State v. Fisher

• Court: Court of Appeals of Iowa
• Decided: January 10, 2018
• Docket: 16-1758
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1758 Filed January 10, 2018

STATE OF IOWA, Plaintiff-Appellee,

vs.

KOHL M. FISHER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Boone County, Timothy J. Finn,

Judge.

A defendant appeals the district court’s denial of his motion to suppress

evidence discovered during the search of his vehicle. AFFIRMED.

Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Heard by Vogel, P.J., and Tabor and Bower, JJ. 2

VOGEL, Presiding Judge.

Following a jury trial, Kohl Fisher appeals his conviction for conspiracy to

manufacture, deliver, or possess with intent to deliver methamphetamine and

possession with intent to deliver, in violation of Iowa Code sections

124.401(1)(c)(6) and 124.413 (2016). On appeal, he asserts the district court

should have granted his motion to suppress evidence because the search of his

vehicle was conducted at the request of his parole officer and violated his

constitutional rights. Because we conclude the search was legally conducted

under the automobile exception to the warrant requirement, we affirm the district

court’s denial of Fisher’s motion to suppress and affirm his conviction and

sentence.

I. Background Facts and Proceedings.

When he was released from prison in February 2016, Fisher signed a

standard parole agreement that provided, in part: “I will submit my person,

property, place of residence, vehicle, and personal effects to search at any time,

with or without a search warrant, warrant of arrest, or reasonable cause by my

parole officer or law enforcement officer.” Probation Officer Steve Naeve was

assigned to supervise Fisher’s parole in April 2016. As part of his parole, Fisher

was required to wear a GPS monitoring bracelet. Officer Naeve received

notification from Boone police on April 24 that Fisher was potentially suicidal.

Officer Naeve met with Fisher that day, and Fisher admitted to having recently

used methamphetamine.

In the following weeks, Officer Naeve consulted with Boone Police

Investigator Cory Rose. Investigator Rose and Officer Naeve had been told by a 3

trusted confidential informant that Fisher and Fisher’s wife were distributing

methamphetamine in Boone and were getting supplies of methamphetamine from

an individual in Jefferson. Officer Naeve monitored Fisher’s movements through

the GPS bracelet and noted he was frequenting at least two locations in Boone

that Officer Naeve would describe as “drug houses”—Officer Naeve was familiar

with people that frequented the locations and knew those individuals were currently

using controlled substances. Fisher was also noted to frequent locations in nearby

Jefferson, which local Greene County law enforcement informed Officer Naeve

were locations where methamphetamine was being dealt.

On May 9, 2016, Investigator Rose contacted Officer Naeve to inform him

that Investigator Rose, while off duty, observed Fisher driving towards Jefferson.

Fisher’s vehicle stopped at a residence in Jefferson where Fisher had frequented

in the weeks leading up to May 9. Investigator Rose observed Fisher and Fisher’s

wife leave the residence after a short amount of time, “maybe about a half hour.”

Fisher then opened the hood to his car, reached underneath the hood, pulled

something out of his pocket, placed it under the hood, closed the hood, walked

around the car inspecting it, and then got into the car and drove away, heading

back towards Boone.

Investigator Rose followed Fisher, and Officer Naeve monitored Fisher’s

bracelet as Fisher traveled from Jefferson back towards Boone. Officer Naeve

advised Boone patrol officers that if they encountered Fisher, Officer Naeve

wanted to speak with him. Boone Police Officer Josh Olsen heard Officer Naeve’s

advisement that Fisher was headed to Boone and that his vehicle likely contained

drugs. Officer Olsen observed Fisher speeding and pulled him over. Officer Olsen 4

contacted Officer Naeve, notifying him that Fisher had been stopped, and Officer

Naeve quickly arrived at the scene as he was only one block away when he was

contacted by Officer Olsen. After issuing him a warning for speeding, Officer Olsen

advised Fisher that Officer Naeve was present and wanted to speak with him, and

he told Fisher he was not free to go.

