                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1863
                               Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KOLE ALEXANDER HIGGINS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Greene County, Joseph B.

McCarville, District Associate Judge.




      A defendant appeals five drug-related convictions.      REVERSED AND

REMANDED.



      James S. Nelsen, West Des Moines, for appellant.

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

General, for appellee.



      Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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TABOR, Presiding Judge.

       Kole Higgins challenges his five drug-related convictions. He claims the

district court should have suppressed evidence found at his home during the

execution of a search warrant. Although we decide marginal cases in favor of

upholding warrants, we cannot rubber stamp the authorization to search a home

unsupported by probable cause. Here, the search warrant application established

Higgins’s association with people who used or delivered controlled substances.

But the application offered no observations, direct or indirect, showing Higgins kept

drugs in his home. Without that nexus, the issuing magistrate did not have a

substantial basis to find probable cause for the warrant. We thus reverse the

suppression ruling and remand for further proceedings consistent with this opinion.

       I.     Facts and Prior Proceedings

       In April 2018, Greene County Sheriff Jack Williams applied for a warrant to

search Higgins’s residence in Scranton for evidence of “illegal narcotics.” In his

affidavit, Sheriff Williams set the stage by discussing a joint investigation with the

Iowa Division of Narcotics Enforcement that led to the arrest of Travis Straight.

During that investigation, officers saw Higgins “coming and going” from Straight’s

property several times. A warranted search of Straight’s residence uncovered

“controlled substances and a large amount of cash.”

       After Straight’s arrest, the investigation diverged toward Higgins. Straight

called “the phone number of Steven Kanealy” from jail. According to the sheriff’s

affidavit, Straight asked “the person who answered the phone to go to Kole’s

residence and get cash to bond him out.” The sheriff asserted: “This shows Kole
                                           3


Higgins has large sums of cash about which Travis and Kole are both aware.” 1

Indeed, Straight bonded out later that day “for 2,500 dollars.” But the sheriff did

not confirm who posted bond or if the cash came from Higgins’s house.

       After Straight’s jail call, Sheriff Williams instructed his deputies to surveil

Higgins’s house and record all license plate numbers of vehicles making short

stops. The deputies conducted surveillance over four days—April 9 until April 12.

According to the affidavit, the deputies noted six cars and two guests on foot

stopped at Higgins’s residence during those four days—one visitor on April 9, two

on April 10, one on April 11, and four on April 12.2 The deputies recorded the

license plate numbers to determine the registered owners of those six cars and the

sheriff ran background checks for those owners. Four of the six registered owners

had drug possession or drug paraphernalia convictions.3               In the warrant

application, the sheriff also included Higgins’s conviction for possession of a

controlled substance from October 2017.

       Although the magistrate rejected the evidence, the sheriff noted receiving

“anonymous information from concerned citizens” who claimed to have seen

cocaine, methamphetamine, and “a large amount of marijuana” in Higgins’s house.



1 Later in the affidavit, the sheriff mentioned that from jail Straight also made
statements to Kanealy “about getting rid of cash that we did not find during the
search warrant at his residence.”
2 The sheriff’s affidavit did not reveal the time of the day for the visits.
3 In his affidavit, the sheriff mistakenly conveyed that the deputies positively

identified five of the visitors. The State clarified at the suppressing hearing that the
deputies only identified two visitors. The sheriff obtained criminal histories for the
registered owners of four vehicles, but had no information if those owners actually
visited Higgins’s residence. Also at the suppression hearing, the defense noted
the visitor on April 10, who had a 2011 drug conviction, was the stepfather of
Higgins’s live-in fiancée.
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Sheriff Williams acknowledged he had “no way to verify” those reports because

the callers did not leave their names.

       In addition, Sheriff Williams shared information from Straight’s probation

officer revealing Straight’s admissions to packaging and distributing cocaine and

Straight’s positive test for using cocaine. Sheriff Williams concluded: “Given the

known connection between Travis (Straight) and Kole (Higgins), the reports about

cocaine in Kole’s house, and the cocaine in Travis’s system, it is likely that Travis

was packing cocaine at Kole’s house.” The sheriff also discussed his experience

investigating the narcotics trade and expressed his opinion Higgins was “part of a

large scale drug trafficking network” that involved Straight and Kanealy.

