IN THE SUPREME COURT OF IOWA No. 07–0691
Filed January 30, 2009
STATE OF IOWA,
Appellee,
vs.
BRANDON MONTRESE BROOKS,
Appellant.
Appeal from the Iowa District Court for Scott County, Nancy S.
Tabor (suppression ruling) and J. Hobart Darbyshire (trial and
sentencing), Judges.
Defendant appeals criminal conviction alleging that evidence
obtained after a warrantless entry of a motel room should have been
suppressed. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Jason B. Shaw,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Michael J. Walton, County Attorney, Kelly G.
Cunningham and Robert E. Weinberg, Assistant County Attorneys, for
appellee. 2
APPEL, Justice.
Brandon Brooks appeals his convictions for drug-related offenses.
He argues that the district court improperly failed to suppress evidence
obtained after law enforcement officers conducted a warrantless entry
into a motel room. For the reasons expressed below, we affirm the ruling
of the district court.
I. Factual and Procedural Background.
On March 18, 2006, the manager of the Motel 6 in Davenport, Iowa
contacted Scott County Sheriff’s Deputy Gina Lieferman. The manager
requested that Lieferman investigate a complaint from a motel guest that
another guest was selling drugs. According to the manager, the
complaint was that an African-American male had approached the guest
and asked him if he wanted to “buy some stuff.”
Lieferman arrived at the Motel 6, which is L-shaped with room
doors on the outside facing the parking lot. After speaking to the
manager, Lieferman learned that the room in question, number 136, was
rented to a female by the name of Easter Kelly and had been paid for in
cash on a day-to-day basis.
Deputy Lieferman called Special Agent Curtis Carter to assist her
at the scene. They set up surveillance in room 134, two doors from room
136. Eventually, a van and car pulled into the parking lot. An African-
American male got out of the van and entered room 136. A female got
out of the car, entered room 136 briefly, and then left. After the female’s
departure, Deputy Lieferman observed individuals enter room 136 and
leave shortly thereafter.
At this point, Deputy Lieferman, who was dressed in civilian
clothes, decided to conduct a “knock and talk.” She asked Agent Carter
to stand at the door of room 134 to observe. When Lieferman knocked 3
on the door to room 136, a male voice asked, “Who is it?” Lieferman
responded, “Me.”
About thirty seconds later, Brooks, an African-American male,
opened the door, which swung inside the motel room, and put his head
and shoulders outside the door. When Brooks opened the door, Deputy
Lieferman immediately detected the odor of raw cannabis. She could
also smell a fragrance that she described as a “masking” smell.
At this point, Deputy Lieferman told Brooks, “I heard you have the
hook up,” phraseology that Lieferman testified was commonly used by
drug dealers. After Brooks twice denied knowing what she meant,
Lieferman showed him her badge and identified herself as a law
enforcement officer. Lieferman then asked whether Brooks would talk
with her and he responded negatively. When Lieferman stated that she
knew Brooks had marijuana in the room, the defendant replied, “No you
don’t, I’m not burning it.”
After this remark, Deputy Lieferman decided to arrest the
defendant, put her foot in the door, and grabbed for Brooks’ wrist, which
was on the outside door knob. Brooks pulled back and attempted to get
inside the room. Deputy Lieferman then pushed open the door and took
two steps inside as she continued to struggle with Brooks. When she
entered the room, she observed a large quantity of marijuana, two digital
scales, and plastic baggies. Deputy Lieferman placed Brooks under
arrest and called an on-duty sheriff’s deputy to transport Brooks to the
county jail.
Lieferman next called the county attorney and discussed the
situation. She obtained permission to seek a search warrant. Lieferman
then exited the room and waited in her vehicle in the parking lot, 4
observing the area until she was informed that the search warrant had
been obtained.
Thereafter, Lieferman entered the room again and conducted a full
search. As a result of the search, the police seized a green box cutter,
multiple grams of cannabis, two digital scales, packaging materials, two
cell phones, and mail addressed to Easter Kelly.
Prior to trial, Brooks filed several motions in limine to suppress
evidence. Brooks claimed that the initial search was conducted without
probable cause and without consent. The State resisted, claiming that
the initial entry into the motel room and Brooks’ arrest were based on
exigent circumstances.
