               IN THE SUPREME COURT OF IOWA
                             No. 57 / 06-0431

                           Filed June 15, 2007


STATE OF IOWA,

      Appellant,

vs.

TERRY LYNN McGRANE,

      Appellee.


      Appeal from the Iowa District Court for Cerro Gordo County, John S.

Mackey, Judge.



      State seeks discretionary review of district court decision suppressing

drug evidence discovered in defendant’s home and his statements admitting

ownership of the contraband. AFFIRMED.



      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant

Attorney General, and Paul L. Martin, County Attorney, for appellant.


      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant State Appellate Defender, for appellee.
                                     2

STREIT, Justice.

      Deputy sheriffs arrested Terry McGrane in his home. They had a

valid arrest warrant for violating probation. After McGrane was arrested,

handcuffed, and seated at the kitchen table, two deputies went to the

upstairs area of the home and discovered drugs, cash, and drug

paraphernalia. After this initial search, McGrane was taken to jail and the

deputies obtained a search warrant. McGrane moved to suppress all of the

evidence seized as well as his incriminating statements concerning the

evidence.    We find the deputies’ initial search violated McGrane’s

constitutional right to be free from unreasonable searches. The initial

search was neither a search incident to arrest nor a valid protective sweep.

Moreover, the evidence was not in “plain view.” The State failed to prove the

evidence was obtained through an independent source. Consequently, the

district court properly excluded all of the evidence and incriminating

statements under the exclusionary rule. We affirm the district court.

      I.    Facts and Prior Proceedings

      On July 14, 2005, Cerro Gordo County Deputy Sheriff Matt Klunder

was surveilling a house in Mason City looking for McGrane. McGrane was

wanted on an outstanding arrest warrant for violating the terms of his
probation. Shortly after 3:00 p.m., Deputy Klunder saw Alberto Ramon, the

brother of McGrane’s girlfriend, Rosemary Ramon, leave the residence and

drive off in a Chevy Blazer. Deputy Klunder knew Alberto’s driver’s license

was suspended so he stopped him. Alberto told Deputy Klunder McGrane

was in the house.

      Being otherwise occupied with the traffic stop, Deputy Klunder called

Chief Deputy David Hepperly to let him know McGrane’s whereabouts.

Deputy Hepperly and Deputy Nathan Ewalt arrived at the house at

approximately 3:20 p.m. Deputy Ewalt knocked on the residence’s side
                                          3

door, which leads directly into the kitchen. Rosemary’s daughter, Melissa

Schutz, who was in her early 20s, answered the door. Schutz initially

denied McGrane was there.             When the deputies told her they had

information he was there, Schutz’s demeanor changed and she allowed the

deputies to enter the home. The three proceeded into the kitchen area.

Around the corner of the kitchen, there was a stairwell leading to the

second floor of the one-and-a-half story house. Schutz yelled up the stairs

for McGrane. Deputy Hepperly heard someone moving around upstairs and

started up the staircase. When Deputy Hepperly was about a third of the

way up the stairs, McGrane appeared from behind a bed sheet curtain

which was used to cordon off a small storage area to the right of the top of

the steps.    Deputy Hepperly saw McGrane put something behind the

curtain as he emerged from behind it. Deputy Hepperly informed McGrane

of the arrest warrant and ordered him downstairs. McGrane walked down

the stairs and into the kitchen. 1 McGrane was told he was being arrested

pursuant to the warrant.         Deputy Ewalt searched him, placed him in

handcuffs and sat him down on a kitchen chair. According to Deputy

Ewalt, McGrane was cooperative at all times.

       Deputy Hepperly contacted Deputy Klunder and told him McGrane
was in custody. Shortly thereafter, Deputy Klunder arrived at the house

and Deputy Hepperly told him McGrane tried to hide something behind the

curtain upstairs. Deputy Klunder and Deputy Hepperly then went upstairs,

leaving McGrane in Deputy Ewalt’s custody.

