IN THE COURT OF APPEALS OF IOWA
No. 17-0622 Filed October 10, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
JUSTIN ANDRE BAKER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Justin Baker appeals his convictions and sentences for multiple offenses.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Heard by Vogel, P.J., Tabor, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018). 2
VOGEL, Presiding Judge.
Justin Baker appeals his convictions and sentences for possession with
intent to deliver marijuana, failure to affix a drug tax stamp, driving while barred
(two counts), and possession of marijuana, second offense.1 He argues the district
court erred in denying his motion to suppress, his counsel was ineffective for failing
to file another motion to suppress, and the district court abused its discretion in
imposing his sentence. We find the court properly denied the motion to suppress,
he has not shown prejudice resulted from his counsel’s failure to file a second
motion, and the court adequately explained its reasoning for imposing his
sentence. Accordingly, we affirm.
I. Background Facts and Proceedings
On August 30, 2015, Investigator Michael Girsch with the Waterloo Police
Department2 received a call from a law enforcement official in the state of Nevada.
The official told Investigator Girsch they had stopped a vehicle containing three
persons from Waterloo, including Baker. Nevada officials arrested all three
persons after finding a distributional quantity of marijuana and other items in the
vehicle. Investigator Girsch testified Baker was “on our radar” after he received
the call. Nevada officials never charged Baker after his arrest.
In early April 2016, Investigator Girsch was conducting surveillance on an
unrelated matter in plain clothes near Ricker Street in Waterloo. He noticed Baker
1 As will be explained later in the opinion, these charges were docketed under three separate case numbers: FECR 213018, possession with intent to deliver marijuana, and failure to affix a drug tax stamp; AGCR 212970, driving while barred, and possession of marijuana, second offense; and AGCR 215793, driving while barred. 2 Investigator Girsch testified he began working for the Waterloo Police Department in 2008 and he joined the area Drug Enforcement Task Force about three-and-one-half years prior to trial. 3
driving a vehicle and apparently preparing to pull into the driveway at a house.
Baker then appeared to notice the investigator, and he continued driving past the
house. Investigator Girsch testified he “stuck out in that neighborhood” despite
wearing plain clothes and “it doesn’t take a rocket scientist to figure out who a cop
is in certain neighborhoods.” Investigator Girsch circled the block and set up in a
different location. He eventually observed Baker drive toward the house again,
park in its driveway, and enter the house.
On April 18, 2016, Investigator Matthew Isley with the Black Hawk County
Sheriff’s Office3 received an anonymous call regarding Baker and his niece Shana
Caldwell. The caller said Baker and Caldwell were living in the Ricker Street house
that Investigator Girsch previously saw Baker enter. The caller also said the house
contained a lot of marijuana and the two had just returned from out of town with a
shipment of more marijuana.
After receiving the anonymous call, Investigator Isley began watching the
Ricker Street house. He saw Baker enter the house, exit about twenty minutes
later, and drive away. Investigator Isley followed Baker’s vehicle. He soon
observed Baker’s vehicle stop in an alley, where another man put his hand in the
vehicle’s open passenger window and then immediately removed his hand and put
it in his pocket. Investigator Isley testified he sees hand-to-hand narcotics
transactions “almost daily” in his line of work and the events in the alley were
consistent with a hand-to-hand narcotics transaction.
3 Investigator Isley testified he attended the Iowa Law Enforcement Academy in 2003, and he subsequently worked in the jail and as a road deputy before joining the area Drug Enforcement Task Force two-and-one-half years prior to trial. 4
Investigator Isley then asked for a police officer to stop Baker’s vehicle as
part of their investigation into illegal narcotics activity. Sergeant Steven Bose with
the Waterloo Police Department responded, identified Baker’s vehicle, and
activated his emergency lights. With the emergency lights directed at him, Baker
continued to slowly drive for about one half-block, turned onto another street, and
slowly drove for about another quarter-block before stopping. When Baker’s
vehicle turned, Sergeant Bose saw an object thrown out the driver’s window. Once
stopped, Sergeant Bose placed Baker in handcuffs and recovered the thrown
object, which he determined was a small bag of marijuana. Baker had $200 in
twenty-dollar bills in his pocket, but officials found nothing else significant on his
person or in the vehicle.
