                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1614
                            Filed November 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROY A. HALVERSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David P.

Odekirk, Judge.



      A defendant appeals his convictions for possession of methamphetamine

with intent to deliver and possession of clonazepam with intent to deliver.

AFFIRMED.



      Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       Roy     Halverson    appeals    his    convictions   for    possession     of

methamphetamine with intent to deliver, in violation of Iowa Code section

124.401(1)(c) (2015), and possession of clonazepam with intent to deliver, in

violation of Iowa Code section 124.401(1)(d). On appeal, he argues the district

court erred in denying his motion to suppress evidence purportedly obtained in

violation of his constitutional protections against unreasonable search and

seizure.     He also argues there is insufficient evidence to support his

methamphetamine conviction.

                                         I.

       One night, the Cedar Falls Police Department received a report a man,

later identified as Halverson, tried to pull a teenaged girl into a secluded area of

an apartment complex. It was also reported the man tried to sell drugs in the

apartment complex.

       The police responded to the report and, upon arriving at the complex,

located a group of people outside the complex, including the teenaged girl. The

girl stated Halverson approached her after she stepped out of her apartment to

make a phone call. He grabbed the teen’s wrist and pulled her toward a more

secluded area of the apartment complex but let go of her after a few steps. At

some point in this encounter, Halverson told the girl he was “packing heat” and

they should go into the main portion of the apartment complex. The teen was

scared.    Once inside the main portion of the apartment complex, the girl

witnessed Halverson offer to sell drugs to her brother and his friends, who

happened to be in the main portion of the complex. Halverson unscrewed the
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back of a flashlight and pulled out several clear baggies, some containing pills

and others containing a white substance. Halverson told the girl’s brother “one

was better than the other.”

       After listening to the teen’s recollection of events, the responding officer

asked the group for a description of Halverson.            Around the same time,

Halverson exited the apartment complex, and the group pointed him out to the

officer. The officer approached Halverson and patted him down. The officer

found no weapons, but she did find three cell phones, several condoms, a

keychain with a pill vial attached, and a mini flashlight. The officer opened the pill

vial and discovered several pills. She placed these items on the front of her

cruiser and arrested Halverson. Once at the police station, the flashlight was

opened and the drugs inside were identified as methamphetamine and

clonazepam. The methamphetamine was packaged into multiple baggies.

       Halverson was charged with three counts: count I, possession of

methamphetamine with intent to deliver; count II, attempting to entice a minor;

and count III, possession of clonazepam with intent to deliver. Halverson moved

to suppress the drugs found in the pill vial and in the flashlight, arguing the

search of his person and seizure of these items violated his rights under the

Fourth Amendment of the United States Constitution and article I, section 8 of the

Iowa Constitution. The district court denied Halverson’s motion. Following a trial

on the minutes of testimony, the district court convicted Halverson on counts I

and III.
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                                         II.

       We first address Halverson’s search-and-seizure claim.           The Fourth

Amendment to the United States Constitution and article I, section 8 of the Iowa

Constitution protect the right to be free from unreasonable searches and

seizures. The touchstone of any search-and-seizure claim is reasonableness

under the circumstances presented. See Pennsylvania v. Mimms, 434 U.S. 106,

108–09 (1977) (“The touchstone of our analysis under the Fourth Amendment is

always ‘the reasonableness in all circumstances of the particular governmental

invasion of a citizen’s personal security.’” (citation omitted)); State v. Kreps, 650

N.W.2d 636, 641 (Iowa 2002) (“The Fourth Amendment imposes a general

reasonableness standard upon all searches and seizures.”).

       A search incident to arrest is reasonable within the meaning of the Fourth

Amendment and article I, section 8 of the Iowa Constitution.          See State v.

Peterson, 515 N.W.2d 23, 25 (Iowa 1994) (“[W]e hold that in the case of a lawful

custodial arrest a full search of the person is not only an exception to the warrant

requirement of the Fourth Amendment, but is also a ‘reasonable’ search under

that Amendment.” (quoting United States v. Robinson, 414 U.S. 218, 235

(1973))). A search incident to arrest “allows a police officer ‘to search a lawfully

arrested individual’s person and the immediately surrounding area without a

warrant.’”   State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citation

omitted).    The scope of the search is limited to “circumstances in which the

security of an arresting officer is implicated . . . or when the arrested person is

within reach of contraband and thus able to attempt to destroy or conceal it.”

State v. Gaskins, 866 N.W.2d 1, 15 (Iowa 2015). “[A] search incident to an arrest
                                        5

need not be made after a formal arrest if it is substantially contemporaneous with

it, provided probable cause for the arrest existed at the time of the search.”

Peterson, 515 N.W.2d at 25. So long as probable cause for an arrest existed at

the time of the search, evidence seized remains admissible pursuant to the

search-incident-to-arrest doctrine. See State v. Harvey, 242 N.W.2d 330, 339

(Iowa 1976).

      The district court denied Halverson’s motion to suppress on the ground

the search was conducted incident to Halverson’s arrest. Halverson contends

this was error because the arresting officer lacked probable cause to arrest him.