       The record does not clearly explain the layout of the second level of

the residence. It appears the stairway led to an open area and did not

include separate rooms or closets.            The living area included a bed,


      1It is unclear from the record whether Deputy Ewalt exerted physical control over

McGrane on the stairway or at the bottom of the stairs.
                                      4

couch/futon, coffee table, and computer stand. While upstairs, Deputy

Klunder observed drugs and paraphernalia strewn on the coffee table. The

deputy also saw a scale, some baggies on the bed, and “a pillow type item

with a zipper on it that had a baggie sticking out of it.” Deputy Klunder

removed the baggie and found marijuana and cash. Deputy Klunder also

saw marijuana in a tray on the computer stand. Meanwhile, from behind

the bed sheet curtain, Deputy Hepperly retrieved a small leather pouch,

which contained $60 in cash and thirteen small baggies of what appeared to

be methamphetamine. Among the general disarray of the upstairs living

area, the deputies also found several items of property in unopened

packages.

      Returning downstairs, Deputy Klunder asked McGrane about the

items upstairs, and McGrane admitted “there was drug paraphernalia in the

upstairs.” Sometime following this exchange, Deputy Ewalt took McGrane

to the county jail for processing.

      Deputies Klunder and Hepperly contacted Investigator Logan Wernet

of the Mason City Police Department for assistance in applying for a search

warrant. Based on the information Investigator Wernet received from them

regarding their initial search of the second floor, the surveillance conducted
by Deputy Hepperly the day before, and McGrane’s criminal history (which

included convictions for possession and delivery of drugs), Investigator

Wernet applied for and obtained a warrant to search the house for drugs,

weapons, and drug-related evidence. The deputies seized multiple baggies

of methamphetamine and marijuana, as well as scales, a scanner and

various items of drug paraphernalia.

      At about 10:30 that night, Deputies Hepperly and Klunder

interviewed McGrane at the jail.       Deputy Klunder read McGrane the

Miranda warning at the beginning of the interview.         McGrane did not
                                     5

request counsel at any time during the interview.         He made several

incriminating statements concerning the evidence seized from his home.

      McGrane was charged with three counts: (1) possession of more than

five grams of methamphetamine with intent to deliver in violation of Iowa

Code section 124.401(1) (2005), a class “B” felony, (2) a tax stamp violation

under Iowa Code section 453B.12, a class “D” felony, and (3) possession of

marijuana as a third or subsequent offense in violation of Iowa Code section

124.401(5), a class “D” felony. McGrane pled not guilty. He alleged the

deputies’ initial search of his home following his arrest violated his

constitutional rights under the Fourth Amendment of the United States

Constitution and Article 1, section 8 of the Iowa Constitution. McGrane

moved to suppress all evidence seized as well as any statements made by

him after his arrest. The State resisted, citing several exceptions to the

search warrant requirement.

      The parties presented evidence at a suppression hearing. The district

court granted McGrane’s motion to suppress, in its entirety. We granted

the State’s application for discretionary review.

      II.   Standard of Review

      We review constitutional claims de novo. State v. Heminover, 619
N.W.2d 353, 356 (Iowa 2000), overruled in part on other grounds by State v.

Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). This court independently

evaluates the defendant’s claim under the totality of the circumstances.

State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997) (quoting State v. Cook, 530

N.W.2d 728, 731 (Iowa 1995)). The court gives deference to the district

court’s factual findings due to its opportunity to assess the credibility of

witnesses, but the court is not bound by those findings.        Turner, 630

N.W.2d at 606.
                                      6

       III.   Merits

       McGrane alleges his constitutional right to be free from unreasonable

searches and seizures was violated when the deputies searched the second

floor of his home after he was arrested because the deputies did not have a

search warrant at the time. See U.S. Const. amend. IV; Iowa Const. art. 1,

§ 8.    A search conducted without a valid search warrant is per se

unreasonable unless one of the well-known exceptions to the warrant

requirement applies. State v. Kubit, 627 N.W.2d 914, 918 (Iowa 2001)

(citations omitted). The State argues the following exceptions apply to the

present case: (1) search incident to a lawful arrest; (2) protective sweep; and

(3) search of items in plain view. See State v. Naujoks, 637 N.W.2d 101, 107

(Iowa 2001) (citing State v. Cline, 617 N.W.2d 277, 282 (Iowa 2000))

(recognizing these exceptions). The State has the burden of proving by a

preponderance of the evidence that a warrantless search falls within one of

the exceptions. Id. at 107–08 (citing State v. Gillespie, 619 N.W.2d 345, 350

(Iowa 2000)).