At the hearing on the motion to suppress, the State presented
testimony from Lieferman regarding the facts and circumstances leading
to Brooks’ arrest, her observation of marijuana in the course of making
the arrest, and the subsequent search of the motel room after a warrant
had been secured. With regard to the motel room, Lieferman testified
that room 136 was not rented in Brooks’ name and that paying for motel
rooms on a day-to-day basis in cash was a common practice of
individuals engaged in the sale of controlled substances. The deputy
further testified to the course of her surveillance and her belief that
controlled substances were being sold from the room. The defendant did
not put on evidence at the hearing.
After the close of evidence, the State argued that after Lieferman
smelled raw cannabis and the defendant told her that she could not
smell the cannabis because he was not burning it, probable cause
existed to search the room given the exigent circumstances. The State
argued, in the alternative, that Lieferman certainly had probable cause to
make the arrest. 5
The defendant countered that there were no exigent circumstances
to support Lieferman’s warrantless entry into the motel room. According
to the defense, once Lieferman smelled the cannabis and obtained the
statement from the defendant, the officer should have simply left and
obtained a search warrant.
The district court denied the motion to suppress. The district
court declared that it was a “close call” as to whether exigent
circumstances existed to allow a warrantless search. The district court,
however, noted that there was no evidence regarding the defendant’s
reasonable expectation of privacy within the motel room. The room was
not rented in Brooks’ name, the defendant had not offered any evidence
as to his relationship with Easter Kelly, there was no evidence that he
was an overnight guest, and there was no evidence that he was more
than a mere “social” or “commercial” guest in someone else’s motel room.
According to the district court, the only evidence presented at the
hearing indicated that Brooks was in the room for a relatively short
period of time. As a result, the district court found that the defendant
did not have an expectation of privacy in the motel room and the motion
to suppress was denied.
At trial, the State offered evidence found as a result of the
execution of the search warrant in its case in chief. After the State
rested, Brooks took the stand in his own defense. The defendant
testified that he lived at the Motel 6 at the time of his arrest. He asserted
that Kelly was his girlfriend and that the room was in her name because
he did not have identification. Brooks testified that prior to coming to
the Motel 6, he stayed at the Exel Inn, but moved to the Motel 6 because
it was cheaper. Before that he lived at his cousin’s house. He testified
that he left his cousin’s house because he and his girlfriend did not have 6
privacy and went to the motel to do “adult type of things.” Brooks
further testified that he had a business breeding pit bull puppies and
maintained a website associated with the business. Brooks stated that
while he was living at the Motel 6, he left his dogs in his cousin’s
basement.
Brooks was convicted of possession with intent to deliver,
possession of marijuana, and failure to affix a drug-tax stamp. Brooks
appealed, asserting that the district court erred in not granting the
motion to suppress.
II. Issue of Preservation.
At the outset, Brooks contends that the State waived the issue of
whether he had a legitimate expectation of privacy in the motel room.
Citing Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68
L. Ed. 2d 38 (1981), Brooks maintains that the State had the initial
burden of showing that he lacked a privacy interest. By failing to raise
the issue at the suppression hearing, Brooks claims that the State
waived the matter.
Brooks further claims that he has been prejudiced by the State’s
failure to raise the issue of his reasonable expectation of privacy. The
defendant asserts that if the State had raised the issue in a timely
fashion, he would have responded by offering evidence at the
suppression hearing. Because the State did not raise the issue, Brooks
claims he did not need to make an evidentiary showing regarding his
expectation of privacy.
The State disagrees. The State distinguishes Steagald, noting that
in that case the trial court did not enter a ruling on the privacy issue.
The State further contends that in Steagald, the government not only did
not raise the issue, but in fact took the position in the trial court that the 7
premise being searched was the defendant’s residence. The State
contends that under our cases where an issue has been tacitly
considered and ruled upon by the district court, error has been
preserved. See State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987).
Our review of the record indicates that neither party explicitly
raised the privacy issue, either in the written filings or at the suppression
hearing. Nonetheless, after hearing the evidence, the district court
squarely ruled on the issue, finding that Brooks failed to show an
expectation of privacy in the motel room.
We agree with the State that Steagald is not controlling. In
Steagald, the government acquiesced in the determination that the
premises searched was the defendant’s home and further argued that as
a result, the defendant was in constructive possession of cocaine found
in a suitcase in the closet of the residence. Steagald, 451 U.S. at 209,
101 S. Ct. at 1646, 68 L. Ed. 2d at 44. Having relied upon the assertion
that the residence was the defendant’s home to establish constructive
possession, the Supreme Court refused to allow the government to
reverse course and claim that the defendant lacked an expectation of
privacy in the home for the first time on appeal. Id. Here, the
government did not make any affirmative assertions in the district court
that are inconsistent with its position on appeal. Nor did the State
acquiesce to a factual finding that the defendant had a reasonable
expectation of privacy in the motel room. We, therefore, conclude that
Steagald is not controlling in this case.