Investigator Girsch testified they decided to apply for a search warrant for
the Ricker Street house after the traffic stop. He testified he was concerned Baker
had alerted someone at the house to destroy evidence while he continued driving
a “slow roll” before eventually stopping his vehicle. According to Investigator
Girsch, oftentimes when law enforcement stops a drug offender’s vehicle, “if they
have a stash house or something like that, they will slow roll and try to get a text
or call off for people to get rid of that evidence in that residence.” Before writing
the search warrant application, officials performed a protective sweep of the house
looking for weapons and persons. During the sweep, officials saw a digital scale
and a bag of marijuana in plain sight, and they noted the odor of fresh marijuana
throughout the home. After the sweep, Investigator Isley wrote and submitted the
application for the search warrant. The application included a five-page affidavit
setting forth supporting facts, including the Nevada arrest, Investigator Girsch’s 5
observation of Baker’s hesitation and avoidance behavior before entering the
Ricker Street house, the anonymous call, the suspected hand-to-hand narcotics
transaction, the bag of marijuana thrown during the traffic stop, and observations
made during the sweep. The district court issued the search warrant later that day.
Items found during the search included a digital scale, multiple bags of marijuana,
miscellaneous packaging including both new and used empty small plastic bags,
and various items containing marijuana residue.
On May 17, 2016, the State filed a trial information charging Baker with
possession of a controlled substance—marijuana, second offense and driving
while barred as a habitual offender. See Iowa Code §§ 124.401(5), 321.561
(2016). The charges were filed in case number AGCR212970. On May 18, the
State filed a second trial information charging Baker and Caldwell with possession
of a controlled substance with intent to deliver and a drug tax stamp violation. See
id. §§ 124.401(1)(d), 453B.12. The charges against Baker were filed in case
number FECR213018. On November 2, the State filed a third trial information
charging Baker with driving while barred as a habitual offender, related to his
actions on September 28, in case number AGCR215793.
On August 9, 2016, Baker filed a motion to suppress evidence for case
number FECR213018, and he moved to join a similar motion filed by Caldwell. On
September 12, the district court held a hearing on the motions. At the hearing, the
parties clarified the motions challenged the bases for the stop of Baker’s vehicle,
the protective sweep of the house, and the warrant to search the house.
On September 23, 2016, the district court issued its ruling on the motions
to suppress. First, the court considered the basis for the investigatory traffic stop: 6
Under a totality of the circumstances view, the Court finds the stop of Baker’s vehicle was supported by a reasonable suspicion of criminal activity. At the time of the stop, officers had received the anonymous tip indicating Baker and Caldwell recently received a “distributional amount” of narcotics through an anonymous tip as well as prior notification by Nevada law enforcement Baker had been arrested for possession of a large quantity of marijuana. This information, in addition to Investigator lsley’s observation of what he believed to be a hand-to-hand narcotics transaction, provided sufficient facts to alert experienced officers to a reasonable suspicion of criminal activity, namely the sale or distribution of narcotics. The suspicion of criminal activity was confirmed when Baker attempted to dispose of marijuana before stopping his vehicle. Given the Court’s finding the stop was reasonable any suppression issues related to the stop are denied.
Second, the court found no exigent circumstances to support the protective sweep,
and it suppressed evidence obtained in the sweep. Third, the court considered the
basis for the search warrant of the house. Because the court suppressed evidence
from the protective sweep, the court excised this evidence from the warrant
application; however, the excised information only amounted to three paragraphs
of the five-page affidavit. The remaining information in the application included
Baker’s arrest in Nevada, his hesitation to enter the house while Investigator
Girsch watched him, the suspected hand-to-hand narcotics transaction, and the
bag of marijuana Baker tossed out the car window. The court rejected the
argument that the warrant application contained falsities because it failed to
mention Baker was not charged by Nevada officials and Investigator Girsch wore
plain clothes when he saw Baker hesitate to enter the house. Accordingly, the
court found probable cause to support the warrant application, and it denied
suppression issues related to the warrant and ensuing search.
On January 24, 2017, Baker and Caldwell proceeded to a jury trial on case
number FECR213018. The jury found both defendants guilty of possession of 7
marijuana with intent to deliver and a drug tax stamp violation. On April 17, Baker
pled guilty to possession of a controlled substance—marijuana, second offense,
and two counts of driving while barred as a habitual offender from the other two
proceedings. Also on April 17, the court entered judgment and sentence for each
of the three proceedings. In addition to imposing and suspending fines and
surcharges, the court imposed the following terms of incarceration: five years for
possession of marijuana with intent to deliver, five years for the drug tax stamp
violation, one year for possession of a controlled substance—marijuana, second
offense, and one year for each of the two counts of driving while barred. All terms
of incarceration were to be served concurrently.