       A.     Exceptions to the Warrant Requirement

       McGrane does not deny the deputies had a right to arrest him in his

home. The deputies had a warrant for his arrest based on an alleged
violation of his probation. The Supreme Court has held “an arrest warrant

founded on probable cause implicitly carries with it the limited authority to

enter a dwelling in which the suspect lives when there is reason to believe

the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S. Ct.

1371, 1388, 63 L. Ed. 2d 639, 661 (1980); accord State v. Luloff, 325 N.W.2d

103, 105 (Iowa 1982). Moreover, Schutz consented to the deputies entering

the home.

       Nevertheless, McGrane argues the deputies’ search of the upstairs

portion of his home after he was arrested was unreasonable and therefore
                                              7

unconstitutional. We now consider the State’s proffered justifications for

the warrantless search.

       1.      Search Incident to Arrest

       The State argues the deputies’ search of the upstairs portion of

McGrane’s home was a valid search incident to arrest. The Supreme Court

has “recognized there is ample justification for the search of an arrestee’s

person and the area within his or her immediate control.” State v. Canas,

597 N.W.2d 488, 492 (Iowa 1999) (citing Chimel v. California, 395 U.S. 752,

763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)), overruled in part

on other grounds by Turner, 630 N.W.2d at 606 n.2.                        The area to be

searched is limited to the arrestee’s “grab” area. Chimel, 395 U.S. at 763,

89 S. Ct. at 2040, 23 L. Ed. 2d at 694. “The purpose of such a search is to

prevent the arrestee from destroying evidence or gaining possession of a

weapon which could be used to resist arrest or effect an escape.” Canas,

597 N.W.2d at 492 (citing Chimel, 395 U.S. at 763, 89 S. Ct. at 2040, 23

L. Ed. 2d at 694). Thus, in order to be constitutional, “[a] search incident to

an arrest must be substantially contemporaneous with the arrest and

confined to the immediate vicinity of the arrest.”                     Id. (citing Vale v.

Louisiana, 399 U.S. 30, 33, 90 S. Ct. 1969, 1971, 26 L. Ed. 2d 409, 413

(1970)). The search-incident-to-arrest exception does not provide authority

“for routinely searching any room other than that in which an arrest

occurs.” Chimel, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694.

       Both parties contend we must first decide where in the home

McGrane was arrested in order to determine whether the deputies’

warrantless search was a valid search incident to arrest. 2 The State claims

       2For   Fourth Amendment purposes, an arrest occurs when two conditions are
satisfied: (1) the officers assert their authority to arrest and the purpose of the arrest; and
(2) either the defendant submits to their control or the officers apply physical force in order
to subdue him. California v. Hodari D., 499 U.S. 621, 626–27, 111 S. Ct. 1547, 1551, 113
L. Ed. 2d 690, 697 (1991) (quoting Rollin M. Perkins, The Law of Arrest, 20 Iowa L. Rev.
                                           8

McGrane was arrested at the top of the stairs when he complied with

Deputy Hepperly’s order to come downstairs. According to the State, the

search-incident-to-arrest exception allowed the deputies to search the

upstairs area after McGrane was handcuffed downstairs. McGrane, on the

other hand, contends he was not arrested until he was downstairs in the

kitchen and one of the deputies handcuffed him. Under the latter theory,

the upstairs portion of McGrane’s home would certainly not be “the

immediate vicinity of the arrest.” Canas, 597 N.W.2d at 492; see People v.

Robbins, 369 N.E.2d 577, 580 (Ill. App. Ct. 1977) (holding officers greatly

exceeded the permissible scope of a search incident to arrest when they

went upstairs and searched the defendant’s room after he was restrained at

the bottom of the stairs).