Officer Naeve asked Fisher what was in the car—inferring knowledge of the

presence of drugs—and Fisher denied anything was present. Officer Naeve asked

to search Fisher’s car, and Fisher responded that he knew he needed to consent

for his parole. Officer Naeve did not tell Fisher he had the right to refuse the

search. Investigator Rose, who had also arrived on scene, conducted the search

and quickly located a magnetic hide-a-key box in the hood compartment of Fisher’s

car, in the same location Investigator Rose had seen Fisher reach when Fisher

was at the house in Jefferson. Inside the box were two small baggies containing

what would later be determined to be methamphetamine.

Fisher denied knowledge of the methamphetamine and his wife, who was

a passenger in the car, claimed ownership of it. A search of Fisher’s wife’s purse

revealed other evidence of drug distribution, including three cell phones and a

notebook with names and figures consistent with controlled substance

transactions.

Fisher was arrested and charged for conspiracy and possession of the

methamphetamine. He filed a motion to suppress that sought, in part, to suppress

the evidence obtained from the search of his vehicle. The State resisted the

motion, asserting the search was valid under the automobile exception to the

warrant requirement and valid as a consensual search pursuant to the parole 5

agreement. After conducting a hearing, the district court denied Fisher’s motion to

suppress concluding:

[T]he Court notes that the defendant was paroled from prison and on February 24, 2016, the defendant signed a document entitled “Parole Agreement” which contains the following language, to-wit: “I will submit my person, property, place of residence, vehicle, and personal effects to search at any time, with or without a search warrant, warrant of arrest cause by my parole officer or law enforcement officer.” That is exactly what happened. The police did not need a search warrant nor did they need even “reasonable cause” if requested by his parole officer. This is exactly what happened.

The case proceeded to a jury trial on August 16, 2016, and the jury returned

a guilty verdict on both counts. The court merged the two offenses at sentencing,

and Fisher was ordered to serve an indeterminate term of incarceration of no more

than ten years with a one-third minimum term. The sentence was ordered to run

concurrently with the sentence he was serving on parole. Fisher appeals

challenging the court’s denial of his motion to suppress the evidence discovered

during the search of his vehicle.

II. Scope and Standard of Review.

We review de novo constitutional claims of a violation of an individual’s

rights under the Fourth Amendment of the U.S. Constitution and article I, section

8 of the Iowa Constitution. State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013).

“[W]e make an independent evaluation [based on] the totality of the circumstances

as shown by the entire record. Each case must be evaluated in light of its unique

circumstances.” Id. (second alteration in original) (citations omitted). “We give

deference to the district court’s fact findings due to its opportunity to assess the 6

credibility of witnesses, but we are not bound by those findings.” State v. Brooks,

888 N.W.2d 406, 410 (Iowa 2016).

III. Vehicle Search.

While Fisher asserts the search of his vehicle was not justified by the parole

agreement or the special needs doctrine, see id. at 411–14 (outlining the cases

the supreme court has considered involving parolees and the special-needs

doctrine), the State argues the search is justified under the automobile exception

to the warrant requirement, see State v. Maxwell, 743 N.W.2d 185, 192 (Iowa

2008) (noting “[w]e are obliged to affirm an appeal where any proper basis appears

for a trial court’s ruling, even though it is not one upon which the court based its

holding” so long as the parties raised the issue in the district court (citation

omitted)).

