                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0140
                               Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BOBBI LEE BARDEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Paul G. Crawford,

District Associate Judge.



      Bobbi Barden appeals her conviction for possession of methamphetamine,

first offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender (until withdrawal), and Ashley

Stewart, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
                                         2


VAITHESWARAN, Judge.

         A Madrid police officer responded to a “domestic situation” at a home

occupied by Bobbi Barden, her mother, and several children. The officer spoke to

Barden and her mother outside the home. After Barden went inside, the officer

engaged in a more exhaustive conversation with her mother, then entered the

home with the mother’s consent.

         Once inside, the officer asked Barden for consent to enter her bedroom.

Barden initially refused. She later equivocated on the search of her room but

agreed to a search of her purse. The officer found methamphetamine inside the

purse.

         The State charged Barden with possession of methamphetamine, first

offense, in violation of Iowa Code section 124.401(5) (2017). Barden moved to

suppress the evidence gained in the search of her purse.1 Following a hearing,

the district court denied that aspect of the suppression motion. The court tried

Barden on the minutes of testimony, found her guilty as charged, and imposed

judgment and sentence.

         On appeal, Barden contends the warrantless search of her purse violated

constitutional prohibitions against unreasonable searches and seizures. See State

v. Fleming, 790 N.W.2d 560, 563 (Iowa 2010) (enumerating rights). Specifically,

she argues her “consent to the search was given involuntarily.” See State v.

Reinier, 628 N.W.2d 460, 465 (Iowa 2001) (“A warrantless search conducted by




1
 Barden also challenged other aspects of the search, including a search of her room,
which the district court found was nonconsensual. Those aspects are not issues on
appeal.
                                           3

free and voluntary consent does not violate the Fourth Amendment.”); see also

State v. Pettijohn, 899 N.W.2d 1, 25 (Iowa 2017) (“[E]ffective consent to a

warrantless search establishes a waiver of an individual’s right to be free from

unreasonable searches and seizures under article I, section 8.”).

       The Iowa Supreme Court has applied the federal standard for effective

consent: “whether the consent was voluntarily given and not a result of duress or

coercion, expressed or implied.” See State v. Pals, 805 N.W.2d 767, 777 (Iowa

2011) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 247–48 (1973)). Under

that standard, “[v]oluntariness is a question of fact to be determined by all the

circumstances.”    Id.   The court has “yet to consider whether a knowing and

intelligent waiver of the right to be free from warrantless searches and seizures set

forth in article I, section 8 is required to establish the effectiveness of consent under

the Iowa Constitution.” Pettijohn, 899 N.W.2d at 32 (citations omitted). In the

absence of guidance on that question, we decline Barden’s invitation to adopt the

more stringent test.

       In evaluating the voluntariness of Barden’s consent under the federal

standard, we may consider the following non-exclusive factors:

       personal characteristics of the defendant, such as age, education,
       intelligence, sobriety, and experience with the law; and features of
       the context in which the consent was given, such as the length of
       detention or questioning, the substance of any discussion between
       the defendant and police preceding the consent, whether the
       defendant was free to leave or was subject to restraint, and whether
       the defendant’s contemporaneous reaction to the search was
       consistent with consent.
                                         4

Pettijohn, 899 N.W.2d at 32 (citing United States v. Jones, 254 F.3d 692, 696 (8th

Cir. 2001). Our review of the record is de novo. See State v. Smith, 919 N.W.2d

1, 4 (Iowa 2018).

       According to the officer, Barden was a known drug user. He testified that,

when she came out of the home, she “seemed very agitated,” was “[t]alking very

fast,” and had “trouble standing still while she was talking.” The officer’s body

camera corroborates this characterization. Although Barden told the officer she

had not used methamphetamine that day and her last usage was two months

earlier, the officer noted she was “going a mile a minute.”

       After Barden re-entered the home, the officer confirmed with the mother that

Barden had her own bedroom. He discussed Barden’s drug usage and the likely

presence of drugs in her bedroom. As noted, he obtained the mother’s consent to

enter the home. However, he told the mother he would be unable to search

Barden’s bedroom if Barden declined consent.

       Once inside, and after an extended conversation with Barden about her

drug use, the officer asked Barden if he could come into her room. She said he

could not without a warrant. The following exchange was captured on the body

camera:

              OFFICER: So I can come take a look then?
              BARDEN: No, I don’t want you in my room without a frickin’
       thing. How about that?
              OFFICER: Without a frickin’ what?
              BARDEN: Without a warrant. You got a warrant, come
       search. Do you got a warrant to come search my room?
              OFFICER: Do you want me to go get one?
              BARDEN: Yes, please.
              OFFICER: You want me to displace your kids for several
       hours, go write a search warrant?
                                         5


              BARDEN: You know what? That’s fine, because there’s
       nothing in here.
              OFFICER: So if there’s nothing in there, you don’t mind if I
       come take a quick look then, right?
              BARDEN: No, there’s nothing in here. You want to search my
       purse, too? Here, search my purse. Here go on.
              OFFICER: So I can come in and search your purse?
              BARDEN: Search my purse. Everything. Here you go.
       Everything.

