IN THE COURT OF APPEALS OF IOWA
No. 14-2129 Filed May 25, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JEREMY LEE SCHROEDER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Richard D. Stochl,
Judge.
The defendant appeals from his convictions for conspiracy to manufacture
methamphetamine, possession of anhydrous ammonia with intent to
manufacture methamphetamine, possession of methamphetamine, and
possession of marijuana. AFFIRMED.
Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Heard by Potterfield, P.J., and Mullins and McDonald, JJ. 2
POTTERFIELD, Presiding Judge.
Jeremy Schroeder appeals from his convictions for conspiracy to
manufacture methamphetamine, possession of anhydrous ammonia with intent
to manufacture methamphetamine, possession of methamphetamine, and
possession of marijuana. Schroeder maintains the district court should have
granted his motion to suppress evidence because the warrant application lacked
sufficient probable cause to place his bedroom within the scope of the search.
He also maintains the district court erred when it denied his motion for judgment
of acquittal,1 and he claims trial counsel was ineffective for failing to impeach an
officer at trial with his testimony from the suppression hearing.
I. Background Facts and Proceedings
On February 14, 2013, conservation officers from the Iowa Department of
Natural Resources (DNR) executed a search warrant at Schroeder’s residence.
Schroeder’s adult son, who was living in Schroeder’s home at the time, was the
subject of the investigation. The DNR officers had been told Schroeder was
believed to be involved in the manufacturing of methamphetamine in a briefing by
the sheriff’s department earlier that morning. They were warned about the
dangerous nature of many of the substances used in the manufacturing process
and were told to call the sheriff’s department for assistance if they “came across
something they had questions on that may be clan[destine]-lab[oratory] related.” 1 Although appellate counsel refers to the defendant’s motion as one for directed verdict, it appears trial counsel correctly made a motion for judgment of acquittal. For purposes of the appeal, we treat appellate counsel’s claim regarding a motion for a directed verdict as a claim regarding a motion for judgment of acquittal. See State v. Adney, 639 N.W.2d 246, 249 n.2 (Iowa Ct. App. 2001); see also State v. Deets, 195 N.W.2d 118, 123 (Iowa 1972) (holding that grant of motion for directed verdict is tantamount to a judgment of acquittal in a criminal action), overruled on other grounds by State v. Walker, 574 N.W.2d 280, 283 (Iowa 1998). 3
While executing the warrant, the officers searched the entire home, including
Schroeder’s bedroom. Approximately half an hour into their search, the DNR
officers called the local sheriff’s department for assistance.
Based on items found during the execution of the search warrant and
alleged admissions made by Schroeder to police officer, Brent Ostrander,
Schroeder was charged by trial information with conspiracy to manufacture a
controlled substance (methamphetamine), in violation of Iowa Code sections
124.401(1)(b)(7) and 706.1 (2013); possession of anhydrous ammonia with intent
to manufacture a controlled substance (methamphetamine), in violation of
section 124.401(4)(d); possession of a controlled substance (methamphetamine),
third offense, in violation of section 124.401(5); and possession of a controlled
substance (marijuana), second offense, in violation of section 124.401(5).
Schroeder filed a motion to suppress on August 1, 2014. The motion
asserted, “The search warrant application lacked sufficient probable cause to
allow for a search of the Defendant’s bedroom. That search of the bedroom was
outside the scope of the warrant and therefore unconstitutional.”2 Schroeder
argued that because the purpose of the warrant was to search for evidence of
crimes committed by his adult son who rented a room in the home, the warrant
did not authorize a search of Schroeder’s bedroom.
