                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0094
                            Filed February 24, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD COOPER WEMER JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Kirk A. Daily,

District Associate Judge.



      Richard Cooper Wemer Jr. appeals his conviction for possession of

marijuana with intent to deliver and failure to affix a drug tax stamp. AFFIRMED.



      Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

      The district court found Richard Wemer Jr. guilty of possession of

marijuana with intent to deliver and failure to affix a drug tax stamp. On appeal,

Wemer contends (1) the court should have suppressed evidence obtained during

a search of his home, and (2) the district court erred in admitting a recording of

the events.

I.    Background Facts and Proceedings

      Ottumwa Police Officer Noah J. Aljets was dispatched to a home based on

a 911 hang-up call. As he approached the home, he smelled marijuana.       Aljets

eventually spoke to Wemer, one of the residents of the home. Wemer admitted

to smoking marijuana but denied making a 911 call. The officer confirmed the

number and advised Wemer he would need to enter the home to “check it out.”

According to Aljets, Wemer invited him in.

      Officers followed Wemer into the living room area, where they saw “two

baggies of marijuana” and “paraphernalia on a coffee table.”      They “walk[ed]

through the residence” to make sure no one else was “hiding,” “destroying

evidence,” or “adding evidence” not belonging to Wemer. After the walk-through,

the officers elected to apply for a search warrant. They obtained the warrant,

searched the home, and seized marijuana and drug-related items.

      The State charged Wemer with possession of marijuana with intent to

deliver and failure to affix a drug tax stamp. See Iowa Code §§ 124.401(1)(d),

453B.1, .3, .12 (2011). Wemer moved to suppress the evidence obtained from

the home. Following a hearing, the district denied the motion on the basis of the

“emergency aid” exception to the warrant requirement as to the initial encounter,
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Wemer’s consent to entry into the home, the officers’ observation of marijuana in

plain view, and the existence of probable cause to support the application for a

search warrant.

       Before trial, Wemer sought to review the recordings captured by a system

in Aljets’ vehicle. The district court granted the request. The case was tried to

the court. Wemer’s attorney made no objection to the recordings other than an

objection based on the grounds in the suppression motion.

       After trial, Wemer obtained new counsel, who moved to review the

recordings, reopen the record, and dismiss the trial information. The district court

allowed a defense expert to review the recordings and present testimony on the

destruction of “metadata” within the original recordings. The court denied the

motion to dismiss and ultimately found Wemer guilty as charged.                Wemer

challenged the court’s findings and conclusions, without success.           The court

imposed sentence and Wemer appealed.

II.    Suppression Ruling

       The Fourth Amendment to the United States Constitution as well as article

I, section 8 of the Iowa Constitution protect citizens against “unreasonable

searches and seizures” by government officials.1 State v. Carlson, 548 N.W.2d

138, 140 (Iowa 1996). Subject to certain exceptions, warrantless searches are


1
  Wemer contends the United States Supreme Court has narrowed the protections under
the Fourth Amendment, but the Iowa Supreme Court may provide heightened
protections under the Iowa Constitution. That is true. See State v. Gaskins, 866 N.W.2d
1, 6-7 (Iowa 2015) (reserving the right to apply principles differently under the state
constitution compared to its federal counterpart). Because we are not the Iowa Supreme
Court and the closest Iowa Supreme Court opinion on this subject was resolved under
the Fourth Amendment rather than the Iowa counterpart, we do not separately address
Wemer’s argument under the Iowa Constitution. See State v. Watts, 801 N.W.2d 845,
850 (Iowa 2011).
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per se unreasonable. Id. The recognized exceptions “are searches based on

consent, plain view, probable cause coupled with exigent circumstances,

searches incident to arrest, and those based on the emergency aid exception.”

State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). “Evidence obtained by an

illegal search is inadmissible unless the state proves by a preponderance of the

evidence that a recognized exception to the warrant requirement applies.”

Carlson, 548 N.W.2d at 140.

      Wemer argues (1) Officer Aljets entered his home illegally, (2) “the entry

into [his] home was not justified under the emergency aid” exception to the

warrant requirement, (3) he “did not provide valid consent to enter his home,” and

(4) all evidence obtained during the search of the home, whether by warrant or

otherwise, “was gained through the fruit of the poisonous tree” and should have

been suppressed. Our analysis begins with the emergency aid exception to the

warrant requirement and ends with the officers’ search of the home pursuant to a

warrant.

A.    Emergency Aid Exception

      A police officer has a right to enter a dwelling without a warrant to render

emergency aid and assistance.       Id. at 140-41.   To determine whether this

exception applies, we ask, “Under the circumstances, would a reasonable person

have thought an emergency existed[.]” State v. Crawford, 659 N.W.2d 537, 542

(Iowa 2003). The standard requires less than probable cause. Id. at 543.