       However, we need not determine where the arrest occurred. Even if

we found the arrest took place at the top of the stairs, the deputies were still

not permitted to search the upstairs area because McGrane immediately left

that area and remained handcuffed downstairs in the kitchen under armed

guard while the search was conducted. Compare Canas, 597 N.W.2d at 493

(holding officers’ search of defendant’s motel room after he was arrested and

handcuffed upon opening the door was not a valid search incident to arrest
because he was not in the motel room at the time of the search), with State

v. Shane, 255 N.W.2d 324, 327–28 (Iowa 1977) (holding officers’ search of

the defendant’s motel room after he was arrested and handcuffed was a

valid search incident to arrest because the search was confined to the small

motel room where the arrest occurred, it took place within a minute or two

after the arrest, and the defendant was still in the room). The justification

________________________
201, 206 (1940)); State v. Rains, 574 N.W.2d 904, 910 (Iowa 1998). Similarly, Iowa Code
section 804.5 defines an arrest as “the taking of a person into custody when and in the
manner authorized by law, including restraint of the person or the person’s submission to
custody.”
                                      9

of a search incident to arrest is to prevent the arrestee from destroying

evidence or gaining possession of a weapon. McGrane had no realistic

ability to get back upstairs considering his location and the fact he was

restrained.

      The search-incident-to-arrest exception to the warrant requirement

must be narrowly construed and limited to accommodating only those

interests it was created to serve. United States v. Graham, 638 F.2d 1111,

1114 (7th Cir. 1981) (citing Arkansas v. Sanders, 442 U.S. 753, 759–60, 99

S. Ct. 2586, 2591, 61 L. Ed. 2d 235, 242 (1979)). We acknowledge some

courts do not require the search area to be accessible to the defendant at

the time of the search. See, e.g., Northrop v. Trippett, 265 F.3d 372, 379

(6th Cir. 2001). However, this court has expressly rejected such a holding

in nonvehicle situations.    Canas, 597 N.W.2d at 493 n.2.        In State v.

Edgington, 487 N.W.2d 675 (Iowa 1992), we upheld the search of the

contents of a passenger compartment of a vehicle as part of a search

incident to arrest even though the defendant had been removed from the

vehicle and secured elsewhere. Edgington, 487 N.W.2d at 678. In Canas,

we confined our holding in Edgington to “situations in which one’s arrest

involves some type of occupancy in a vehicle.” Canas, 597 N.W.2d at 493

n.2. This makes sense because “we take any government intrusion into a

citizen's dwelling very seriously.” Kubit, 627 N.W.2d at 918 (emphasis

added). Thus, we agree with the district court the deputies’ initial search of

the upstairs area was not a valid search incident to arrest.

      2.      Protective Sweep

      The State also claims the deputies’ search of the upstairs area was

justified as a “protective sweep or cursory safety check.” The combination

of probable cause and exigent circumstances is a recognized exception to

the warrant requirement. We have previously found danger of violence and
                                      10

injury to officers to be an exigent circumstance, which may excuse the

requirement of a search warrant. State v. Holland, 389 N.W.2d 375, 381

(Iowa 1986). “The officers must have specific, articulable grounds to justify

a finding of exigency.” Naujoks, 637 N.W.2d at 109. The reasonableness of

the officers’ search is based on an objective—as opposed to subjective—

standard. Id. (citing Cline, 617 N.W.2d at 280–82). The Supreme Court has

emphasized a protective sweep is not a full search of the premises:

      [It] may extend only to a cursory inspection of those spaces
      where a person may be found. The sweep lasts no longer than
      is necessary to dispel the reasonable suspicion of danger and
      in any event no longer than it takes to complete the arrest and
      depart the premises.

Maryland v. Buie, 494 U.S. 325, 335–36, 110 S. Ct. 1093, 1099, 108

L. Ed. 2d 276, 287 (1990).

      The State interprets Buie as recognizing two types of protective

sweeps: a limited sweep of the arresting area without justification versus a

more expansive search of the premises with justification. In Buie, the

Supreme Court said:

      We . . . hold that as an incident to the arrest the officers could,
      as a precautionary matter and without probable cause or
      reasonable suspicion, look in closets and other spaces
      immediately adjoining the place of arrest from which an attack
      could be immediately launched. Beyond that, however, we
      hold that there must be articulable facts which, taken together
      with the rational inferences from those facts, would warrant a
      reasonably prudent officer in believing that the area to be
      swept harbors an individual posing a danger to those on the
      arrest scene.

Buie, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286. The State

argues the deputies’ initial search satisfied either Buie “prong.”