       In the abstract of testimony, the magistrate made these hand-written

notations:

       Sheriff Williams indicated house is unkept, low value house. Yet,
       defendant had $2,500 cash readily available and no job.
       Invitees/guests at property to be searched are typically there for 5
       mins or less as well.

       Undersigned does not take into account the anonymous tips where
       no informant info is given to LEC.

       Based on the sheriff’s affidavit, the magistrate granted a search warrant for

Higgins’s residence.    During the search, the sheriff found two men outside

Higgins’s garage and six people inside the garage. The search also unearthed

two pounds of marijuana, a scale, glass smoking devices, a methamphetamine

pipe, and pill bottles of Lorazepam and Cyclobenzaprine.

       The State charged Higgins with seven counts:

       Count I: Possession with intent to deliver marijuana, a class D felony,
       in violation of Iowa Code section 124.401(1)(d) (2018);
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         Count II: Failure to affix a drug tax stamp, a class D felony, in violation
         of sections 453B.1, 453B.3 and 453B.12;
         Count III: Sponsoring a gathering for use of controlled substances, a
         class D felony, in violation of section 124.407;
         Count IV: Unlawfully keeping a place for purposes of using,
         possessing, selling, or keeping controlled substances, in violation of
         section 124.402(1)(e);4
         Count V: Possession of methamphetamine, in violation of
         section 124.401;5
         Count VI: Possession of a Lorazepam, second offense in violation of
         section 124.401(5);
         Count VII: Possession of prescription drug without a prescription,
         Cyclobenzaprine, in violation of section 155A.21.

         Higgins moved to suppress the evidence collected at his house. Higgins

argued the warrant application contained misleading information. For example,

the individuals with criminal histories listed in the application were the vehicle

owners and not confirmed as the people visiting Higgins. Higgins also complained

the sheriff did not confirm the money used to bail out Straight came from his

residence. Plus, Higgins argued the record did not show he was provided Miranda

warnings before his custodial interrogation.

         At the close of the suppression hearing, the district court expressed its

reservations about finding probable cause:

         I’m not making a decision at this time, except to say the following:
         I’m not going to consider the anonymous information from concerned
         citizens. We don’t know how old it is. There’s no confidential
         informant. . . . I think the magistrate was correct in not using that and
         I’m going to agree with that and not use that information. . . . I do
         think it’s a close call and here’s why: . . . I understand the State’s
         argument. A lot of traffic being there, short term, with a lot of
         suspicious people is suspicious. I agree with that. But, geez, would
         it kill them to stop somebody for a traffic, you know, offense and find
         drugs and/or couldn’t they have done a garbage pick up to find some
         drugs in it. Again, I don’t—there is no proof and I understand only
         has to be probable cause . . . and I’m not saying I’m going to rule on

4   The jury found the defendant not guilty Count IV.
5   The court granted the State’s motion to dismiss Count V before trial.
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       behalf of the defense. I just don’t know. But these things do strike
       me that there is a lot of suspicions but there is nothing concrete . . . .

       The district court ultimately denied Higgins’s motion to suppress. Higgins

stood trial and the jury found him guilty on five counts. He now appeals.

       II.     Scope and Standards of Review

       We review challenges to suppression rulings de novo when they implicate

constitutional issues. State v. Baker, 925 N.W.2d 602, 609 (Iowa 2019). That

review normally entails an independent review of the totality of circumstances on

the entire record. Id. But we do not make our own determination of probable

cause. See State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). Instead, we decide

whether the magistrate who issued the warrant had a substantial basis for

concluding probable cause existed. Id.

       In reaching that decision, we limit our consideration to “that information,

reduced to writing, which was actually presented to the magistrate at the time the

application for warrant was made.” State v. Godbersen, 493 N.W.2d 852, 855

(Iowa 1992).