      Our de novo review of the record reveals the following additional facts

relating to the initial encounter. After the dispatcher received the 911 “hang up”

call, the dispatcher attempted to return the call. The line was busy. According to
                                         5


Aljets, the usual protocol when this happened was to “dispatch an officer to

check it out to make sure that everything is okay.”

       Aljets was dispatched to the home. The front entrance had an outside and

an inside door. Aljets knocked on the outside, screen door and got no answer.

He opened the screen door and knocked on the inside door, “which at that

point . . . wasn’t secured all the way.”     As he knocked and announced his

presence, the door creaked open.        Aljets “smell[ed] a very strong odor of

marijuana coming from the residence.”        Indeed, he testified “right when [he]

walked up there, at the outside door, you could smell the smell of marijuana from

the outer door.”

       Aljets imagined a drug transaction gone wrong—“something bad”

occurring in the house. Still between the outside and inside doors, Aljets loudly

announced his presence. Wemer came down the stairs. Aljets asked about the

marijuana smell. Wemer admitted he and a friend had been smoking marijuana.

Aljets told Wemer he was there because of the 911 call from the home. Wemer

responded that no one in the home had called 911. After confirming the number,

Aljets called for backup units.

       We conclude the aborted 911 call coupled with the strong smell of

marijuana outside the home would have led a reasonable person to believe an

emergency existed. We reach this conclusion notwithstanding evidence of land

line trouble in the area. A reasonable person could have concluded a failure to

investigate the situation based on a presumption of a malfunctioning phone

would have been inconsistent with protocol and with the officer’s community

caretaking responsibilities. See State v. Kern, 831 N.W.2d 149, 172-73 (Iowa
                                        6


2013) (noting emergency aid doctrine is subset of community caretaking

exception, which “involves the duty of police officers to help citizens an officer

reasonably believes may be in need of assistance”).

      We acknowledge testimony indicating Aljets broke the plane of the inside

door and may have actually stepped into the front entryway. In our view, the

emergency aid exception to the warrant requirement covered this entry, if it

occurred.   See State v. Breuer, 577 N.W.2d 41, 50 (Iowa 1998) (concluding

deputy’s actions in opening the unlocked outer door of Breuer’s apartment

building and proceeding up the stairway to knock on Breuer’s apartment door did

not unreasonably invade Breuer’s legitimate expectation of privacy with respect

to the stairway); State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989) (noting

“Vincik’s ‘911’ call, in which he requested help and indicated he had been shot,

clearly justified the warrantless entries” through the unlocked front door and into

one of the bedrooms); see also United States v. Wilson, No. 08-CR-2020-LRR,

2009 WL 905709, at *7-8 (N.D. Iowa Mar. 30, 2009) (concluding lockable door

and doorbell button clearly marked threshold to home and warrantless entry into

mudroom behind door was unconstitutional but stating, “[n]othing in this opinion

should be read to suggest [the officer] was not justified in walking to Defendant’s

house, alighting the landing and knocking on the storm door”).

      We turn to Officer Aljets’ subsequent decisions to proceed into the living

room area along with other officers and to conduct a warrantless protective

sweep of the home. The State argues Wemer consented to these actions. We

need not resolve this issue because, even if Wemer did not voluntarily consent,

the search warrant cured the taint.
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B.     Search Warrant

       In State v. Watts, 801 N.W.2d 845, 852-56 (Iowa 2011), the Iowa

Supreme Court addressed the question of whether a search pursuant to a

warrant was tainted by evidence observed during a prior unlawful entry. The

court stated:

       The exclusionary rule requires the suppression of evidence
       discovered as a result of illegal government activity. To determine
       whether an improper entry invalidates a subsequent search
       pursuant to a warrant, we need to consider whether the agents’
       decision to seek the warrant was prompted by what they had seen
       during the initial entry, or if information obtained during that entry
       was presented to the Magistrate and affected his decision to issue
       the warrant. In making the latter determination, we excise the
       illegally obtained information from the warrant application and
       determine whether the remaining legally obtained information
       supports probable cause.

Watts, 801 N.W.2d at 853 (citations omitted).

       The court proceeded to determine whether the odor of marijuana could

furnish probable cause for the warrant. Id. at 854. Citing precedent holding

probable cause could be based on the odor of marijuana, the court stated:

       [U]pon opening the hallway door at the mid-point of the common
       hallway, the officers immediately noticed “a strong odor” of
       marijuana. By sniffing at the door jamb of apartment 12, they could
       tell the marijuana odor came from that apartment. When Watts
       opened the apartment door after the officers knocked, the aroma
       became “overpowering.” . . . [T]hese facts set forth in the warrant
       application by themselves provided probable cause for issuance of
       the warrant.

Id. See also State v. McGrane, 733 N.W.2d 671, 681-82 (Iowa 2007) (finding

information in addition to illegally obtained information was sufficient to support a

finding of probable cause for the issuance of a search warrant but concluding

officers sought a warrant based on what they observed following the illegal
                                          8

entry); State v. Naujoks, 637 N.W.2d 101, 113 (Iowa 2002) (concluding evidence

obtained prior to illegal entry was enough to constitute probable cause to issue

the search warrant but reversing and remanding for new trial based on absence

of exigent circumstances to support initial entry).