Baker now appeals. He argues the district court erred in denying his motion
to suppress, his counsel was ineffective for failing to file a motion to suppress in
case number AGCR212970, and the court abused its discretion in imposing his
sentences.
II. Standard of Review
“We review the denial of a motion to suppress on constitutional grounds de
novo.” State v. Ingram, 914 N.W.2d 794, 798 (Iowa 2018). “We review claims of
ineffective assistance of counsel de novo.” State v. Clay, 824 N.W.2d 488, 494
(Iowa 2012). When a sentence is within the statutory limits, we review challenges
to the sentence for abuse of discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa
2015).
III. Motion to Suppress
Baker argues the district court erred in denying the motion to suppress
evidence from both the investigatory stop and the search of the Ricker Street 8
house. Specifically, he argues the investigatory stop was not supported by
reasonable suspicion, and the search warrant for the house was not supported by
probable cause. Baker raises his arguments under the Fourth Amendment of the
United States Constitution and article I, section 8 of the Iowa Constitution.
A. Investigatory stop
Law enforcement stopped Baker’s vehicle in order to investigate ongoing
illegal narcotics activity. An officer may make a warrantless stop of “an individual
or vehicle for investigatory purposes based on a reasonable suspicion that a
criminal act has occurred or is occurring.” State v. Kreps, 650 N.W.2d 636, 641
(Iowa 2002); see also Terry v. Ohio, 392 U.S. 1, 21–22 (1968). “Our decisions
have universally held that the purpose of a Terry stop is to investigate crime.” State
v. Tyler, 830 N.W.2d 288, 293 (Iowa 2013); see also State v. Vance, 790 N.W.2d
775, 780 (Iowa 2010) (“The principal function of an investigatory stop is to resolve
the ambiguity as to whether criminal activity is afoot.”). “To justify an investigatory
stop, the officer must be able to point to ‘specific and articulable facts, which taken
together with rational inferences from those facts, reasonably warrant that
intrusion.’” Kreps, 650 N.W.2d at 641 (quoting State v. Heminover, 619 N.W.2d
353, 357 (Iowa 2000)). “The circumstances under which the officer acted must be
viewed ‘through the eyes of a reasonable and cautious police officer on the scene,
guided by his experience and training.’” Id. at 642 (quoting United States v. Hall,
525 F.2d 857, 859 (D.C. Cir. 1976)). “Whether reasonable suspicion exists for an
investigatory stop must be determined in light of the totality of the circumstances
confronting a police officer, including all information available to the officer at the
time the decision to stop is made.” Id. 9
The parties disagree about the time to determine whether reasonable
suspicion existed. The State asserts the reasonable-suspicion determination
includes everything the officials knew at the time Baker fully acquiesced to
authority by stopping his vehicle; accordingly, his actions in throwing a bag of
marijuana out of his vehicle while slowly coming to a stop after Sergeant Bose
activated his emergency lights contribute toward reasonable suspicion for the
investigatory stop. However, our supreme court has declared the reasonable
suspicion determination for an investigatory traffic stop includes “all information
available to the officer at the time the officer makes the decision to stop the
vehicle.” State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004) (emphasis added). At
the time Sergeant Bose activated his emergency lights, law enforcement officials
had already made the decision to stop Baker’s vehicle. See id. Therefore, we
cannot consider Baker’s actions after activation of the emergency lights, including
him throwing a bag of marijuana out the window while he slowly stopped, in
determining whether reasonable suspicion existed.