At a hearing held on the matter, the son testified that he was renting from
his father at the time the search warrant was executed. The son lived
2 Although the search warrant application is not part of the record for our review, testimony at the suppression hearing indicated that the basis for the application was illegal hunting by Schroeder’s son, and the officers requested to search “the residence, outbuildings, and on the whole premises” for “any wildlife” or “parts thereof.” 4
downstairs, which could be entered either by stairs from the main level of the
residence or from a separate outside entrance. The son’s bedroom, as well as a
kitchen, bathroom, and living room, were downstairs along with another bedroom
and a common-use laundry room. The son testified that in lieu of rent, he paid
the electric bill for the entire residence—which usually cost approximately $400—
and helped with some chores. Schroeder’s bedroom was a lofted room,
accessed by stairs from the upstairs living room, which comprised the entire
second-story of the home. The bedroom was partially open to the living room
below, with only a half-wall on the side of the bedroom over the living room. The
officers found a bucket containing a green leafy substance in Schroeder’s room.
The substance was later tested and confirmed to be eighteen grams of
marijuana. Also recovered from the room was a bucket containing, among other
things, a scale and eighteen small plastic bags. According to the lab report
prepared by the Iowa Division of Criminal Investigation (DCI) laboratory, each of
the eighteen small bags had a white powder residue in it, but only one was
tested. The test confirmed that the residue included methamphetamine.
On August 12, 2014, the district court denied Schroeder’s motion to
suppress. The court ruled:
There was probable cause to believe the objects sought by officers, wildlife contraband, could have been located through the entire household. The warrant allowed for such a search and was executed within its scope. This court does not believe the Schroeder residence contained more than one single-family residence. It was a home where [the son] lived with his father in a basement bedroom. The warrant allowed the officers to search the entire residence. They were not precluded from expanding that search to [Schroeder’s] upstairs bedroom. 5
The jury trial commenced on October 29, 2014. At trial, Officer Ostrander
testified that he had initially begun investigating Schroeder for manufacturing
methamphetamine due to information he received from the National Precursor
Log Exchange, which tracks people’s purchases of pseudoephedrine. Ostrander
noted that Schroeder and his fiancée made fifty-five purchases of
pseudoephedrine in a fifty-two week period. The parties never purchased more
than is allowed in a thirty-day cycle, but they appeared to be regularly taking
turns purchasing it.
DNR conservation officer Jerry Farmer and Officer Ostrander testified
regarding the various suspicious items they recovered while executing the search
warrant: an “ice cream pail with the green leafy substance in it” and multiple
small, clear bags with a white residue inside of them in Schroeder’s bedroom; a
“big glass jar” with clear liquid in it, a “jug of muriatic acid,” lantern fuel, coffee
filters, “crumpled” pieces of aluminum foil, and a lithium battery in the laundry
room; three tanks including one believed to contain anhydrous ammonia, a bottle
identified as an HCL generator,3 and multiple burnt “blister packs,” which had
contained pseudoephedrine, outside of the home.
Officer Ostrander testified that Schroeder arrived at the home soon after
he arrived at the residence. He stated that Schroeder walked around with him
during the search and was very cordial and communicative. According to
Ostrander, Schroeder told him the tanks had been used to hold anhydrous
ammonia, showed him where the HCL generator was, admitted he was buying
pseudoephedrine to sell to an unnamed manufacturer of methamphetamine for
3 A hydrogen chloride gas generator 6
twenty-five dollars per package, and told him the laundry room was the location
of an “old cook” that had taken place “one to two months prior.”
Officer Mark Kautman testified about the results from the DCI lab. One of
the jars of clear liquid “was consistent with the remains of methamphetamine that
had been manufactured.” Based on the burnt blister packs, the lab concluded
there were six grams of pseudoephedrine, and that would produce a “theoretical
yield” of 5.52 grams of methamphetamine. The report contains a statement that
“[t]he actual yield in any chemical synthesis is always less than the theoretical
yield.” Three of the liquids tested contained a compound or mixture of
methamphetamine and had net weights of 328.1 grams, 332.1 grams, and 172.1
grams. Officer Kautman also testified about the various ingredients and
processes necessary to make methamphetamine and why the various recovered
items, although legal to own individually, were suspicious in nature when
considered together.