We find the case of Combs v. United States, 408 U.S. 224, 92 S. Ct.
2284, 33 L. Ed. 2d 308 (1972), more pertinent. In Combs, the defendant
was charged with receiving, possessing, and concealing cases of tax-paid
whiskey known by him to be stolen from an interstate shipment. Id. at 8
225, 92 S. Ct. at 2285, 33 L. Ed. 2d at 310. The whiskey was stored in a
shed on a farm owned by the defendant’s father. Id. at 226, 92 S. Ct. at
2285, 33 L. Ed. 2d at 310. A search warrant was issued, leading to the
discovery of the whiskey. Id. In the district court, the defendant moved
to suppress the evidence on the ground that there was no probable cause
to support the search warrant. Id. The district court denied relief on
this basis. Id. On appeal, however, the Court of Appeals for the Sixth
Circuit denied relief on the ground that the petition asserted no
possessory or proprietary interest in the searched premises. United
States v. Combs, 446 F.2d 515, 516 (6th Cir. 1971).
The United States Supreme Court reversed. Combs, 408 U.S. at
227–28, 92 S. Ct. at 2286, 33 L. Ed. 2d at 311. In a per curiam opinion,
the Supreme Court noted that the record before the district court was
“virtually barren of the facts” necessary to determine whether the
defendant had a reasonable expectation of privacy in the shed where the
whiskey was discovered. Id. at 227, 92 S. Ct. at 2286, 33 L. Ed. 2d at
311. The Supreme Court reasoned that the defendant’s failure to
present evidence of his privacy interest “may well be explained by the
related failure of the Government to make any challenge in the District
Court to petitioner’s standing to raise his Fourth Amendment claim.” Id.
The Supreme Court thus remanded the case to the district court to allow
the defendant to offer such evidence and the district court to rule on the
issue. Id. at 228, 92 S. Ct. at 2286, 33 L. Ed. 2d at 311.
We conclude that Combs is closer to the fact scenario presented in
this case than Steagald. In this case, the government did not make
contradictory affirmative assertions in the district court as in Steagald,
but remained silent, as in Combs. See United States v. Hansen, 652 F.2d
1374, 1382 (10th Cir. 1981); 6 Wayne R. LaFave, Search and Seizure 9
§ 11.7(e), at 466–68 (4th ed. 2004) (determining that Combs applies
where government simply remained silent or neglected to raise standing
in lower courts; Steagald approach applies where government made
affirmative assertion of facts below that would confer standing or did not
alert a reviewing court to the issue in a timely fashion). As such, we
conclude that the State has not waived its ability to challenge Brooks’
reasonable expectation of privacy in the motel room.
We further conclude that remand to the district court for
additional fact finding is unnecessary. Following Combs, other courts
have remanded cases for further proceedings where the record below is
inadequate to determine whether the defendant in fact had a reasonable
expectation of privacy in the searched premises. Moody v. People, 159
P.3d 611, 616–17 (Colo. 2007); State v. Ramires, 152 S.W.3d 385, 401–
02 (Mo. Ct. App. 2004).
The record presented here, however, does not necessitate remand.
Under Iowa law, an appellate court reviewing the validity of a search may
consider not only evidence admitted at the suppression hearing, but also
evidence admitted at trial. State v. Orozco, 573 N.W.2d 22, 24 (Iowa
1997). As a result, while Brooks may have been surprised by the district
court’s reliance on his failure to present evidence at the suppression
hearing showing his privacy interest in the motel room, the defendant
had an opportunity to cure such shortcomings in the record at trial.
Further, the record in this case demonstrates that Brooks, in fact, took
advantage of the opportunity to offer evidence at trial on the privacy
issue. State v. Carter, 904 P.2d 290, 292–93 (Wash. 1995) (holding
where defendant testified fully at trial regarding privacy issues there was
no need for remand under Combs). 10
Finally, we note that on appeal, Brooks has not asked for a remand
to offer further evidence, but instead stands on the record developed in
the trial court. The State, moreover, does not challenge consideration of
the evidence offered at trial and affirmatively suggests that we may
consider it on appeal. Remand is thus unnecessary and we give the
parties what they ask for, namely, a de novo review of the validity of the
search based upon the entire record developed in the district court.