Before the stop of Baker’s vehicle, Investigator Isley believed he had
engaged in criminal activity, specifically the possession of marijuana with intent to
deliver, which is a felony. See Iowa Code § 124.401(1)(d). Investigator Isley
decided to stop Baker after he witnessed a suspected hand-to-hand narcotics
transaction. He knew several facts at the time he made this decision: (1) Baker’s
actions were consistent with the hand-to-hand narcotics transactions he knew from
personal experience and training; (2) an anonymous caller reported Baker had just
returned from out of town with a large shipment of marijuana and there was a large
quantity of marijuana in the Ricker Street house; (3) Baker left the Ricker Street 10
house immediately before the suspected hand-to-hand narcotics transaction; (4)
Investigator Girsch recently witnessed Baker hesitating then attempting to avoid
being seen entering the house; and (5) Baker was arrested in Nevada several
months prior when officials there found him and a large quantity of marijuana in
the same vehicle. As someone with more than ten years of law enforcement
experience, including more than two years serving on the area Drug Enforcement
Task Force, Investigator Isley knew these facts were indicative of illegal narcotics
activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002) (stating a totality-
of-the-circumstances review may consider the officers’ “experience and
specialized training to make inferences from and deductions about the cumulative
information available to them”); see also State v. Pals, 805 N.W.2d 767, 774 (Iowa
2011) (“[I]f police have a reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in or is wanted in connection with
a completed felony, then a Terry stop may be made to investigate that suspicion.”
(quoting United States v. Hensley, 469 U.S. 221, 229 (1985)). When viewing the
totality of the circumstances, we, like the district court, find these facts create more
than a mere suspicion of criminal activity. See Tague, 676 N.W.2d at 204.
Therefore, reasonable suspicion supported the stop of Baker’s vehicle, and the
district court did not err in denying the suppression of evidence from the stop.
Baker and the dissent argue none of these individual facts create a
reasonable suspicion of illegal activity. We agree that none of the facts, standing
alone, generates reasonable suspicion justifying an investigatory stop. However,
our supreme court has directed us to consider “the totality of the circumstances”
when evaluating whether reasonable suspicion exists to justify an investigatory 11
stop. Kreps, 650 N.W.2d at 641–42. Reasonable suspicion requires “considerably
less than proof of wrongdoing by a preponderance of the evidence.” Id. at 642.
(quoting State v. Richardson, 501 N.W.2d 495, 496–97 (Iowa 1993)). “One of the
most common situations in which investigatory stops occur is direct police
observation of suspicious conduct.” Id. at 643. Despite any weakness in any of
the facts standing alone, we find the totality of all circumstances when viewed with
Investigator Isley’s experience in drug enforcement generates reasonable
suspicion to justify the investigatory stop of Baker’s vehicle. See State v. Bumpus,
459 N.W.2d 619, 624 (Iowa 1990) (finding that, although law enforcement lacked
probable cause to arrest after witnessing a suspected narcotics transaction, all
factors known to the officers created “reasonable and articulable cause for
suspicion that criminal activity was taking place” to justify an investigatory stop).
B. Search warrant
A search warrant must be supported by probable cause. State v. McNeal,
867 N.W.2d 91, 99 (Iowa 2015). “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.’” State v. Gogg, 561
N.W.2d 360, 363 (Iowa 1997) (quoting United States v. Edmiston, 46 F.3d 786,
789 (8th Cir. 1995)). “The issuing judge ‘is simply to make a practical, common-
sense decision whether, given all the circumstances set forth in the affidavit before
him, including the “veracity” and “basis of knowledge” of persons supplying
hearsay information,’ probable cause exists.” Id. (quoting Illinois v. Gates, 462
U.S. 213, 238 (1983)). “In doing so, the judge may rely on ‘reasonable, common 12
sense inferences’ from the information presented.” Id. (quoting State v. Green,
540 N.W.2d 649, 655 (Iowa 1995)).
All of the facts providing reasonable suspicion for the stop of Baker’s vehicle
also support the search warrant. Additionally, because the stop of his vehicle was
proper as explained above, his actions in slowly stopping and throwing a bag of
marijuana out his vehicle also support the issuance of the search warrant. See
State v. McGrane, 733 N.W.2d 671, 680 (Iowa 2007) (explaining evidence must
be suppressed under the exclusionary rule if the evidence was “discovered as a
result of illegal government activity”). These facts provide probable cause to
support the search warrant. See id.
Baker also argues the search warrant is invalid because its supporting
affidavit contains false statements.4 Specifically, he notes the affidavit mentions
the Nevada arrest but does not mention he was never charged or convicted
following the arrest, and he notes the affidavit mentions Investigator Girsch
observed him hesitate to enter the Ricker Street house but does not mention
Girsch wore plain clothes at the time.