       III.    Analysis

       Higgins challenges the district court’s denial of his motion to suppress.6 In

particular Higgins alleges the sheriff’s application did not include enough facts to

support the magistrate’s probable cause finding. In his words: “[T]here is no



6 Higgins also contends his trial counsel was ineffective in two ways: (1) by failing
to ask for a hearing to challenge the veracity of the warrant application under
Franks v. Delaware, 438 U.S. 154 (1978), and (2) by failing to present evidence
police violated his rights under Miranda v. Arizona, 384 U.S. 436, 460 (1966). We
need not reach these claims because his challenge to the search warrant is
dispositive.
                                          7


evidence of any drug possession, large or small, drug use, or observation of drugs

which was determined to be reliable in the search warrant application.” The district

court acknowledged the evidence in support of the search warrant was “not

overwhelming.”      But the court deferred to the magistrate’s probable cause

determination, noting “doubtful cases are resolved in favor of the validity of the

search warrant.”7

       Our review of the magistrate’s determination starts with the constitutional

principles at stake. Both Article I, section 8 of the Iowa Constitution and the Fourth

Amendment of the United States Constitution protect people from unreasonable

searches and seizures and require a search warrant to be supported by probable

cause. 8 U.S. Const. amend. IV; Iowa Const. art. I, § 8; Baker, 925 N.W.2d at 610.

Physical entry of the home is the “chief evil” the wording of those provisions

protects against. Payton v. New York, 445 U.S. 573, 585 (1980).

       The test for probable cause is “whether a person of reasonable prudence

would believe a crime was committed on the premises to be searched or evidence

of a crime could be located there.” State v. Weir, 414 N.W.2d 327, 330 (Iowa

1987). Probable cause to search requires a probability determination of the nexus

between criminal activity, the things to be seized, and the place to be searched.

State v. Seager, 341 N.W.2d 420, 427 (Iowa 1983).             We interpret warrant



7 The district court found an error in Higgins’s zip code on the warrant application
was unimportant in its probable cause determination. The court found the
application sufficiently described the location to be searched. See State v. Randle,
555 N.W.2d 666, 669 (Iowa 1996).
8 Because Higgins does not advance a distinct analytical framework under the

Iowa Constitution, we choose to apply the federal framework and consider his state
and federal claims concurrently. State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019).
                                            8

applications “in a common sense, rather than a hypertechnical, manner.” State v.

Shanahan, 712 N.W.2d 121, 132 (Iowa 2006). And as a reviewing court we owe

“great deference” to the magistrate’s finding of probable cause. The magistrate

must have a “substantial basis” when considering the totality of circumstances for

concluding the search would uncover evidence of wrongdoing. Illinois v. Gates,

462 U.S. 213, 236 (1983).

       But reviewing for a substantial basis does not mean we act as a “rubber

stamp” for the magistrate’s approval of a warrant. See W. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 11.7(c) (5th ed.). “[R]eviewing

courts will not defer to a warrant based on an affidavit that does not ‘provide the

magistrate with a substantial basis for determining the existence of probable

cause.’” United States v. Leon, 468 U.S. 897, 915 (1984) (citation omitted). A

substantial basis requires more than speculation by law enforcement that a person

who associates with other drug users or dealers is probably dealing drugs himself.

See State v. Reniff, 768 N.E.2d 667, 672 (Ohio Ct. App. 2001) (finding no

substantial basis for probable cause finding when search warrant application made

only “guilt-by-association” allegations).

       To convince the magistrate that evidence of a crime could be located at

Higgins’s residence, the sheriff presented seven strands of information:

(1) deputies saw Higgins at Straight’s house when conducting surveillance in early

spring of 2018 before executing a search warrant there in April; (2) after his arrest,

Straight called Kanealy from jail, telling him to retrieve bond money from Higgins’s

home; (3) deputies compiled a list of six vehicle owners and two pedestrians who

stopped at Higgins’s home for short stints during four days of surveillance;
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(4) Higgins had a conviction for possession of a controlled substance in October

