he must have heard it from his brother. Wing had spoken earlier to
Schuldt’s brother, Joshua, but had not mentioned the shooting specifically. Wing
believed Schuldt was providing false information.
In the application for the first search warrant, Sergeant Wing stated he
“believed that evidence of the crime of Intimidation with a Dangerous Weapon [in
violation of Iowa Code section 708.6 (2018)] will be found on the Servers belonging
to US Cellular.” Specifically, Wing pointed to “records related to subscriber
information, . . . outbound and inbound call detail, connection times and dates,
internet routing information . . . , and message content that may assist in the
identification of person/s accessing and utilizing the account.” In addition, Wing
sought “records that include cell site information and Global Positioning System
(GPS) location. . . . [allowing officers] to determine the area or physical location of
the individual using the cell phone number . . . which according to corroborating
sources” belonged to Schuldt.
On February 6, in the second warrant application, seeking to recover
information specifically from Schuldt’s phone, Detective Randall Camp stated,
It is probable that information on Schuldt’s cell phone . . . will show who picked him up at the bar and who he contacted later in the night. It is also probable that there will be information on his phone to show who he contacted before and after the shooting incident, as well as text message conversation about the shooting.
Finally, on February 7, in a third application for a search warrant seeking
records on Schuldt’s Facebook account, Sergeant Wing explained his familiarity
with Facebook’s functionality, particularly when viewed from an application on a
cell phone and asserted it would “allow investigators to establish times, dates and
in some instances locations from where the connections were made.” Wing also 5
sought “photos, images, videos, correspondence, documents, [and] personal
notes or files . . . relating to the planning, motive, and commission” of the offense
of intimidation with a dangerous weapon.
The district court granted all three applications and issued the search
warrants. Schuldt filed a motion to suppress “any and all evidence resulting from
the three warrants,” which the district court denied. Schuldt agreed to a trial on the
minutes, and the court found him guilty of intimidation with a dangerous weapon,
a class “C” felony, and possession of a firearm by domestic violence offender, a
class “D” felony. At sentencing, the court imposed court costs which included
restitution for certain incurred costs. Schuldt appeals.
II. Scope and Standard of Review.
“When a defendant challenges a district court’s denial of a motion to
suppress based upon the deprivation of a state or federal constitutional right, our
standard of review is de novo.” State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019)
(citation omitted).
We review an order for restitution for correction of errors at law. State v.
Albright, 925 N.W.2d 144, 158 (Iowa 2019).
III. Search Warrants.
Schuldt appeals the suppression decision contending the applications for
the warrants lacked probable cause and were “nothing more than fishing
expeditions for evidence.”2 The district court found,
2 The State first argues Schuldt waived his arguments on probable cause because the district court found an alternative ground on which to deny the motion to suppress when it said, “Regarding cell phone and Facebook data, the court agrees with the State that Defendant had no reasonable expectation of privacy.” This statement came at the end of 6
The court has reviewed the applications and the “totality of circumstances” described therein. Several facts set forth in the applications are pertinent: Defendant’s posting to Facebook; Defendant’s Facebook messages; Defendant’s use of a cell phone; Defendant’s possession of a weapon on the night of the shooting; and Defendant’s whereabouts. In 2018, it was reasonable to assume that a person who used Facebook used his/her cell phone to access Facebook. Further, cell phone data might have assisted officers in determining a person’s location. The cellphone itself could have been expected to provide evidence of messages or calls connecting Defendant to the incident. Facebook messages or posts could have provided evidence that implicated or exonerated a person. There was probable cause, described in the applications, to issue the warrants. Given the alleged facts, a reasonable person would believe cell phone data, the cell phone, and Facebook information, would yield evidence. There was a nexus between that which was to be searched (and seized) and the crime.
The Fourth Amendment to the United States Constitution requires probable
cause to support a search warrant.3 See State v. McNeal, 867 N.W.2d 91, 99
(Iowa 2015). Probable cause to issue a search warrant exists when “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.” Id. (quoting State v.
Gogg, 561 N.W.2d 360, 363 (Iowa 1997)). This requires proof both that “the items
sought are connected to criminal activity” and “will be found in the place to be
searched.” Id. (quoting Gogg, 561 N.W.2d at 365). Our appellate courts prefer
the ruling, after the court had fully analyzed the probable cause arguments. Schuldt argues the court made a ruling on an issue that was not before it. In its resistance to the motion to suppress, the State argued there was no reasonable expectation of privacy in third-party information such as cell phone records and Facebook accounts. But neither party brought it up at the suppression hearing. In any case, we need not decide whether Schuldt had a reasonable expectation of privacy because we agree with the district court the warrants were based on probable cause. 3 Although Schuldt raises his claim under both the federal and state constitutions, he does not explain how interpretation under the Iowa Constitution differs. Under such circumstances, our analysis applies to the claims under both constitutions. See State v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006). 7
search by warrant. Id. at 100. Therefore, we do not review the sufficiency of the
evidence underlying the warrant. Id. We decide only whether “the issuing judge
had a substantial basis for concluding probable cause existed.” Id. (quoting Gogg,
561 N.W.2d at 363). We make all reasonable inferences to support the probable
cause finding and defer to the judge’s findings. Id. In a close case, we err on the
side of upholding the warrant. Id. We are limited to only what information was
before the judge at the time they made the decision. Id.