To invalidate the affidavit, the defendant must show the affiant included a
“deliberate falsehood” or acted with “reckless disregard for the truth.” Groff, 323
4 In its brief, the State argued Baker waived any argument on the affidavit’s validity because he did not follow the proper procedure before the district court. Ordinarily, a defendant must make a preliminary showing of falsity in the affidavit before reaching an evidentiary hearing. State v. Groff, 323 N.W.2d 204, 209 (Iowa 1982) (citing Franks v. Delaware, 438 U.S. 154, 171–72 (1978)). While Baker made no such preliminary showing, his co-defendant raised the affidavit’s validity and the district court squarely ruled on the issue when denying the motions to suppress. At oral argument, the State acknowledged it never questioned the procedure used to challenge the affidavit’s validity before the district court and it had therefore waived any argument Baker failed to follow the proper procedure to challenge the affidavit’s validity. See Groff, 323 N.W.2d at 209. 13
N.W.2d at 209 (quoting Franks, 438 U.S. at 171–72). “Allegations of negligence
or innocent mistake are insufficient.” Id. (quoting Franks, 438 U.S. at 171–72). “A
‘false’ affidavit statement is one which misleads the magistrate into believing the
existence of certain facts which enter into his thought process in evaluating
probable cause.” Id. at 210. Baker does not point to any explicitly incorrect
statements in the affidavit; instead, he notes the affidavit does not say he was not
charged or convicted following the Nevada arrest and it does not note Investigator
Girsch wore plain clothes when he saw Baker hesitate to enter the Ricker Street
house. Baker has presented no evidence the affiant, Investigator Isley,
deliberately obfuscated by omitting these facts. Nor has Baker shown a reckless
disregard for the truth that would mislead a magistrate who is familiar with criminal
investigations. The affidavit correctly said Baker was arrested in Nevada, and it
was not reckless to not also specify he had not been charged or convicted following
the arrest. The affidavit also clearly identified Investigator Girsch as an investigator
with the local drug enforcement task force who was conducting an investigation at
the time he witnessed Baker hesitate to enter the house. Investigator Girsch
testified he was identifiable as law enforcement despite wearing plain clothes and
he believed Baker recognized him as such. Accordingly, it was not reckless to not
also specify Investigator Baker wore plain clothes. Therefore, the affidavit did not
contain false statements. See id.
Furthermore, even if the affidavit contains false statements, those falsities
invalidate the warrant only if the warrant lacks probable cause without those
challenged statements. Id. at 209. Setting aside the challenged statements, the
warrant is still supported by the anonymous call and the observations of law 14
enforcement that Baker left the Ricker Street house, engaged in a suspected hand-
to-hand narcotics transaction, and tossed a bag of marijuana while slowly coming
to a stop after Sergeant Bose activated his emergency lights. These unchallenged
statements provide probable cause to support the affidavit.
IV. Ineffective Assistance
Baker next argues his counsel was ineffective for failing to file a motion to
suppress in case number AGCR212970.5 A successful ineffective-assistance-of-
counsel claim requires proving “(1) counsel failed to perform an essential duty; and
(2) prejudice resulted.” Clay, 824 N.W.2d at 495. Prejudice resulted if, “but for the
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 496. Baker’s counsel filed a motion to suppress in case number
FECR213018, and he argues his counsel should have filed the same motion in
case number AGCR212970. As explained above, the court did not err in denying
the motion to suppress for FECR213018. Therefore, he cannot show prejudice
resulting from his counsel’s failure to file the same motion to suppress for
AGCR212970.
V. Sentencing
Finally, Baker argues the district court abused its discretion in imposing his
sentence because the court did not fully explain its reasons for the sentence.
When imposing a sentence, the district court must provide “a statement of reasons
on the record.” State v. Thacker, 862 N.W.2d 402, 408. “[A] ‘terse and succinct’
5 Baker was initially assisted by separate counsel in FECR213018 and AGCR212970. After his motion to suppress was denied, counsel in FECR213018 took over the representation of Baker in AGCR212970. On appeal, Baker does not specify which counsel was ineffective in failing to file a motion to suppress in AGCR212970. 15
statement may be sufficient, ‘so long as the brevity of the court’s statement does
not prevent review of the exercise of the trial court’s sentencing discretion.’” Id.