      The first part of the statement in Buie simply acknowledges the

search-incident-to-arrest exception. Officers are permitted to search the

arrestee’s immediate grab area for weapons and evidence without any
                                     11

reasonable suspicion. This search would necessarily include spaces where

a person could be hidden. If a particular search does not satisfy the search-

incident-to-arrest exception because the officers previously abandoned the

arrest site, then the first prong of the Buie statement will not validate the

search because it is limited to protecting officers from an immediate attack.

We have already held the deputies’ search in the present case was not a

valid search incident to arrest. Thus, for it to be a valid protective sweep,

the State was required to produce “articulable facts which . . . would

warrant a reasonably prudent officer in believing that the area . . . swept

harbor[ed] an individual posing a danger to those on the arrest scene.”

Buie, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286.

      The State offers several facts it contends would justify a reasonably

prudent officer to believe individuals were present who posed a danger to

them: McGrane appeared to be dealing drugs out of his home; Schutz

initially lied to the deputies when asked if McGrane was home; and several

people were in the home while the deputies were on the premises. We find

none of these facts justify a protective sweep of the upstairs area of the

home.

      The State offered no evidence McGrane was believed to have guns or
weapons in his home.      Compare Naujoks, 637 N.W.2d at 109 (holding

officers’ warrantless search of defendant’s apartment was not a valid

protective sweep in part because there was no evidence that guns or any

other weapons were involved in the burglary), with Holland, 389 N.W.2d at

380–81 (holding officers’ warrantless search was a valid protective sweep

because the arresting officers knew a gun had been stolen in the burglary

and the defendant’s accomplice was still at large). Moreover, the State

offered no evidence to suggest dangerous people may be hiding on the

premises. See United States v. Kimmons, 965 F.2d 1001, 1009 (11th Cir.
                                     12

1992) (holding agents had articulable facts to justify protective sweep of

defendant’s home immediately following his arrest for conspiracy to rob an

armored car: the FBI had just apprehended two of the defendant’s armed

accomplices and had knowledge of fourth conspirator whose identity and

whereabouts were unknown); United States v. Gilbert, 774 F.2d 962, 964

(9th Cir. 1985) (holding officers were permitted to conduct a protective

sweep of defendant’s home because they had information defendant might

be in the company of another fugitive who was reported to be armed, a car

not belonging to defendant was in front of her home and officers surveilling

the home suspected movement inside). Although it may be common for

drug dealers to possess weapons, suspicion of drug dealing alone is not

enough to justify a protective sweep. United States v. Hauk, 412 F.3d 1179,

1187 (10th Cir. 2005) (rejecting police practice of automatic protective

sweeps of “drug houses” on assumption they are inherently dangerous); see

Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421, 137

L. Ed. 2d 615, 624 (1997) (rejecting “felony drug investigation” exception to

knock-and-announce rule). The State is still required to allege specific facts

and circumstances upon which reasonable inferences could be drawn to

support a reasonable police officer’s belief that weapons were on the

premises and that someone else could have had access to those weapons

and inflicted harm.

      There is also no evidence to suggest the people the deputies

encountered at the home were dangerous. Schutz came to the door when

the deputies knocked.       Although she initially lied about McGrane’s

presence, she eventually cooperated.      Apparently, the deputies did not

perceive her as a threat because they allowed her to remain in the kitchen

unrestrained. At some point, a man came up from the basement and was

allowed to leave. The deputies did not then do a protective sweep of the
                                          13

basement. McGrane’s girlfriend, Rosemary, and her sister came to the

house while the deputies were there. Apparently, their presence did not

pose a danger to the deputies because they were allowed to enter the home

and stay in the kitchen while the deputies conducted their search.

      In short, there was simply no evidence to find a reasonably prudent

officer would believe the upstairs area harbored one or more dangerous

individuals in order to justify the initial search. “This situation did not

involve any objective indication of fear of violence or jeopardy more than any

other police encounter with persons suspected of criminal activity would

involve.” Naujoks, 637 N.W.2d at 109. Deputy Ewalt even conceded at the

hearing “the threat level wasn’t raised for [him].” He testified he saw no

need to secure the home.