Warrantless searches are per se unreasonable unless they fall within the

carefully drawn exceptions to the warrant requirement. State v. Gaskins, 866

N.W.2d 1, 7 (Iowa 2015). Our supreme court has recently reaffirmed the

automobile exception to the warrant requirement. State v. Storm, 898 N.W.2d 140,

145 (Iowa 2017). “‘[T]his exception is applicable when probable cause and exigent

circumstances exist at the time the car is stopped by police.’ The inherent mobility

of motor vehicles satisfies the exigent-circumstances requirement.” Id. (alteration

in original) (quoting State v. Holderness, 301 N.W.2d 733, 736 (Iowa 1981)). In

addition, there is a “lower expectation of privacy in vehicles compared to homes

and other structures.” Id. 7

Because the inherent mobility of automobiles satisfies the exigency

requirement,1 we need only address in this case whether the officers had probable

cause for the search. “The standard for probable cause is whether a person of

reasonable prudence would believe a crime has been committed or that evidence

of a crime might be located in the particular area to be searched.” State v. Kern,

831 N.W.2d 149, 174 (Iowa 2013) (citation omitted). “An anonymous tip, alone,

does not ordinarily contain sufficient indicia of reliability to provide reasonable

suspicion, let alone probable cause. On the other hand, a significantly

corroborated and verified anonymous tip has been held sufficient by the United

States Supreme Court under the Fourth Amendment.” Id. at 175 (citation omitted).

In addition, a person’s status as a parolee alone does not amount to probable

cause. Id. at 176. But, “[i]n considering whether probable cause exist[s] in this

case, we remember the established principle that ‘the knowledge of one peace

officer, acting in concert with other peace officers, is presumed to be shared with

all.’” State v. Lovig, 675 N.W.2d 557, 564 (Iowa 2004) (citation omitted).

In this case, Investigator Rose testified at the suppression hearing he

believed Fisher had methamphetamine under the hood of his car on the night in

question:

With all of the information that we received [through] the informant that they were engaged in distributing methamphetamine, the information through his parole officer on going to this residence near the Hy-Vee in Jefferson, that lining up with the informant

1 We also note Fisher’s vehicle contained two passengers, who could have driven the car from the scene, furthering the exigency concern in this case. See Holderness, 301 N.W.2d at 737 (“The exigency requirement, as explained in prior cases, is satisfied ‘when the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’” (citations omitted)). 8

information of that’s where they have picked up methamphetamine before. Seeing Mr. Fisher that night going back and watching him come out of the residence and remove something and place it under the hood of the vehicle, which through the course of investigations, I mean, I’ve found narcotics hidden on vehicles whether under the hood, under a fender, various places to avoid detection. You know, not a common place for somebody to place something on a vehicle. Get in the vehicle after conducting a walk around of the vehicle. Like I said, in my thoughts an attempt to make sure everything is operating to not draw attention [of] law enforcement. That, yes, I believe that there was contraband underneath the hood of that vehicle placed there by Mr. Fisher.

From our de novo review of the evidence, we agree probable cause existed

to justify the search. Investigator Rose got a tip from a confidential source he knew

to be reliable that Fisher and his wife were distributing methamphetamine in Boone

and that they were getting their supply of methamphetamine from Jefferson. In the

weeks before the search, Fisher admitted to Officer Naeve that he had used

methamphetamine, and Officer Naeve observed Fisher’s GPS tracking bracelet

showed Fisher was frequenting known drug houses in both Boone and Jefferson.

Investigator Rose observed Fisher and his wife driving into Jefferson. He observed

Fisher’s vehicle parked at a known drug house, and he watched Fisher and his

wife walk out of the house after a short time. He then watched as Fisher opened

the hood of his car, pulled something from his pocket, and placed it in the engine

compartment of his vehicle. Fisher then walked around the car inspecting it, got

back into the car, and left town driving towards Boone. We agree with the State

that from this evidence “a person of reasonable prudence would believe a crime

has been committed or that evidence of a crime might be located in the particular

area to be searched.” See Kern, 831 N.W.2d at 174. 9

Because our supreme court recently decided to “elect to retain the

automobile exception, consistent with our precedent, federal caselaw, and the

overwhelming majority of other states,” Storm, 898 N.W.2d at 142, we affirm the

district court’s denial of Fisher’s motion to suppress based on the automobile

exception. We need not address Fisher’s claim on appeal that the district court

was wrong to conclude the search was valid based on consent from his parole

agreement.

AFFIRMED.