Schroeder testified in his own defense. He denied telling Officer
Ostrander that the corroding tanks had held anhydrous or were used to make
methamphetamine; denied that the bottle recovered outside was an HCL
generator, or that he had ever stated it was; denied admitting that he sells
packages of pseudoephedrine to a manufacturer for profit; and denied telling
Officer Ostrander the laundry room of the home had been used for an “old cook.”
Schroeder did admit the marijuana recovered from his bedroom was his and
stated that he “self-medicates” with it. He testified he buys pseudoephedrine
often because, as a logger who works outside and is exposed to damp weather
and allergens, he takes it daily. Schroeder testified that Ostrander had 7
threatened him while the officers were executing the search warrant, stating he
could “make it look bad” if Schroeder would not agree to work with him as an
informant.
On October 30, 2014, the jury returned a guilty verdict for each of the four
charged offenses. Schroeder was sentenced to a term of incarceration not to
exceed twenty-five years for conspiracy to manufacture methamphetamine, and
the other three sentences were set to run concurrently.
Schroeder appeals.
II. Standard of Review
We review the totality of the circumstances to determine whether probable
cause has been established for the issuance of a search warrant. State v. Davis,
679 N.W.2d 651, 656 (Iowa 2004). “The existence of probable cause to search a
particular area depends on whether a person of reasonable prudence would
believe that evidence of a crime might be located on the premises to be
searched.” Id. The issuing judge must “‘make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit’ presented
to the judge, there is a fair probability that law enforcement authorities will find
evidence of a crime at a particular place.” Id. (citation omitted).
“A motion for judgment of acquittal is a means of challenging the
sufficiency of the evidence, and we review such claims for corrections of errors at
law.” State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010). If a verdict is
supported by substantial evidence, we uphold the finding of guilt. State v.
Henderson, 696 N.W.2d 5, 7 (Iowa 2005). “In conducting our review, we
consider all the evidence, that which detracts from the verdict, as well as that 8
supporting the verdict.” Id. We review the evidence in the light most favorable to
the State. Id.
Insofar as Schroeder makes a claim for ineffective assistance of trial
counsel, we review the claim de novo. State v. Willis, 696 N.W.2d 20, 22 (Iowa
2005).
III. Discussion
A. Motion to Suppress
Schroeder maintains the district court should have granted his motion to
suppress evidence because the warrant application lacked sufficient probable
cause to place his bedroom within the scope of the search.4
In making his argument, Schroeder relies on State v. Fleming, 790 N.W.2d
560, 567 (Iowa 2010). In Fleming, the defendant was renting a room in a single-
family home where officers executed a search warrant. 790 N.W.2d at 563. The
officers searched the home based on probable cause one of the other residents,
Nearman, was selling drugs out of the home. Id. at 562. The defendant was not
related to the other resident, and he had exclusive possession of his room. Id. at
563. The officers searched the entire residence, including the defendant’s room,
where they found a small amount of marijuana. Id. at 562. Although there was a
valid search warrant issued for the residence, the defendant argued his bedroom
was outside of the scope of the warrant. Id. at 564. The court considered 4 On appeal, Schroeder also argues that the tanks, which purportedly held anhydrous ammonia, were “far behind the Schroeder house” and “not anywhere near the Schroeder house or outbuildings”—the area sanctioned to be searched by the warrant. As such, he also maintains the testimony about the tanks should have been suppressed by the district court. However, Schroeder did not make this argument to the district court, and we decline to consider it on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”). 9
whether a “separate search warrant was required for a room rented within
Nearman’s house.” Id. at 563. The court used a two-step analysis: “First, we
decide whether the person challenging the search has shown a legitimate
expectation of privacy in the area searched. If so, we then ‘consider whether the
State has unreasonably invaded that protected interest.’” Id. at 564 (citation
omitted). The party challenging the legality of the search has the burden of
showing they had a legitimate expectation of privacy in the area searched. Id.
The court determined the defendant had an expectation of privacy in his rented
room and the officers had invaded it without probable cause that there was
evidence of any illegality. Id. at 567–68. As such, the court ruled the search was
warrantless, and because the State did not establish that an applicable exception
made a warrant unnecessary, the evidence was suppressed. Id. at 568.