      Even if the deputies had reasonable suspicion that individuals were

present who posed a danger to them, their search of the upstairs portion of

McGrane’s home exceeded “those spaces where a person may be found.” 3

Moreover, the deputies had no legitimate purpose for remaining on the

premises after McGrane was arrested.              A protective sweep cannot last

“longer than it takes to complete the arrest and depart the premises.”

Buie, 494 U.S. at 335–36, 110 S. Ct. at 1099, 108 L. Ed. 2d at 287. We
agree with the district court that the deputies’ search was not a valid

protective sweep.

      3.       Plain View

      Finally, the State argues a search warrant was not necessary for the

deputies’ initial search because the evidence seized was in plain view. “For

the plain view exception to apply, police must be rightfully in the place that

allows them to make the observation.” Kubit, 627 N.W.2d at 918 (citations

omitted). In addition, the State has the burden of proving (1) the item

      3They   unzipped one small leather pouch and pulled a baggie out of a pillow.
                                      14

seized was in plain view and (2) its “incriminating character” was

“ ‘immediately apparent.’ ” Horton v. California, 496 U.S. 128, 136, 110 S.

Ct. 2301, 2308, 110 L. Ed. 2d 112, 123 (1990) (quoting Coolidge v. New

Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564, 583

(1971)).

      As we have already made clear, the deputies were not “rightfully” in

the upstairs portion of the home after McGrane was arrested, handcuffed,

and placed in the kitchen downstairs. Moreover, the deputies did more

than simply observe evidence out in the open. Thus, the district court

correctly held the plain view exception was not applicable.

      B.    Exclusionary Rule

      We find the initial search by the deputies in this case to be violative of

McGrane’s constitutional rights because the deputies did not have a search

warrant at the time and none of the above-mentioned exceptions to the

warrant requirement was applicable. The exclusionary rule requires the

suppression of evidence discovered as a result of illegal government activity.

Naujoks, 637 N.W.2d at 111 (citing Mapp v. Ohio, 367 U.S. 643, 655, 81

S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961)). “[T]he exclusionary rule

also prohibits the introduction of derivative evidence, both tangible and
testimonial, that is the product of the primary evidence, or that is otherwise

acquired as an indirect result of the unlawful search, up to the point at

which the connection with the unlawful search becomes ‘so attenuated as to

dissipate the taint.’ ” Murray v. United States, 487 U.S. 533, 536–37, 108

S. Ct. 2529, 2533, 101 L. Ed. 2d 472, 480 (1988) (quoting Nardone v. United

States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307, 312 (1939)).

Justice Frankfurter coined the phrase, “fruit of the poisonous tree,” to

illustrate the concept of tainted evidence. Naujoks, 637 N.W.2d at 111

(quoting Nardone, 308 U.S. at 341, 60 S. Ct. at 268, 84 L. Ed. at 312). The
                                       15

purpose of excluding such evidence is twofold: to deter lawless police

conduct and to protect the integrity of the judicial system. Id. (citations

omitted).

      However, there are exceptions to the exclusionary rule. In other

words, there are circumstances where the evidence is admissible

notwithstanding the illegal government conduct. The State argues the

independent source and inevitable discovery doctrines are applicable in this

case. Under the independent source doctrine, “it is possible to remove the

taint of a prior illegality by obtaining the same information or evidence

through means independent of the illegal conduct.” State v. Seager, 571

N.W.2d 204, 211 (1997).         The inevitable discovery doctrine is “an

extrapolation from the independent source doctrine:       Since the tainted

evidence would be admissible if in fact discovered through an independent

source, it should be admissible if it inevitably would have been discovered.”

Murray, 487 U.S. at 539, 108 S. Ct. at 2534, 101 L. Ed. 2d at 481–82. The

justification for these exceptions is as follows:

      [T]he interest of society in deterring unlawful police conduct
      and the public interest in having juries receive all probative
      evidence of a crime are properly balanced by putting the police
      in the same, not a worse, position that they would have been in
      if no police error or misconduct had occurred. When the
      challenged evidence has an independent source, exclusion of
      such evidence would put the police in a worse position than
      they would have been in absent any error or violation.

Nix v. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d

377, 387 (1984) (citations omitted).