(quoting State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989)). At the sentencing
hearing, the district court provided the following explanation to Baker:
I have chosen to run these matters concurrent because as I said they are serious matters. . . . They are serious matters no matter how we look at it, but I don’t think they’re so serious as to warrant a stacking of these matters . . . . I just don’t see it as being that critical. I have chosen not to go with the recommendation by your attorney to place you at the residential facility because as I have said, you have been to prison once and here it is six years later and you’re still doing this. You’re still doing drugs or at least you were doing drugs, so apparently all of the treatment modalities that your attorney pointed out a short while ago didn’t work because here you are.
This explanation is adequate for our review. Baker notes the court did not discuss
all of the factors of sentencing. See State v. Formaro, 638 N.W.2d 720, 725 (Iowa
2002) (stating the factors of sentencing include “the nature of the offense, the
attending circumstances, the age, character and propensity of the offender, and
the chances of reform”). However, the court is not required to explicitly address
every factor. See State v. Boltz, 542 N.W.2d 9, 11 (Iowa 1995) (“[T]he failure to
acknowledge a particular sentencing circumstance does not necessarily mean it
was not considered.”). We find no abuse of discretion in Baker’s sentence.
VI. Conclusion
The district court properly denied Baker’s motion to suppress, and no
prejudice resulted from his counsel’s failure to file a similar motion to suppress in 16
a related proceeding. Additionally, the district court did not abuse its discretion in
imposing his sentence.
Carr, S.J., concurs; Tabor, J., dissents. 17
TABOR, Judge (dissenting)
I respectfully dissent. The district court should have granted Baker’s motion
to suppress evidence found during an investigatory stop of his vehicle and a
warranted search of his residence.
Courts review investigatory stops based on the totality of the circumstances.
The United States Supreme Court has warned against a “divide-and-conquer
analysis” where reviewing courts assign no weight to facts susceptible to innocent
explanations when deciding if the police had reasonable suspicion. United States
v. Arvizu, 534 U.S. 266, 274 (2002). But here, the problem is not that the officers’
articulated facts appear innocuous if considered separately. The State’s case is
weak because the combined circumstances did not generate reasonable suspicion
for an investigatory stop. Rather than just discouraging a divide-and-conquer
inquiry, the State essentially advances an amass-and-aggrandize approach to the
suppression challenge.
To that end, the State alleges reasonable suspicion to stop Baker arose
from “five separate incidents”:
1) a few months before his Iowa arrest, state law enforcement in Nevada reported to the Tri-County Drug Enforcement Task Force that they arrested [Baker] for trafficking marijuana through the state; 2) About two weeks prior to his arrest, [Baker] acted suspiciously and evaded Investigator Girsch when he noticed that Girsch was parked near 702 Ricker Street; 3) an anonymous caller informed the Tri- County Drug Enforcement Task Force that they had recently been inside 702 Ricker Street, stated [Baker] had a lot of marijuana, and believed he was selling it; 4) Investigator Isley witnessed a hand-to- hand drug transaction involving [Baker]; and 5) After Sergeant Bose initiated the traffic stop but before [Baker] acquiesced to the show of authority, [Baker] threw a bag of marijuana out of his car window, which was recovered by Sergeant Bose. 18
Let’s start with the fifth “incident” cited by the State. The majority correctly
concludes Officer Bose’s assertion Baker threw a baggie of marijuana from the car
did not support the reasonable-suspicion calculus. Baker allegedly threw the
baggie after the officer signaled him to stop. So we are left with four facts to
consider in our calculus.
Turning to the first incident, seven months before the Iowa stop at issue,
investigator Michael Girsch received a call from a trooper who arrested Baker
following a traffic stop in the state of Nevada. The trooper alleged Baker was one
of three occupants in a vehicle transporting “a large distribution quantity of
marijuana.” According to Girsch, receiving that information put Baker “on our
radar.” Although the Nevada trooper shared the arrest information with Iowa
authorities, for reasons not revealed in our record, Nevada prosecutors did not
pursue criminal charges against Baker. Given the staleness of the Nevada
information and the unverified aspect of Baker’s participation, this incident does
nothing more than tag Baker as a person of interest for the drug-enforcement task
force to monitor.
The second incident occurred in early April. Driving an unmarked car,
Investigator Girsch was conducting surveillance for an unrelated investigation
when he noticed Baker
traveling in the 700 block of Ricker Street. It appeared he was going to pull into a driveway and then observed me sitting, . . . and to me it looked like he saw me and may have gotten scared or something, continued to drive past a residence, which I thought it looked like he was going to pull into.