Barden handed the officer her purse and walked into the hallway. The officer took

the purse into the kitchen and searched it, discovering the methamphetamine.

       Barden essentially concedes she consented to the search of her purse. She

argues the consent was involuntary given the officer’s “threat to displace her

children for some time.” In her view, the statement was “disingenuous” because

“[h]e did not explain to her the real process he would need to undertake to search

her home” and “his statement would more readily be interpreted to mean that the

children would be removed from Barden’s care and turned over to authorities.”

       We are unpersuaded by Barden’s argument. The recorded statements of

Barden’s mother suggest the children were formally removed from Barden’s

custody and placed with her mother, notwithstanding Barden’s informal interaction

with them in the home. Accordingly, Barden had reason to know how the child-

removal process worked. More saliently, the officer did not intimate, let alone

assert, that the children would be taken away if she failed to cooperate with the

search. He simply stated the children would be displaced “for several hours” while

he went to “write a search warrant,” a separation that would, at most, be transitory.

See State v. Holland, 389 N.W.2d 375, 377, 381 (Iowa 1986) (concluding officers’

assertions “that the Department of Human Services would be called to take charge
                                          6


of the children left in the apartment” on defendant’s arrest “were not improper or in

any way inaccurate”).

       Nor are we persuaded by Barden’s argument that she lacked time to

deliberate on the request for consent, rendering her request for consent “coercive.”

Barden had sufficient time to articulate her desire for a warrant to search her room.

Her knowledge of the right to refuse consent and insist on a warrant belies her

assertion that she was pressured into allowing a search of her purse.

       Barden’s knowledge of her right to refuse consent also dilutes her

contention that the officer should have advised her she could refuse consent. See

State v. Lowe, 812 N.W.2d 554, 573 (Iowa 2012) (noting defendant “clearly knew

she had the right to refuse consent to search because at all times she refused to

consent to a search of her entire mobile home”); see also State v. Prusha, 874

N.W.2d 627, 630 (Iowa 2016) (“Under Schneckloth, [412 U.S. at 224,] knowledge

of the right to refuse ‘is not a prerequisite to establishing . . . voluntary consent

. . . .’” (citation omitted)). Notably, Barden did not simply acquiesce in the search;

she entered her room, took her purse and handed it to the officer. See State v.

Leaton, 836 N.W.2d 673, 677 (Iowa Ct. App. 2013) (“Consent given to a search

must be unequivocal, specific, and freely and intelligently given.” (citation

omitted)). In other words, her “contemporaneous reaction to the search was

consistent with consent.” Pettijohn, 899 N.W.2d at 32.

       There is also scant indication Barden “was cornered in the back of her

residence” and had no freedom to walk away from the encounter.              She was

unrestrained throughout, and, while the hall to her bedroom was narrow, there is

no indication the officer impeded her movement. Cf. Pals, 805 N.W.2d at 782
                                          7


(stating a “pat-down search . . . projected authority over [the defendant] and [was]

a factor to be considered in determining the voluntariness of the search” and the

defendant “was detained in [a] police vehicle at the time of the consent to search”).

       Finally, Barden suggests the officer coerced her into consenting to the

search by “stating he could get a search warrant, knowing there was no reasonable

articulable suspicion to establish probable cause.” In fact, the officer referred to

“writ[ing] a search warrant,” which we construe to mean preparation of a search

warrant application. The officer did not state he could obtain a warrant. His earlier

statement to Barden’s mother that he would not search Barden’s bedroom without

her consent bolsters our belief that the officer’s statement about writing a warrant

was an articulation of the next step rather than a misrepresentation of his ability to

obtain a search warrant. See Lowe, 812 N.W.2d at 574 (noting “[t]he police never

claimed they could search without [the woman’s] consent”).

       On our de novo review of the record, we agree with the district court that

Barden’s consent to the search of her purse was voluntary.              See State v.

Ahmetovic, No. 17-0913, 2018 WL 3655086, at *4 (Iowa Ct. App. Aug. 1, 2018)

(“[I]t is clear that the police did not assert any claim of authority to search, engage

in a show of force or other types of coercive action, threaten or attempt to deceive,

or engage in other illegal police action prior to the giving of consent.”). We affirm

Barden’s     judgment,     conviction,    and    sentence      for   possession      of

methamphetamine, first offense.

       AFFIRMED.