2017; (5) the sheriff received “anonymous information from concerned citizens”

who had been inside Higgins’s residence and seen cocaine, methamphetamine,

and a large amount of marijuana; and (6) according to his probation officer,

Straight tested positive for cocaine and admitted aiding in cocaine distribution. The

seventh consideration appeared in the abstract of testimony.             There, the

magistrate accepted the sheriff’s implication that Higgins was involved in the drug

trade because he lived in an “unkept” and “low value” house and had no job yet

had $2500 in cash “readily available.”9

       Among these seven strands, the only information tying illegal drugs to

Higgins’s home were the anonymous tips that the magistrate declined to consider

because the sheriff offered no assurance of their reliability. Without that strand,

the substantial basis for probable cause unravels. The remaining information,

considered in its totality, does not allow the magistrate to make a probability

determination as to the nexus between the contraband to be seized and the place

to be searched.

       No doubt the information that Higgins associated with Straight and Straight

directed a third person to get cash from Higgins’s home raises suspicion. But we

must remove from our substantial-basis determination the sheriff’s assertion



9 Higgins complains that abstract of the sheriff’s testimony reveals a reckless
disregard for the truth. See State v. Groff, 323 N.W.2d 204, 206–08 (Iowa 1982)
(discussing Franks standard); see also Franks, 438 U.S. at 155–56. Higgins
asserts the sheriff knew he worked as a mechanic out of his garage and thus had
legitimate income. But the record does not show the sheriff had this knowledge
when he applied for the search warrant. So we cannot address Higgins’s Franks
claim.
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Higgins had $2500 “readily available” to bond out Straight. See State v. McNeal,

867 N.W.2d 91, 103 (Iowa 2015) (allowing reviewing court to “excise” unreliable

information presented in application for search warrant). The sheriff provided the

issuing magistrate no information about who posted the bond for Straight or the

source of those funds.

       The sheriff explained, based on his training and experience, individuals

involved in the distribution of illegal narcotics often possess large sums of cash.

But as Higgins underscores, what’s missing is information Kanealy followed

through with Straight’s request to obtain money from Higgins’s residence. The

assumption Higgins possessed $2500 at his house and Kanealy used it to pay

Straight’s bond is without foundation.        Absent that connection, the jail call

contributes little to the probable-cause finding.      At most, the call reinforces

Straight’s confederacy with Higgins.

       The jail call did prompt the sheriff to order surveillance of Higgins’s

residence. In four days, deputies noted eight short-term visitors. In his affidavit,

the sheriff averred: “The traffic that we have observed at Kole’s residence and

logged in the past few days shows that he is distributing illegal narcotics out the

house.” It is true “constant traffic coming and going from” a residence when the

visitors stay for a short time may support a finding of probable cause that drug

trafficking is occurring. See State v. Sallis, No. 17-1327, 2019 WL 1055779, at *1

(Iowa Ct. App. Mar. 6, 2019); see also State v. Pargo, No. 10-1492, 2012 WL

1058223, at *5 (Iowa Ct. App. Mar. 28, 2012) (identifying “high volume of short-

term vehicle and foot traffic” as contributing to substantial basis for probable cause
                                          11


determination). But an average of two visitors per day can scarcely be classified

as “constant” or “high volume” traffic.

       As the district court highlighted at the suppression hearing, law enforcement

did not verify that any of the eight visitors left Higgins’s house with narcotics. The

deputies took down license plate numbers. And the sheriff determined four of the

six cars that stopped at Higgins’s house were registered to people with convictions

for possession of drugs or drug paraphernalia. The sheriff told the magistrate the

deputies positively identified five of the visitors. But the prosecutor later corrected

the record, admitting they only identified two guests (one of those being Straight

who visited Higgins’s house on April 6). Like the jail call, this short-term traffic

contributes less to the magistrate’s probable-cause finding than the sheriff

promotes in the narrative.