The State describes Baker’s action as “evading” Investigator Girsch. That is an
exaggeration. Girsch did not signal Baker to stop. Thirty seconds later, after 19
Girsch circled the block, he saw Baker pull into the original driveway. A generous
interpretation of Girsch’s perception suggests Baker wanted to avoid interaction
with an undercover officer. Even assuming Girsch accurately read Baker’s
behavior as skittish in early April, that action contributed no significant weight to
the investigators’ reasonable suspicion—more than a week later—that evidence
of a crime could be discovered by stopping Baker’s car.
The third incident happened the day of the stop. At the task force office,
Investigator Matt Isley reportedly fielded a telephone call from an anonymous
person claiming to have seen a large amount of marijuana inside Baker’s
residence in the previous few days. The caller alleged Baker and his niece just
“got back into town with a shipment of more marijuana.” In response to the call,
Investigator Isley went to surveil the Ricker Street house. He saw Baker enter and
leave about twenty minutes later in a blue Buick. But Isley did not provide any
details corroborating the anonymous tip. And nobody on the task force knew or
tried to find the identity of the caller.
“An anonymous tip alone seldom demonstrates the informant’s basis of
knowledge or veracity.” Florida v. J.L., 529 U.S. 266, 270 (2000) (noting in some
situations a suitably corroborated anonymous tip may exhibit “sufficient indicia of
reliability to provide reasonable suspicion to make the investigatory stop” (quoting
Alabama v. White, 496 U.S. 325, 329 (1990))). Baker argues no such indicia of
reliability appear in his case. The anonymous caller was reporting criminal
behavior concealed from public view. Neither the State nor the majority even try
to distinguish this situation from J.L, instead falling back on the totality-of-the-
circumstances principle. The uncorroborated, anonymous tip received by 20
Investigator Isley is not reliable enough to bolster a reasonable-suspicion finding,
even viewed along with the other evidence.
The fourth incident quickly followed the initial surveillance. Investigators
Girsch and Isley tailed Baker in separate unmarked cars. Girsch saw Baker turn
into an alley. Girsch testified:
As I passed by the alley I glanced over, saw the Buick stopped talking to one or two individuals in the alley. I continued past and then Investigator Isley was probably right behind me or close to and he soon radioed that he observed a hand-to-hand transaction with the subject driving the blue Buick and then the people standing outside the vehicle.
Investigator Isley testified that as he was driving by he could see “a black male
stick his, I believe it would have been his right hand into the passenger window
and immediately pull it back out and stick it into his right pocket.”
At the suppression hearing, the prosecutor asked Investigator Isley if what
he saw was consistent with a “hand-to-hand narcotics transaction.” Isley answered
“yes.” He testified in his line of work he saw narcotics transactions occur hand to
hand “multiple times a day.” Or depending on what the task-force officers are
doing—“almost daily probably.” On cross examination, Isley acknowledged he
could not see any object—neither drugs nor cash—change hands. Isley agreed it
could have “quite possibly” been just a handshake.
The majority credits Investigator Isley’s experience in witnessing hand-to-
hand narcotics transactions as the lynchpin for upholding the investigatory stop.
But as the saying goes, “it is tempting, if the only tool you have is a hammer, to 21
treat everything as if it were a nail.”6 In the seconds Isley had to glance down the
alley as he drove by, he did not actually see a hand-to-hand exchange. Isley
asserts someone reached into the passenger window of Baker’s car and then
placed his hand in his pocket. Isley assumed he witnessed a drug exchange
because he alleges he sees such interactions “almost daily” or even “multiple times
a day.”
The investigators did not testify the alley was a known drug-trafficking area.
And even if they had, “[t]he fact that an exchange of an item occurs in a drug-prone
location and that it is observed by an experienced narcotics officer does not,
without more, give rise to probable cause or reasonable suspicion.” People v.
Reeves, No. 2015BX025259, 2018 WL 560239, at *3 (N.Y. Crim. Ct. Jan. 26,
2018); see also People v. Ocampo, 879 N.E.2d 353, 363–64 (Ill. App. 2d Dist.
2007) (holding defendant’s observed actions, including taking something from his
pocket during short conversation with driver, “even when taken together, are
simply far too common, without more, to give rise to a reasonable suspicion versus
only a hunch of criminal activity”). The State relies on State v. Roberts, No. 09-
0590, 2010 WL 1050078, at *4 (Iowa Ct. App. Mar. 24, 2010), where our court said
it was “not of consequence” that a detective “did not see drugs as a part of the
hand to hand exchange.” But Roberts involved a controlled drug buy just before
the hand-to-hand exchange. See id. No similar facts accompanied Baker’s
encounter in the alley.