To decide Schroeder’s claim, we must determine whether he had a
legitimate expectation of privacy in his bedroom and, if he did, whether the
search of his room was supported by an independent showing of probable cause.
See id. at 567. However, we are unable to review whether officers had probable
cause to search Schroeder’s room because the application for the search
warrant presented to the magistrate is not part of our record for review. See
State v. Thomas, 540 N.W.2d 658, 661–62 (Iowa 1995) (“It is well established in
Iowa jurisprudence that the issuance of a search warrant is to be ‘tested entirely
by the recitals in affidavits and the magistrate’s abstracts of oral testimony
endorsed on the application.’” (citation omitted)); see also State v. Gogg, 561
N.W.2d 360, 363 (Iowa 1997) (“In determining whether a substantial basis
existed for a finding of probable cause, we are ‘limited to consideration of only 10
that information, reduced to writing, which was actually presented to the [judge]
at the time the application for warrant was made.’” (alteration in original) (citation
omitted)). Here, there is no indication the hearing judge or counsel had a copy of
the application or warrant. We do not have it to review. As such, we decline to
consider Schroeder’s claim that the evidence obtained while searching his
bedroom should have been suppressed. See Fleming, 790 N.W.2d at 568
(noting the court refused to consider testimony from the suppression hearing
because it was outside of the warrant application).
B. Motion for Judgment of Acquittal
Schroeder maintains the district court erred in denying his motions for
judgment of acquittal regarding the charges of conspiracy to manufacture
methamphetamine and possession of anhydrous ammonia with intent to
manufacture methamphetamine.
1. Conspiracy to Manufacture Methamphetamine: The State had the
burden to establish:
(1) There was an agreement between the defendant and [his fiancée] to manufacture methamphetamine; (2) The defendant entered into the agreement with the intent to promote or facilitate the manufacture of methamphetamine; (3) Either the defendant or [his fiancée] committed an overt act; and (4) [Schroeder’s fiancée] was not a law enforcement agent.
Additionally, based on the code section Schroeder was charged and convicted
under, Iowa Code section 124.401(1)(b)((7), the State had to prove Schroeder
conspired to manufacture more than five grams of methamphetamine.
Schroeder maintains there was not sufficient evidence to support a finding
that there was an agreement between himself and his fiancée to manufacture 11
methamphetamine, nor that they conspired to manufacture more than five grams.
At trial, the State introduced evidence that Schroeder’s fiancée had been living
with him in the home where an “old cook” had recently occurred. Additionally,
using the National Precursor Log Exchange, the State was able to establish that
Schroeder and his fiancée had been regularly taking turns buying
pseudoephedrine, a key ingredient in methamphetamine, for at least one year.
“Since a conspiracy is by nature clandestine, it will often rest upon circumstantial
evidence and inferences drawn from that evidence.” State v. Corsi, 686 N.W.2d
215, 219 (Iowa 2004). “Circumstantial evidence includes the declarations and
conduct of the alleged conspirators . . . .” State v. Speicher, 625 N.W.2d 738,
742 (Iowa 2001). “Importantly, an agreement need not be—and often times is
not—formal and express.” Id.
Here, viewing the evidence in the light most favorable to the State, there is
sufficient evidence to support a conviction for conspiracy to manufacture
methamphetamine. Additionally, there is sufficient evidence that Schroeder
conspired to manufacture “[m]ore than five grams . . . of methamphetamine . . .
or any compound, mixture, or preparation which contains any quantity or
detectable amount of methamphetamine.” See Iowa Code § 124.401(1)(b)(7).
The lab report prepared by the DCI, which was admitted into evidence,
concluded Schroeder had enough pseudoephedrine to produce a “theoretical
yield” of 5.52 grams of methamphetamine. See State v. Casady, 597 N.W.2d
801, 807 (Iowa 1999) (affirming the defendant’s conviction for conspiracy to
manufacture methamphetamine in the amount of more than five grams based on
the laboratory report estimating the possible yield from the recovered 12
precursors). Additionally, three of the liquids recovered during the search
contained a compound or mixture of methamphetamine and had net weights of
328.1 grams, 332.1 grams, and 172.1 grams.