        We reach the same conclusion here. Aljets came to the home based on

the 911 hang-up.      He smelled marijuana from outside the home.           Wemer

confirmed his phone number and conceded he had been smoking marijuana.

These facts provided probable cause to support the warrant.

        Watts next considered “whether the officers would have sought the

search warrant even without the information provided by their original,

warrantless entry.” 801 N.W.2d at 856. The court concluded the officers would

have sought the warrant, based on one of the officers’ testimony that “once Watts

opened the door and the officers noticed the overwhelming odor of marijuana,”

the officer “believed [he] had probable cause for a search warrant.” Id.

        As in Watts, we believe officers in this case would have applied for a

search warrant based on the information gained before they entered the living

room and conducted the protective sweep.              Although the search warrant

application contained facts gained from observations of the living room, the

application also included facts arising from Officer Aljets’ initial approach to the

home.    As noted, those facts alone furnished probable cause for the search

warrant. Id.; State v. Rumley, No. 14-0457, 2015 WL 576031, at *1 (Iowa Ct.

App. Feb. 11, 2015) (concluding probable cause existed for the issuance of a

search warrant where “[t]he officer smelled marijuana in the threshold of the

room and could smell marijuana in the room when conversing with [a woman]”);
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State v. Thielman, No. 13-1218, 2014 WL 3511851, at *4 (Iowa Ct. App. July 16,

2014) (“After walking up to the apartment and smelling a strong odor of burning

marijuana, the officers could have obtained a search warrant on that basis

alone.”).

         Because the warrant rendered the search valid, we conclude the district

court appropriately denied Wemer’s motion to suppress.

C.       Admission of Recording

         Wemer contends the State incorrectly duplicated the original recording

from Aljets’ vehicle and, in the process, destroyed embedded information within

the digital file, known as “metadata.” In his view, the “destruction” of this data (1)

amounted to a due process violation and (2) prevented proper authentication of

the recording, rendering the recording inadmissible under our rules of evidence.

         The constitutional issue was not raised by Wemer and was not decided by

the district court. Accordingly, the issue was not preserved for our review. 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.”).

         We turn to Wemer’s challenge to the admissibility of the recording under

our rules of evidence. The State sought to admit the recording during his bench

trial.   Wemer’s attorney responded by stating he had “no objection to the

introduction of the whole thing with the exception of [the] illegal search and

consent issues.” The court admitted the recording “subject to those objections.”

No evidentiary objection was raised.
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       After trial, Wemer filed a “motion to dismiss” on the grounds that he

“raised a genuine question to the authenticity of this copy as an accurate record”

and “the power to review the original and delete any metadata that reveals

changes between the original and the copy lies entirely in the power of the

State.” The district court resolved the motion under the dismissal rule rather than

an evidentiary rule. Based on the record up to this point, we question whether

error was preserved.

       However, Wemer’s written “closing argument” stated the recording “cannot

be authenticated as an original recording.” And, in its findings and conclusions,

the district court accepted Wemer’s assertion that metadata was lost in the

process of moving the files to a server but characterized this loss as “[a]n

unintended byproduct” of the transfer process. The court concluded there was

“no competent evidence of any sort” that the video/audio was altered, and went

on to hold the video “trustworthy.” Although the court did not cite the evidentiary

rules on which Wemer now relies, we believe the analysis was sufficient to

preserve error. We proceed to the merits.

       Iowa Rule of Evidence 5.1003 permits the admission of a duplicate

recording unless “(1) a genuine question is raised as to the authenticity of the

original or (2) under the circumstances, admission of the duplicate would be

unfair.”   Rule 5.1004 permits the admission of “the contents of a writing,

recording, or photograph” where the original document is lost or destroyed,

“unless the proponent lost or destroyed them in bad faith” or “[n]o original can be

obtained by any available judicial process or procedure.”
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       Wemer presented scant if any evidence challenging the authenticity of the

original recording. But, even if he had, Aljets’s testimony on how, when, and

where the recording was made established this requirement. Rule 5.1003, then,

is inapposite. Rule 5.1004 is more applicable.

       As noted, Wemer focuses on the loss of metadata in the original recording

after the recording was transferred to a server. Assuming without deciding that

the loss of metadata amounts to a loss of the original recording, Wemer

furnished no evidence the department acted in bad faith.        See Kaiser Agric.

Chems. v. Ottumwa Prod. Credit Ass’n, 428 N.W.2d 681, 683 (Iowa Ct. App.

1988) (noting party failed to establish that documents transferred and lost

following sale of subsidiary were intentionally lost under circumstances indicating

intentional fraud). Absent this showing, the duplicate was admissible.

       We affirm Wemer’s judgment and sentence for possession of marijuana

with intent to deliver and failure to affix a drug tax stamp.

       AFFIRMED.