6 This quote is originally attributed to Abraham Maslow, Toward a Psychology of Being (1968). 22
After Baker left the alley, the task-force investigators arranged for a
uniformed officer to pull him over. Officer Bose stopped Baker based on the four
incidents outlined above. Even amassed and aggrandized, those circumstances
are too unsubstantiated to provide reasonable suspicion to believe evidence of
criminal activity could be found on Baker or in his Buick at the time of the stop.
Granted, reasonable suspicion “is a less demanding standard than probable cause
and requires a showing considerably less than preponderance of the evidence.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). But police officers must be able to
point to “specific and articulable facts” measured against an objective standard to
justify their “particular intrusion” upon a citizen. Terry v. Ohio, 392 U.S. 1, 21–22
(1968). In other words, we ask if the facts available to the officer at the moment of
seizure would warrant a reasonably cautious person to believe the officer took
appropriate action.
In Baker’s case, a reasonably cautious person would have expected
investigators to justify their seizure of Baker with more confirmed suspicions. The
investigators based their stop on (1) a seven-month old phone call from Nevada,
(2) a week-old, perceived, momentary avoidance of an undercover officer, (3) an
anonymous call—unrelated to any surrounding circumstances, and lacking any
corroboration, and (4) an alleged “hand-to-hand” transaction where the officer
could see neither objects nor hands. Even packaged together, these four facts do
not rise to reasonable suspicion.
Consideration of the totality of the circumstances allows courts to view
seemingly innocuous facts in light of surrounding circumstances, allowing insight
into why a fact may not be so innocuous after all. For example—a parked car may, 23
at first glance, seem innocuous. But the totality of the circumstances may
illuminate the reasonable suspicion: the parked car was in a non-residential area
with no legitimate attractions at 12:40 a.m., a time when all surrounding businesses
were closed, in an area previously burglarized on several occasions—and just
when the officer begins approaching the car, the parked car pulls away. See State
v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993). While any one of those facts
alone seems harmless, viewed together, they give rise to a reasonable suspicion
criminal activity is afoot. See id. Courts may consider the totality of the
circumstances to reach the sum of reasonable suspicion. But here, the separate
facts contribute nothing to the whole. We cannot consider the totality of the
circumstances when the total is zero.
Even if we could assume reasonable suspicion existed that Baker was
involved in drug dealing, the State did not establish the purpose of stopping his
car. Investigatory stops allow law enforcement to resolve ambiguities regarding
potential criminal activity. State v. Tyler, 830 N.W.2d 288, 298 (Iowa 2013)
(quoting 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 9.3(a) (5th ed. 2012)). “If reasonable suspicion exists, but a stop
cannot further the purpose behind allowing the stop, the investigative goal as it
were, it cannot be a valid stop.” Id. (quoting LaFave, supra, at § 9.3(a)). Here we
must ask: what ambiguity did Officer Bose aim to resolve in stopping Baker? If
Investigator Isley believed he witnessed a “hand-to-hand” drug transaction in the
alley, what did he hope to learn from a limited seizure of Baker based on
reasonable suspicion? The anonymous tipster alleged Baker had drugs in his
home but spoke nothing of his vehicle. So even if credible, the tip did not illuminate 24
expected fruits of the investigatory stop. Officers did not surveil Baker’s residence
long enough to detect any pattern of activity. Additionally, if investigators believed
Baker distributed marijuana to a buyer during the “hand-to-hand” transaction—
without information suggesting Baker possessed more drugs in his vehicle and
intended to conduct more drug deals—an investigatory stop served no purpose,
and thus cannot be valid under the Fourth Amendment or article I, section 8.
Because the investigatory stop was unsupported by reasonable suspicion
and not conducted for a legitimate purpose, any evidence Baker allegedly
discarded marijuana was a fruit of the illegal stop and unavailable for the search
warrant application. See State v. McGrane, 733 N.W.2d 671, 681 (Iowa 2007).
Without that evidence, the State lacked probable cause for the search warrant.
The remaining information in the warrant application did not rise to the level of
probable cause to search. The district court should have granted the motion to
suppress.