                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0588
                                 Filed May 6, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHARLES DAVID BROWN,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       A defendant appeals from his conviction for possession of marijuana with

the intent to distribute. AFFIRMED.



       Michael J. Piper of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant

County Attorney, for appellee.



       Considered by Tabor, P.J., McDonald, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

          Charles David Brown appeals from his conviction for possession of

marijuana with the intent to distribute.

     I.     Background and Proceedings

          On August 4, 2011, a Waterloo police officer, Michael Girsch, was in his

patrol car on the east side of Waterloo when he heard loud music emanating

from a vehicle close to his location. The officer determined the music could be

heard one hundred feet away from the vehicle. Aware that there was a city

ordinance in Waterloo that prohibited music that could be heard more than

twenty-five feet from the vehicle of origin, he initiated a traffic stop. Officer Girsch

activated the emergency lights in his patrol car, which automatically activated an

in-car camera. The camera is programmed to record what it viewed beginning

twenty seconds before its activation.

          The subject vehicle came to a stop, and Officer Girsch observed it was

occupied by four individuals. Officer Girsch advised the vehicle’s driver why he

had made the stop and asked the occupants for identification. At Officer Girsch’s

request, a second officer, Sean Monroe, and an officer trainee came to the

scene.

          While Officer Girsch was obtaining identification, Officer Monroe observed

what appeared to be a bag lying on the street quite close to the passenger’s side

of the vehicle. Upon examination, he determined that it appeared to contain

marijuana. The bag was in a location where it would have been run over by the

apprehended vehicle if it had been there prior to the stop. The bag was clean in

its appearance and did not indicate it had been run over or otherwise damaged.
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The bag was later examined and found to contain nine smaller individual

baggies, each containing an approximately equal amount of marijuana. When

the officers viewed the videotape it revealed that soon after the stop, the

occupant of the passenger side of the front seat, identified as Brown, had

slumped down, opened the right front door, and closed it quickly. No one had

approached the vehicle after the stop except the officers.

      The occupants were ordered out of the vehicle and were searched, but no

other marijuana or paraphernalia was found. The officers believed Brown had

opened the front right door of the vehicle and dropped the bag onto the

pavement. Brown was accordingly arrested. Later, a trial information was filed

charging Brown with possession with the intent to deliver.

      Brown filed a motion to suppress any evidence obtained as a result of the

stop contending that the distance the music traveled was unknown and only a

product of the officer’s subjective determination. Brown’s sister, the registered

owner of the vehicle, testified at the suppression hearing that the sound system

in the vehicle could not have been heard twenty-five feet away. She further

testified that Brown had taken possession of the vehicle, was making the

payments, and that she had not driven the vehicle for three months.

      The motion to suppress was denied with the trial court stating, “[I]t is

reasonable to infer that since he took possession of the vehicle in May,

defendant upgraded the sound system to improve its performance as witnessed

by the police officer.” The matter went to trial, the jury convicted Brown, and he

was sentenced accordingly.
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     II.   The Search-and-Seizure Issue

       A. Error Preservation

       When a pretrial motion to suppress is denied by the trial court, no further

objection is necessary to preserve error. State v. Richards, 229 N.W.2d 229, 232

(Iowa 1975).

       B. Scope of Review

       The claim of an alleged illegal search and seizure raises constitutional

issues and is reviewed de novo. See State v. Baldon, 829 N.W.2d 785, 789

(Iowa 2013). However, deference is given to the factual findings of the trial court.

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).

       C. Discussion

       Brown first contends the court erred in denying his motion to suppress.

He correctly contends that a warrant or probable cause to search a particular

location or person does not necessarily give rise to the right to search everyone

found at that location or companions of the person to be searched. Ybarra v.

Illinois, 444 U.S. 85, 91 (1979); State v. Thomas, 540 N.W.2d 658, 665-66 (Iowa

1995). Brown fails however to relate how the concept set out above has any

application to his factual situation.

       Brown’s motion to suppress was directed to the legality of the stop. A

police stop of a vehicle and temporary detention of the person occupying it is a

seizure. State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996). However, probable

cause to believe the commission of even a minor traffic violation justifies stopping

a vehicle. State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996). When the

offense is ongoing a minor offense that cannot necessarily be considered a traffic
                                          5

offense will justify a stop. Pals, 805 N.W.2d at 775. Giving the appropriate

deference to the trial court’s findings of fact in the ruling on the motion to

suppress, noise emitted from the car radio travelled more than twenty-five feet

creating an ongoing violation justifying the officer’s stop.

       Brown’s brief filed in this court seems to contend that the search of

Brown’s person was an illegal search. There are several factors which make his

contention inapplicable to the present situation: (1) the marijuana was discovered

independent and before a body search of Brown, and the body search or the

legality of it is immaterial to the evidence on which the prosecution’s case was

based; (2) the motion to suppress addressed only the stop itself and error has

not been preserved as to the legality of the body search; and (3) the body search

was conducted after the marijuana was observed in plain view. The observation

of the bag of marijuana in plain view created probable cause to conduct a body

search. See State v. Horton, 625 N.W.2d 362, 367 (Iowa 2001).

       The motion to suppress was appropriately denied.

     III. The Sufficiency-of-the-Evidence Issue

       A. Error Preservation

       Brown made a motion for judgment of acquittal, which was overruled.

When an issue is raised before the trial court and it is ruled on, error has been

preserved. LaMasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).

       B. Standard of Review

       Sufficiency of the evidence claims are reviewed for errors of law. State v.

Keeton, 710 N.W.2d 531, 532 (Iowa 2006). A verdict is to be upheld if supported

by substantial evidence. Id. If a rational fact finder could find that the defendant
                                        6

is guilty beyond a reasonable doubt, substantial evidence exists. Id. All of the

record must be considered but it is to be considered in the light most favorable to

the State. Id.

       C. Discussion

       Brown further contends there was insufficient evidence to sustain his

conviction—specifically the evidence of possession—and the court erred in

denying his motion for judgment of acquittal. We disagree. The location of the

marijuana was such that it could have reasonably been dropped by the occupant

seated in the front passenger side of the vehicle. The video revealed that the

front passenger side door had been opened slightly and shut quickly,

accompanied by a movement made by Brown. Possession does not require

actual possession but requires that the contraband was in the possession of the

accused at some point in time. State v. Thomas, 847 N.W.2d 438, 442 (Iowa

2014). The appearance of the bag containing marijuana indicated that it had

been placed on the ground after the vehicle had arrived. Only the occupants of

the vehicle and the law enforcement officers had access to the site between the

time that the vehicle was stopped and the bag of marijuana was discovered.

       Furthermore, Officer Girsch testified that he had worked as an undercover

agent in the drug community as a member of the drug task force and that the

packaging of the marijuana found was consistent for sale and distribution and not

for personal use. In reviewing an insufficiency-of-the-evidence claim we are to

employ all the legitimate inferences and presumptions favorable to the State that

can be fairly deduced from the record. State v. Williams, 695 N.W.2d 23, 27
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(Iowa 2005).    Based on the evidence set out above, substantial evidence

supporting the verdict exists.

       AFFIRMED.
