                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0283
                             Filed August 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALAN JAMES KUUTTILA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel

(motion to suppress) and James B. Malloy (sentencing), District Associate Judges.



      Alan Kuuttila appeals his convictions and sentences for three charges of

possession of a controlled substance. CONVICTIONS AFFIRMED, SENTENCE

VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.



      Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., May, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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CARR, Senior Judge.

       Alan Kuuttila appeals his three convictions for possession of a controlled

substance following a bench trial on the minutes of evidence. He first challenges

the denial of his motion to suppress evidence seized as a result of law

enforcement’s warrantless search of garbage outside his residence. We review

this constitutional challenge de novo by conducting an independent review of the

circumstances as shown by the entire record before us. See State v. White, 887

N.W.2d 172, 175 (Iowa 2016). We give deference to the district court’s findings

but are not bound by them. See id.

       The United States Supreme Court considered and rejected the claim that a

person has a reasonable expectation to privacy requiring Fourth Amendment

protection with regard to the contents of a garbage bag left for collection in

California v. Greenwood, 486 U.S. 35, 39-40 (1988). Shortly after, this court

adopted the reasoning of Greenwood in determining that evidence obtained by

searching a defendant’s garbage was properly considered by the court in issuing

a search warrant of the defendant’s premises. See State v. Henderson, 435

N.W.2d 394, 396-97 (Iowa Ct. App. 1988). In several decisions issued since

Henderson, this court has adhered to its holding. See, e.g., State v. Skola, 634

N.W.2d 687, 691 (Iowa Ct. App. 2001) (“Skola presents the court with no

compelling reason to depart from the holdings in Greenwood and Henderson.”).

Kuuttila recognizes as much but asks us to reject the Supreme Court’s reasoning

in Greenwood and overrule Henderson in order to “conclude that Iowans do have

a protected privacy interest under the Iowa constitution in their household trash set
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out for collection and disposal.” We decline to do so. As our supreme court has

stated,

       Courts adhere to the holdings of past rulings to imbue the law with
       continuity and predictability and help maintain the stability essential
       to society. From the very beginnings of this court, we have guarded
       the venerable doctrine of stare decisis and required the highest
       possible showing that a precedent should be overruled before taking
       such a step.

State v. Iowa Dist. Ct., 902 N.W.2d 811, 817 (Iowa 2017) (quotation marks and

citations omitted). Finding no compelling reason to overrule precedent, we leave

the issue to the Iowa Supreme Court to address should it choose to do so.

     We then turn to the question of whether probable cause existed to support a

search warrant on Kuuttila’s apartment based on the evidence recovered from the

garbage bags found on his premises. The answer turns on whether a reasonable

person would believe a crime was committed or evidence of a crime could be

located on the premises to be searched. See State v. Shanahan, 712 N.W.2d 121,

131-32 (Iowa 2006). In making this determination, we ask whether the court

issuing the warrant had a substantial basis for concluding probable cause existed.

See id. at 132. For that reason, we restrict our review to the information available

to the court at the time it issued the warrant. See id.

       The facts before the court at the time the warrant issued provide a

substantial basis for the probable-cause determination.       Deputy Sheriff Andy

Boeckman applied for the warrant based on the Central Iowa Drug Task Force

receiving “numerous tips” that Kuuttila was selling drugs from his residence. The

deputy located Kuuttila’s address and removed trash from outside it. In the trash,

he found “several small baggies commonly used by drug dealers to deliver usable
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amounts of narcotics to their clients.”      One of those small bags contained

marijuana residue and another contained methamphetamine residue. Deputy

Boeckman also found two pipes used for smoking, several used hypodermic

needles, and pieces of mail with Kuuttila’s name printed on them.            Kuuttila

complains that the information about the tips was vague and included no

information regarding the veracity of those providing the tips. He also complains

that there is no showing the seized trash containing drugs belonged to him

because his apartment was one of four on the property and the affidavit does not

state his mail was located in the same bag as the drugs. The affidavit does not

recite any number of bags, referring only to “trash.”

       “[A]n anonymous tip alone does not ordinarily contain sufficient indicia of

reliability to provide probable cause,” but “a significantly corroborated anonymous

tip” will support a warrant. State v. McNeal, 867 N.W.2d 91, 101 (Iowa 2015).

Deputy Boeckman was able to verify the tips by locating drugs and drug

paraphernalia in the trash left outside of Kuuttila’s residence, which also contained

Kuuttila’s mail. We agree that the information before the court at the time the

warrant issued provided a substantial basis for concluding probable cause existed.

       Kuuttila also identifies a clerical error in the sentencing order.     At the

sentencing hearing, the State moved to dismiss a companion charge for

possession of paraphernalia and agreed to pay its costs. In its oral pronouncement

of sentence, the court agreed that the charge would be “dismissed with costs

assessed against the State.” But the sentencing order states that any companion

charges “are dismissed with costs assessed to the defendant.” In view of this clear

error, we vacate that portion of the sentencing order and remand to “the district
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court to correct the written judgment entry by issuing a nunc pro tunc order.” State

v. Hess, 533 N.W.2d 525, 529 (Iowa 1995).

       Finally, we address the portion of the sentencing order assessing Kuuttila

restitution for an undetermined amount of court costs and attorney fees. Under

count I, possession of a cannabidiol, the court found that Kuuttila “is able to

reimburse the State for court appointed attorney fees in the amount of $192.00.”

Under the two remaining possession counts, the order states only that it found

Kuuttila able to pay court-appointed attorney fees without setting an amount. The

court made no findings regarding Kuuttila’s ability to pay court costs for any of the

three counts. But the order states that the amounts are “due immediately and shall

be considered delinquent if not paid within 30 days.”

       In State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019), the Iowa Supreme

Court held that an offender may be assessed court costs and court-appointed

attorney fees to the extent that the offender has the reasonable ability to pay. But

“Albright makes clear that with respect to restitution, no award of reasonable-

ability-to-pay items . . . may occur until all such items are before the court and the

court has then made a reasonable-ability-to-pay determination.” State v. Gross,

935 N.W.2d 695, 702 (Iowa 2019). Because the court’s determination of Kuuttila’s

ability to pay court-appointed attorney fees was premature, we were poised to

vacate the restitution portion of the sentencing order and remand to the district

court to enter a restitution order consistent with Albright. See 925 N.W.2d at 162-

63. On June 25, 2020, our governor approved legislative amendments to Iowa

Code chapter 910 (2020), which went into effect immediately. See 2020 Iowa Acts

ch. 1074, § 64. On July 7, 2020, our supreme court entered a supervisory order
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establishing rules and procedures to implement the Division XIII. See generally

Iowa Supreme Ct. Supervisory Order, In the Matter of Interim Procedures

Governing Ability to Pay Determinations and Conversion of Restitution Orders

(July 7, 2020). We have not had the benefit of briefing and argument by the parties

concerning the impact of the new legislation and supervisory order on the

restitution issues Kuuttila raises. We think it best to vacate the restitution order

and remand the matter to the trial court to consider Kuuttila’s claims of error in the

restitution award in light of Albright, the new legislation, and the supreme court’s

July 7 order. We so order.

       CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

CASE REMANDED WITH DIRECTIONS.