III. Standard of Review.
Because the motion to suppress was based on a deprivation of the
defendant’s constitutional right against unlawful searches, this court’s
review is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002). In
conducting our de novo review, “we make an independent evaluation
[based on] the totality of the circumstances as shown by the entire
record.” State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). Each case
must be evaluated in light of its unique circumstances. State v. Legg,
633 N.W.2d 763, 767 (Iowa 2001).
IV. Discussion.
A. Introduction. The Fourth Amendment to the United States
Constitution provides “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated. . . .” U.S. Const. amend. IV.1 In deciding the constitutionality of a search, we undertake a two-step approach.
First, the defendant must show that he or she has a legitimate
expectation of privacy in the area searched. State v. Halliburton, 539
1Although the defendant has made a parallel claim under Article I, section 8 of
the Iowa Constitution, the defendant has not asserted that the state constitutional provision should be interpreted differently than the Fourth Amendment. As a result, for prudential reasons, we assume for the purposes of this case that the Iowa Constitution should be interpreted in the same fashion as its federal counterpart. State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008). 11
N.W.2d 339, 342 (Iowa 1995); see also United States v. Salvucci, 448 U.S.
83, 95, 100 S. Ct. 2547, 2554–55, 65 L. Ed. 2d 619, 630 (1980) (holding
that the exclusionary rule applies only to a defendant whose own Fourth
Amendment rights have been violated). “Second, if the defendant had a
legitimate expectation of privacy, we must then decide whether the State
unreasonably invaded the protected interest.” Halliburton, 539 N.W.2d
at 342. A warrantless search is unreasonable unless it comes within a
recognized exception such as consent, exigent circumstances, or plain
view. State v. Eubanks, 355 N.W.2d 57, 58–59 (Iowa 1984).
B. Reasonable Expectation of Privacy. The Fourth Amendment
unquestionably establishes an expectation of privacy in the home.
Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 1379, 63
L. Ed. 2d 639, 650 (1980). The case law extends this protection to hotel
or motel rooms. Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889,
891, 11 L. Ed. 2d 856, 859 (1964); United States v. Rambo, 789 F.2d
1289, 1296 (8th Cir. 1986). The case law further establishes that a
social guest in a home, and by logical extension in a motel room, has a
legitimate expectation of privacy in, at least some areas, of the home or
motel room of another. Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct.
469, 473, 142 L. Ed. 2d 373, 380 (1998); Minnesota v. Olson, 495 U.S.
91, 96, 110 S. Ct. 1684, 1688, 109 L. Ed. 2d 85, 93 (1990) (holding
overnight houseguest had reasonable expectation of privacy in hostess’
home). A mere visitor, however, who is not an overnight guest usually
lacks an expectation of privacy when present in the motel room of
another. United States v. Sturgis, 238 F.3d 956, 958 (8th Cir. 2001).
The mere fact that a premise may be characterized as a residence
or a motel room does not, by itself, establish that a particular person has
a reasonable expectation of privacy in the premises. For example, the 12
use of a hotel or motel room as a center for drug transactions and not as
a residence does not give rise to legitimate expectations of privacy within
the ambit of the Fourth Amendment. A defendant does not have a
reasonable expectation of privacy when the motel or hotel room is
nothing more than “a convenient processing station” for the packaging
and distribution of drugs. Carter, 525 U.S. at 102, 119 S. Ct. at 479,
142 L. Ed. 2d at 388 (Kennedy, J., concurring); United States v. Gordon,
168 F.3d 1222, 1226–27 (10th Cir. 1999); State v. Ortiz, 618 N.W.2d 556,
561 (Iowa 2000).
A defendant challenging a search and seizure occurring in the
motel room of a third person must demonstrate that he personally has
an expectation of privacy in the place searched, and that his expectation
is reasonable. Olson, 495 U.S. at 95–96, 110 S. Ct. at 1687, 109
L. Ed. 2d at 92. A bald assertion that one has been staying in a hotel,
without further proof, is generally insufficient; as is the defendant’s mere
presence in the motel room at the time of the search. United States v.
Armenta, 69 F.3d 304, 308 (9th Cir. 1995); United States v. Carr, 939
F.2d 1442, 1445–46 (10th Cir. 1991). In determining whether a
defendant has a reasonable expectation of privacy in a motel room, the
presence of the defendant’s belongings is a relevant factor. Gordon, 168
F.3d at 1227; United States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir.
1987).
