                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1791
                             Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KHAM KHIENE KHOANG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano

(motion to suppress) and David N. May (trial), Judges.



      Defendant appeals the denial of his motion to suppress. AFFIRMED.




      Paul J. Statler of Statler Law Firm, PLLC, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.




      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Kham Khiene Khoang appeals his conviction for possession of a controlled

substance with intent to deliver, second offense. Khoang claims due process

under the Iowa Constitution requires the recording of all police interrogations. He

also challenges the court’s ruling on his motion to suppress, claiming he was not

adequately informed of his Miranda rights prior to interrogation. We affirm.

      I.     Background Facts & Proceedings

      On June 29, 2016, officers obtained and executed a search warrant for a

home in Des Moines, Iowa. Also included in the search warrant were the residents,

Elizabeth Briseno and Khoang. Police had been surveilling the residence for

several months based on multiple tips from informants, including executing

controlled purchases of methamphetamine at the residence and examining

abandoned trash at the curb found to contain drug residue.          One informant

specifically identified Khoang as selling methamphetamine.

      When law enforcement arrived at the residence to execute the search

warrant, they found Khoang sitting outside in the driver’s seat of a vehicle. He was

taken into custody. An officer told Khoang they had a search warrant for the

residence but did not show him the warrant until after the residence was secured.

The search yielded Khoang’s cellular phone, over $2700 in cash in his pocket, and

methamphetamine and paraphernalia with drug residue in the vehicle and

residence. Khoang also provided the pass code to his phone. Text messages in

the phone indicated Khoang’s involvement in dealing drugs.

      An officer advised Khoang of his Miranda rights, which he stated he

understood. Khoang admitted to a daily methamphetamine habit and possessing
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methamphetamine. Khoang told the officer he would share his drugs with some

people, he had customers he would sell to, and described his sources to purchase

methamphetamine from. The interview was not recorded, and Khoang did not sign

a written waiver of his Miranda rights.1 Khoang was handcuffed at the time of the

interview, leaning against the car he had been seated in. Khoang was charged

with possession of methamphetamine with intent to deliver, as a second-offender,

in violation of Iowa Code section 124.401(1) (2016).

       Khoang filed several pro se motions to suppress, claiming the search was

illegal because the search occurred prior to the court’s approval and the warrant

lacked probable cause, Khoang was not read his Miranda rights and did not

knowingly and voluntarily waive his Miranda rights, and the warrant was not

returned to the issuing magistrate. Counsel later filed a supporting motion and

arguments.

       On August 17, 2017, the court held a hearing on Khoang’s three motions to

suppress. The court rejected all three. The court ruled the warrant was valid,

based on appropriate grounds, and properly issued prior to the search. The court

noted no precedent required returning a warrant to the specific issuing judge nor

required suppression for returning the warrant to a different judge in the same

jurisdiction.2 As to the Miranda questions, the court found more credible the

officer’s testimony Khoang had been advised of his Miranda rights prior to his

statements and Khoang spoke voluntarily with the officer. The court specifically


1
   Khoang’s roommate Briseno was offered and did sign a written Miranda waiver prior to
her police interview.
2
    The evidence shows the warrant was returned to a separate judge within the same
judicial district on July 29, 2016.
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noted a recording of the interview is not a requirement for the State to show the

statements are voluntary.

       In September 2017, a jury convicted Khoang. He now appeals the denial

of his pretrial motions to suppress his statements made to law enforcement and

makes a new constitutional due process claim.

       II.    Standard of Review

       Khoang claims the district court should have granted his motion to suppress

under both the Fifth and Fourteenth Amendments to the United States Constitution

and article I, section 9 of the Iowa Constitution. Therefore, our review is de novo.

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011); see also State v. Miranda, 672

N.W.2d 753, 758 (Iowa 2003) (reviewing motions to suppress based on Miranda

violations de novo). This review requires “an independent evaluation of the totality

of the circumstances as shown by the entire record.” State v. Turner, 630 N.W.2d

601, 606 (Iowa 2001) (internal quotation marks omitted). We consider both the

evidence from the suppression hearing and evidence presented at trial. State v.