       All in all, the sheriff’s affidavit lacked facts to support an inference that

evidence of drug activity would be found at Higgins’s home. The sheriff wrote that

based on his twelve years of “working narcotics” for Greene County, he believed

Higgins was distributing illegal drugs out of his Scranton residence. “An officer’s

opinion based on his personal experiences as a police officer is a factor for the

judge to consider in reviewing an application for a warrant.” State v. Wells, 629

N.W.2d 346, 355 (Iowa 2001). But an affiant’s general averment about training

and experience alone cannot substitute for a sufficient nexus to justify the search

of a suspected drug trafficker’s residence. See United States v. Schultz, 14 F.3d

1093, 1097 (6th Cir. 1994); United States v. Rios, 881 F. Supp. 772, 775 (D. Conn.

1995); see also United States v. Rosario, 918 F. Supp. 524, 531 (D.R.I. 1996) (“To

permit a search warrant based solely upon the self-avowed expertise of a law-
                                        12


enforcement agent, without any other factual nexus to the subject property, would

be an open invitation to vague warrants authorizing virtually automatic searches of

any property used by a criminal suspect.”).

       Pointing us to the warrant application’s shortcomings, Higgins criticizes the

deputies for not conducting “controlled buys, trash rips, [or] stops of vehicles” to

support the probable-cause finding.      To counter that point, the State cites

Godbersen for the proposition that courts may uphold warrants without “direct”

observation. 493 N.W.2d at 855 (citing Groff, 323 N.W.2d at 212).

       No question, a magistrate may find a nexus to the place to be searched “by

considering the type of crime, the nature of the items involved, the extent of the

defendant’s opportunity for concealment, and the normal inferences as to where

the defendant would be likely to conceal the items.” See Groff, 323 N.W.2d at 212.

But in both Groff and Godbersen, law enforcement offered strong circumstantial

evidence in the warrant application that proof of drug trafficking could be found in

the place to be searched. In Groff, the affidavit disclosed a large field containing

marijuana plants in various stages of growth close to the defendant’s residence.

Id. In Godbersen, the application noted police arrested a motorist with packages

of marijuana “evenly weighed and packaged” in his car; the motorist lived with

Godbersen, and both had extensive criminal records. 493 N.W.2d at 855. The

magistrate issued the warrant based on an expert opinion that scales and

packaging materials for the seized drugs could be found at their residence. Id.

       Unlike the warrant applications in Groff and Godbersen, the sheriff’s

investigation here featured no seized narcotics that could be connected to

Higgins’s residence by either direct or circumstantial evidence.
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       Without the detection of drugs coming into or going out of Higgins’s

residence, the State pins its argument for upholding the warrant on “reputation”

evidence.10 At oral argument, the State ventured the most analogous case to

Higgins’s situation was State v. Padavich, 536 N.W.2d 743 (Iowa 1995). There,

the court held a magistrate may consider a suspect’s “history of involvement in the

drug trade” when making his or her probable cause determination. Padavich, 536

N.W.2d at 748. Under Padavich, Higgins’s conviction for drug possession about

six months before the warrant application was a proper consideration in

determining probable cause. But that conviction does not automatically open the

door to his house. See State v. Kahn, 555 N.W.2d 15, 18 (Minn. Ct. App. 1996)

(holding more than “mere possession” of drugs “is required to demonstrate

probable cause that an individual is a dealer and that his home contains evidence

or contraband”).

       After our de novo review of the totality of evidence, we find the affidavit did

not offer the magistrate a substantial basis for determining the existence of

probable cause. The jail call by Straight, the smattering of largely unidentified

short-term visitors over four days, and the reputation evidence—viewed

collectively—“is simply not sufficient to support probable cause for a search

warrant.” See State v. Myers, 570 N.W.2d 70, 75 (Iowa 1997). Even after we draw

all reasonable inferences, we cannot decide in favor of upholding the search

warrant. The information in the application is insufficient in its totality to provide

probable cause to believe drugs would be found inside Higgins’s home. We thus


10Like the magistrate, we refuse to consider the anonymous tips about Higgins
dealing drugs relayed by the sheriff.
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find the district court should have suppressed the evidence discovered in executing

the search warrant. We reverse Higgins’s convictions and remand for proceedings

consistent with this opinion.

       REVERSED AND REMANDED.