In this case we must decide, based upon the unique record
developed, whether Brooks was using the room at the Motel 6 as an
overnight guest, thereby giving rise to an expectation of privacy, or
whether he was using the room for the purpose of selling illegal drugs,
and thus had no expectation of privacy. At trial, Brooks testified that he
was staying overnight in the room as a guest of his girlfriend, in whose 13
name the room was registered. The room was registered in his
girlfriend’s name because Brooks purportedly lacked proper
identification. He further testified that although he had been living
recently at his cousin’s home, he and his girlfriend decided to rent a
motel room in order to allow them to engage in “adult type of things.” He
testified that the couple had been staying at the Exel Inn until a few days
before his arrest, but had moved to the Motel 6 because it was less
expensive. Brooks further testified that he left his pit bulls, the breeding
of which were a source of livelihood for him, at his cousin’s home.
Upon our de novo review of the record, we conclude that Brooks
did not have a legitimate expectation of privacy in the motel room. Aside
from his own self-serving statements, Brooks was unable to offer
corroborating evidence to support his claim that he was doing anything
at the Motel 6 other than selling illegal narcotics. His claim that he
moved from one motel to another in order to save money is belied by the
fact that he had over two thousand dollars in his possession at the time
of his arrest. While there was no evidence in the record that the motel
room contained clothing or toiletries belonging to Brooks, there was
evidence that the room contained a considerable quantity of drugs, a
supply of baggies, and two sets of scales for the weighing of drugs. While
Brooks was apparently shirtless when he answered the door, the
evidence showed that a gust of warm air exited the room when the door
was opened, suggesting that the lack of shirt was for comfort rather than
indicia of long-term habitation.
Further, the record developed at trial demonstrates that Brooks
was an incredible witness. He claimed, for instance, that the thirteen
baggies of marijuana that were found in the groin area of his jeans were
for his personal use. The defendant had no explanation for the unusual 14
storage technique. He further claimed that the two scales found in the
motel room were used by him because he liked to precisely measure his
own marijuana, which he put in “blunts” for consumption. According to
Brooks, the baggies in the motel room were needed because he liked to
prepare for himself substantial individual quantities of marijuana in
advance.
From the totality of the evidence, we find that Brooks has not
shown, by a preponderance of evidence, that he was an overnight guest
at the Motel 6. We reject his self-serving testimony. We conclude that
Brooks was using the Motel 6 for illicit commercial purposes, namely,
selling illegal drugs. The motel room was nothing more than “a
convenient processing station” for the packaging and distribution of
drugs. Carter, 525 U.S. at 102, 119 S. Ct. at 479, 142 L. Ed. 2d at 388
(Kennedy, J., concurring). Brooks thus had only a fleeting and
insubstantial connection to the motel room—he was “one simply
permitted on the premises.” Id. at 91, 119 S. Ct. at 474, 142 L. Ed. 2d at
381; accord Ortiz, 618 N.W.2d at 561.
In light of our findings, Brooks had no reasonable expectation of
privacy in the Motel 6 room. As a result, the district court properly
denied the motion to suppress.
C. Exigent Circumstances. Aside from the question of whether
Brooks had a reasonable expectation of privacy in the motel room, there
is a substantial question as to whether a warrantless search of the
premises may be based upon exigent circumstances where the exigent
circumstances were caused by police conduct. Similar cases have
yielded different results. Compare United States v. Cephas, 254 F.3d
488, 494–95 (4th Cir. 2001) (holding exigent circumstances were present
to support warrantless search where officers, acting on tip regarding the 15
sale of drugs to minors, knocked on apartment door, smelled marijuana,
viewed young girl inside, and made a warrantless entry to avoid the
destruction of evidence), with United States v. Coles, 437 F.3d 361, 366
(3d Cir. 2006) (holding exigent circumstances exception to warrant
requirement not met where police created exigency by knocking and
announcing their presence), and United States v. Vega, 221 F.3d 789,
798–800 (5th Cir. 2000) (finding police created exigency when they
abandoned secure surveillance position without justification and
approached residence).
Further, there may also be an issue regarding whether exigent
circumstances may be found where the underlying crime is not a felony
or is relatively minor. See Welsh v. Wisconsin, 466 U.S. 740, 752, 104
S. Ct. 2091, 2099, 80 L. Ed. 2d 732, 744 (1984); State v. Hughes, 607
N.W.2d 621, 629 (Wis. 2000). In light of our resolution of the issue of
Brooks’ reasonable expectation of privacy, we express no opinion on
these questions.
V. Conclusion.
For the above reasons, the decision of the district court denying
the motion to suppress is affirmed.
AFFIRMED.