Palmer, 791 N.W.2d 840 (Iowa 2010). The court gives “deference to the factual

findings of the district court due to its opportunity to evaluate the credibility of the

witnesses, but [is] not bound by such findings.” State v. Lane, 726 N.W.2d 371,

377 (Iowa 2007).

       III.   Merits

       A.     Constitutional Requirement to Record Interviews

       Khoang claims the due process clause of the Iowa Constitution requires

police record interrogations. Even if error had been preserved on this issue, this

argument is unavailing. In 1997, the Iowa Supreme Court categorically rejected
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the notion that any provision of the Iowa Constitution required law enforcement

personnel to record interrogations. State v. Morgan, 559 N.W.2d 603, 609 (Iowa

1997) (“We are confident, however, that such procedures are in no way mandated

by any provision in the Iowa Constitution.”).

       It is a well-known prerogative of our supreme court, the court of last resort

for the state, to determine state law and the duty of lower courts to follow the law

as expressed by the supreme court, even if they disagree. State v. Eichler, 83

N.W.2d 576, 578 (Iowa 1957); State v. Hughes, 457 N.W.2d 25, 28 (Iowa Ct. App.

1990) (declining defendant’s invitation to overrule applicable supreme court

precedent). The supreme court reserves to itself the right to revisit state law

precedent via overruling its holdings. See Bd. of Water Works Trs. v. Sac Cty. Bd.

of Supervisors, 890 N.W.2d 50, 57 (Iowa 2017). Accordingly, we are obliged to

decline Khoang’s request to overrule Morgan.

       B.     Motion to Suppress

       Khoang’s second claim appeals the district court’s denial of his motion to

suppress his interview with law enforcement. In particular, Khoang claims the law

enforcement officer did not inform him of his Miranda rights and so he could not

have knowingly and intelligently waived them.

       The evidence before the court included testimony from the officer and

testimony from Khoang. The officer testified to providing the Miranda warnings,

then engaging in a twenty to thirty minute conversation with Khoang covering a

wide range of topics including Khoang’s use habits, who he provided drugs to, and

his suppliers. Khoang testified the officer did not advise him of his Miranda rights

and that they only talked for around five minutes with the officer asking questions.
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       On this claim, the district court determined:

               With regard to the Miranda issue and question of testimony,
       the Court finds the officer’s testimony to, again, be credible that
       Miranda rights were issued to the defendant, and herein makes an
       express credibility determination, based on observation of the
       officer’s testimony as well as defendant’s testimony, and finds that
       the officer provided more credible testimony on that issue.

       Khoang challenges the district court’s credibility finding, claiming that

because the officer had Briseno sign a written waiver, but not Khoang, the officer

did not inform Khoang of his Miranda rights, and that Khoang did not knowingly,

intelligently, and voluntarily waive his rights. Khoang then reasserts his argument

that due process requires recording the officer reading him the Miranda warning,

or at the least requires a written waiver.

       Iowa law does not require a written waiver of Miranda rights for the waiver

to be effective. See State v. Bowers, 656 N.W.2d 349, 353 (Iowa 2002) (“Miranda

warnings may be orally transmitted to a subject in custody and the waiver of rights

attendant thereto may be oral or may be inferred from the facts.”). We apply a

totality-of-circumstances test to evaluate the adequacy of the State’s showing in a

Miranda challenge. See State v. Williams, 182 N.W.2d 396, 401 (Iowa 1970).

       On our de novo review, we agree with the district court. The evidence does

not support Khoang’s claims. Khoang testified the conversation only lasted five

minutes, not the twenty to thirty minutes described by the officer. However, the

officer was able to describe in detail a variety of topics discussed during their

conversation, information that would take longer than five minutes to convey, with

no rebuttal, denial, or any alternate description from Khoang regarding the

substance of the discussion.
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       While not bound by the court’s factual findings, we have long deferred to

the district court’s witness credibility determinations. State v. Lane, 726 N.W.2d

371, 377 (Iowa 2007).     After evaluating the totality of the circumstances, we

conclude the officer’s testimony was more credible.           We find Khoang’s

unsupported challenge of the court’s ability to fairly weigh the credibility of law

enforcement and suspects to be unpersuasive. The State has proven by a

preponderance of the evidence that Khoang was read his Miranda rights, and

knowingly, voluntarily, and intelligently waived them.

       AFFIRMED.