Schuldt argues the warrants for the contents of his cell phone and cell
phone records from U.S. Cellular lacked probable cause because “[l]aw
enforcement only had a mere suspicion that Schuldt was in the area at the time of
the offence” and “[k]nowing who picked up Schuldt is not evidence of intimidation
with a dangerous weapon.” But law enforcement had much more than a mere
suspicion that Schuldt was the shooter. Shortly before the shooting, Schuldt had
assaulted Daniel’s daughter, which resulted in Schuldt facing charges and a NCO.
Daniel and Schuldt got into a verbal confrontation that day. After the shooting,
Daniel reported Schuldt was the only person who might have wanted to intimidate
him with a dangerous weapon. The night of shooting, video evidence and witness
reports placed Schuldt at a bar until 8:25 p.m. when he left and did not reappear
until 10:00 p.m. The shooting happened at around 9:25 p.m. that night. Officers
surmised Schuldt would have had enough time to leave the bar, drive to Newton,
carry out the shooting, and return to Des Moines. A witness watched him unload
a handgun and place it in the back of her vehicle about an hour after the shooting.
When officers asked his whereabouts that evening, Schuldt said he was at a bar
and walked home, contrary to the witness report he called someone for a ride. He 8
also spontaneously mentioned the shooting and explained his brother told him
when the officer believed his brother could not have known about it. Whoever
Schuldt called from the bar could have driven him to do the shooting or taken him
to pick up another car to carry out the shooting, showing a mode of transport and
a possible additional witness or accomplice. Such information was discoverable
through the cell phone and call records. And cell phone location markers could
reveal where Schuldt was located during the time he went unaccounted for,
including whether he traveled to Newton, which he had denied. A person of
reasonable prudence would conclude the cell phone contents and records could
show evidence Schuldt obtained a car that night, drove to Newton, and carried out
the drive-by shooting at the Byrd residence. The district court had a substantial
basis for concluding probable cause existed to issue the warrants for Schuldt’s cell
phone.
Schuldt next contends the warrant for his Facebook account records lacked
probable cause because the officer did not identify any evidence he expected to
find on Facebook. It was evident that Schuldt had a Facebook account. The
warrant application identified evidence of times, dates, and locations they expected
to find in the Facebook records. They also reported Nicole and Schuldt
communicated about the shooting over Facebook Messenger. In addition,
evidence in the application indicated Nicole and Schuldt were breaking the NCO
together and might be in further communication. And Schuldt placed an ominous
or threatening message on his Facebook wall the morning after the shooting that
concerned Byrd family members. A reasonably prudent person would conclude
further evidence of the crime, including admissions or discussion of Nicole and 9
Schuldt’s motivations or state of mind around the time of the shooting, could be
found in his Facebook and Facebook Messenger data. Thus, the district court had
a substantial basis for concluding probable cause existed to issue warrants for
Schuldt’s Facebook account.4
IV. Restitution.
Schuldt next contends the district court erred in ordering him to pay
restitution without knowing the amount of the costs. At sentencing, the district
court ordered Schuldt to pay a fine, surcharges, and victim restitution to the Byrds
in the amount of $1000. It also ordered Schuldt to pay all court costs and court-
appointed attorney fees. The court ordered the clerk of court “to assess the exact
amount thereof on a continuing basis.” As to court-appointed attorney fees, the
court found, “[T]he Defendant has the reasonable ability to pay restitution of fees
and costs in the amount provided by the State Public Defender or $0.00, whichever
is less, and shall pay the same to the Clerk of Court.” We interpret this language
to mean the court found Schuldt did not have any reasonable ability to pay court-
appointed attorney fees.
There are two categories of restitution. See Albright, 925 N.W.2d 159.
Category one includes victim restitution, fines, penalties, and surcharges and may
be ordered without regard to the offender’s ability to pay. Id. Category two
includes court costs, court-appointed attorney fees, and correctional fees and can
only be ordered “to the extent the offender has the reasonable ability to pay.” Id.;
accord State v. Headley, 926 N.W.2d 545, 553 (Iowa 2019).
4 Because we uphold the warrants, we do not address the State’s argument any error was harmless. 10
Although the court properly assessed category-one restitution, it failed to
follow our statutory procedures as explained in Albright with regard to the category-
two restitution costs. The court made no assessment of Schuldt’s reasonable
ability to pay court costs but simultaneously concluded Schuldt had no reasonable
ability to pay court-appointed attorney fees. This the court cannot do; it must
assess the offender’s ability to pay all category-two costs together. The court also
did not have the amount of court costs before it, instead asking the clerk of court
to submit those amounts on a rolling basis. Therefore, we vacate the restitution
portion of the sentencing order and remand for further proceedings to determine
the full amount of court costs, reassessment of Schuldt’s reasonable ability to pay,
and entry of a final restitution order.
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.