      Because the State presented no evidence the drugs found in

McGrane’s home inevitably would have been discovered by lawful means,

we find the inevitable discovery doctrine inapplicable. We now consider the

independent source rule.
                                    16

      The State argues the evidence is admissible because it was also

discovered via a valid search warrant. McGrane argues the search warrant

was not an independent source because the affidavit supporting the

warrant application was based in part on tainted information (e.g. the

presence of drugs in the upstairs portion of the home and McGrane’s

admission).

      The Supreme Court in Murray created a test to determine whether a

search pursuant to a warrant was in fact a genuinely independent source of

illegally obtained information and tangible evidence. It held a subsequent

search warrant is not an independent source “if 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.” Murray, 487 U.S. at 542,

108 S. Ct. at 2536, 101 L. Ed. 2d at 483–84.

      To determine whether the information based on the deputies’ illegal

search affected the magistrate’s decision to issue the search warrant, we

excise the illegally obtained information from the warrant application and

determine whether the remaining legally obtained information supports

probable cause. United States v. Madrid, 152 F.3d 1034, 1039–40 (8th Cir.
1998); accord Seager, 571 N.W.2d at 212 n.5. Without the illegally obtained

information, Investigator Wernet’s affidavit alleged the following: “Deputy

Hepperly received information from a concerned citizen around the first part

of July that McGrane was selling drugs and trading drugs for stolen

property.” Deputy Hepperly was watching the house on July 13, the day

before McGrane’s arrest, and saw “short term traffic to the residence.” One

of these persons was Tom Evans, whom Deputy Hepperly knew to be a drug

user. When questioned, Evans’s companion told Deputy Hepperly they had

gone to the house to buy drugs.       On July 14, Deputy Klunder was
                                            17

serveilling McGrane’s house in order to catch him at home and arrest him

on an outstanding warrant. Deputy Klunder learned through Alberto that

McGrane was at the house. Deputy Klunder asked Deputies Hepperly and

Ewalt to go to the house and arrest McGrane.                    While inside, Deputy

Hepperly saw McGrane put something behind the bed sheet curtain as he

emerged from an upstairs area of the home. McGrane’s criminal history

included a 1995 conviction for delivery of drugs and a 2004 conviction for

possession.

      “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.” Naujoks, 637

N.W.2d at 108 (citing State v. Poulin, 620 N.W.2d 287, 290 (Iowa 2000)).

With the exception of McGrane’s criminal history, all of the information in

the application was very recent and strongly suggested drug-dealing

activity. McGrane’s furtive gesture behind the bed sheet curtain at the top

of the steps indicated he was attempting to hide something from the

deputies. We find the above information is sufficient for probable cause.

      Under Murray, we must also determine whether the deputies’

“decision to seek the warrant was prompted by what they had seen during
the initial entry.”      Murray, 487 U.S. at 542, 108 S. Ct. at 2536, 101

L. Ed. 2d at 483. In its ruling, the district court found the State presented

no evidence the deputies would have applied for the search warrant had

they not searched the upstairs portion of McGrane’s home. We scoured the

record and found no such evidence either. We agree with the district court

that the State failed to prove the search warrant was an independent

source. 4 Consequently, the district court correctly suppressed all evidence

seized in McGrane’s home as well as his statements to the police.

      4The   State argues suppressing the evidence would place it in a “worse position” than
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       IV.    Conclusion

       We conclude the district court properly suppressed the evidence

seized and McGrane’s statements to the police. The deputies’ initial search

of the upstairs portion of the home without a search warrant violated

McGrane’s Fourth Amendment rights. The search was neither a search

incident to arrest nor a protective sweep. Moreover, the evidence was not in

plain view because the deputies were not rightfully in the place that allowed

them to see the evidence.          Finally, the State failed to prove the later

obtained search warrant was in fact a genuinely independent source of the

evidence at issue here. The State presented no information indicating the

deputies would have sought a search warrant had they not illegally

searched the upstairs area.

       AFFIRMED.




________________________
if it had not engaged in the prior unlawful search in contravention to the independent
source doctrine. However, if the State cannot prove the deputies would have applied for a
warrant, then they are not prejudiced by suppressing the evidence found and the
incriminating statements made by McGrane.