Because there is sufficient evidence to support a conviction for conspiracy
to manufacture more than five grams of methamphetamine, the district court did
not err in denying Schroeder’s motion for judgment of acquittal.
2. Possession of Anhydrous Ammonia with Intent to Manufacture
Methamphetamine: Schroeder maintains the district court erred in denying his
motion for judgment of acquittal regarding the charge for possession of
anhydrous ammonia with intent to manufacture methamphetamine because “the
tank was never tested to determine if the unknown liquid in the tank was in fact
anhydrous ammonia.”
At trial, Officer Ostrander testified that he was initially suspicious of the
tanks because “[a]nhydrous ammonia attacks metals aggressively and it leaves,
like, a bluish corrosion. And the necking on both of those tanks had the
corrosions from what I—you know, consistent with what I have seen in the past
with anhydrous.” Because of his suspicion, the officer released the valve on the
tank that was still under pressure, and when doing so, he smelled anhydrous
ammonia. He testified that in the course of his employment he has “been
exposed to it, I’ve witnessed it, and I’ve smelled it in the past.” Although there
was no official testing done of the contents of the tank, viewing the evidence in
the light most favorable to the State, the officer’s testimony is enough to establish
that it was anhydrous in the tank. As such, the district court did not err in denying
Schroeder’s motion for judgment of acquittal. 13
C. Ineffective Assistance of Counsel
Schroeder maintains Officer Ostrander testified inconsistently regarding
the purported anhydrous ammonia in the tank and his trial counsel was
ineffective for failing to impeach the officer. Schroeder maintains that at his trial,
Officer Ostrander testified he released the valve on the pressurized tank and
identified the contents to be anhydrous ammonia but Officer Ostrander testified
at the suppression hearing that “the contents were rainwater.”
At the suppression hearing, the following exchange took place during
direct examination of Officer Ostrander:
Q: Were you—did you attempt to release the valve on the tank to expose what type of liquid might be inside? A: I attempted to, yes, open the valve to see if it was under pressure. Q: And what—did you find that it was under pressure? A: Yes, sir. Q: Was there any discharge from the tank when you opened the valve? A: There was a liquid that came out but it was believed to be maybe just rainwater that was sitting in the—I guess, in the neck of that—that valve. Q: So there was a discharge that you believe was water? A: As far as the liquid. But the odor and the chemical component was consistent with anhydrous ammonia.
Schroeder’s claim of ineffective assistance is based on a misstatement of
the record. As such, trial counsel had no duty to impeach the officer or confront
him with his inconsistent statements. See State v. Graves, 668 N.W.2d 860, 881
(Iowa 2003) (“Trial counsel has no duty to raise an issue that has no merit.”); cf.
Driscoss v. Delo, 71 F.3d 701, 711 (8th Cir. 1995) (holding that “counsel’s failure
to impeach [an eyewitness] was a breach with so much potential to infect other
evidence that, without it, there is a reasonable probability that the jury would find
a reasonable doubt of [the defendant’s] guilt”). Because Schroeder cannot 14
establish that counsel failed to perform an essential a duty, his claim of
ineffective assistance fails. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa
2008) (“We may affirm . . . if either element is lacking.”).
IV. Conclusion
Because we do not have the warrant application or the warrant as part of
our record, we are unable to consider Schroeder’s claim regarding his motion to
suppress evidence obtained while officers executed a search warrant in his
home. Sufficient evidence supports Schroeder’s convictions for conspiracy to
manufacture more than five grams of methamphetamine and possession of
anhydrous ammonia with intent to manufacture methamphetamine, so the district
court did not err in denying his motions for judgment of acquittal. Schroeder’s
claim that trial counsel was ineffective fails. We affirm.
AFFIRMED.