We disagree. “Probable cause is present ‘if the totality of the circumstances as

viewed by a reasonable and prudent person would lead that person to believe

that a crime has been or is being committed and that the arrestee committed or is

committing it.’” State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005) (citation

omitted). The officer testified she was going to arrest Halverson for at least

simple assault, presumably based on the teen’s claims that Halverson grabbed

her, pulled her toward a dark portion of the apartment complex, and intimated he

had a gun. That is sufficient to establish probable cause supporting an arrest for

assault. See Iowa Code § 708.1 (defining assault); State v. Horton, 625 N.W.2d

362, 365 (Iowa 2001) (noting probable cause does not require evidence firm

enough to lead to indictment or conviction and determining probable cause is

based on practical considerations).

      Halverson contends the search-incident-to-arrest doctrine is inapplicable

here because he could not have been arrested without a warrant for the offense

of simple assault.    Specifically, Iowa Code section 804.7(3) authorizes a
                                          6


warrantless arrest only for an indictable offense, and simple assault is not an

indictable offense. This claim is not preserved for appellate review. Halverson

did not present this issue to the district court or obtain a ruling on this issue. See

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (setting forth error

preservation rules); State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995). Even if

error had been preserved, Halverson would not be entitled to relief. The arrest

was authorized pursuant to Iowa Code section 804.7(2). In addition, an arrest

under section 804.7(3) “is lawful if the facts available to the officer at the time of

arrest provide reasonable ground for believing an indictable offense has occurred

and the arrestee committed it—even if the officer announces a lesser offense as

the reason for the arrest.” Veatch v. City of Waverly, 858 N.W.2d 1, 9 (Iowa

2015). The officer testified she intended to arrest Halverson for at least simple

assault, there were reasonable grounds to believe an indictable offense occurred

based on the teen’s account that Halverson threatened her with a gun, although

he ultimately was not in possession of a gun, and as evidenced by Halverson’s

eventual charge for attempting to entice a minor. Halverson’s argument is thus

unavailing.

       Halverson asks this court to interpret the Iowa Constitution more strictly

than the Federal Constitution. He argues the search-incident-to-arrest doctrine

should not be applicable unless the defendant is actually arrested prior to the

search. As a general matter, we note litigants frequently make the request to

interpret article I, section 8 “more strictly” or “more broadly” than the Fourth

Amendment. It is true that “[d]epending upon the particular issue, our precedents

interpreting article I, section 8 may provide greater or lesser protection than
                                        7

cases interpreting the Fourth Amendment.” State v. Bohl, No. 15-1546, 2016 WL

4543957, at *1 (Iowa Ct. App. Aug. 31, 2016). However,

      [t]he right question, is not whether a state’s guarantee is the same
      as or broader than its federal counterpart as interpreted by the
      Supreme Court. The right question is what the state’s guarantee
      means and how it applies to the case at hand. The answer may
      turn out the same as it would under federal law. The state’s law
      may prove to be more protective than federal law. The state law
      also may be less protective. In that case the court must go on to
      decide the claim under federal law, assuming it has been raised.

Id. at *2 (quoting Hulit v. State, 982 S.W.2d 431, 437 n.11 (Tex. Crim. App.

1998)).

      Turning to the specific question presented, we question whether this issue

was preserved for appellate review. Regardless, on the merits, we decline the

invitation to deviate from established federal law. “We usually interpret the scope

and purpose of the Iowa Constitution’s search and seizure provisions to track

with federal interpretations of the Fourth Amendment.” Christopher, 757 N.W.2d

at 249. Halverson has not presented any compelling rationale to deviate from

established law in the area, and we see none. The touchstone of any Fourth

Amendment inquiry is reasonableness under the circumstances presented. See

Mimms, 434 U.S. at 108–09; Kreps, 650 N.W.2d at 641.              It is imminently

reasonable, within the meaning of the federal and state constitutions, for an

officer who intends to arrest an individual based on probable cause to search the

individual immediately prior to,      substantially contemporaneous with, or

immediately after an arrest. See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)

(“Where [a] formal arrest followed quickly on the heels of the challenged search

of petitioner's person, we do not believe it particularly important that the search
                                          8

preceded the arrest rather than vice versa.”); Peterson, 515 N.W.2d at 25.

Neither the connotation nor the denotation of the word “incident” demands the

conclusion that a search “incident” to arrest can be conducted only immediately

after formal arrest. Instead, the search only need be “connected with” the formal

arrest. See Incident, Black’s Law Dictionary (7th ed. 1999) (“Dependent upon,

subordinate to, arising out of, or otherwise connected with something else.”).

Finally, if Halverson seeks to break with established law, his efforts are better

directed to the supreme court for constitutional relief or the legislature for

statutory relief. See Spencer v. Philipp, No. 13-1887, 2014 WL 4230223, at *2

(Iowa Ct. App. Aug. 27, 2014) (“As a general rule, the task of materially altering

substantive or procedural rights is best left to the General Assembly or the

Supreme Court of Iowa.”).

       For the foregoing reasons, we affirm the district court’s denial of

Halverson’s motion to suppress evidence. Because we conclude the search at

issue was lawfully conducted incident to Halverson’s arrest, we need not address

his claims regarding the application of the doctrine of inevitable discovery.

                                         III.

       We next address the challenge to the sufficiency of the evidence

supporting the conviction for possession of methamphetamine with intent to

deliver. The State was required to prove beyond a reasonable doubt: 1) That on

or about April 30, 2015, Halverson in Black Hawk County, Iowa knowingly

possessed methamphetamine; 2) Halverson knew that the substance he

possessed was methamphetamine; and 3) Halverson possessed the substance

with the intent to deliver a controlled substance. See Iowa Code § 124.401.
                                          9


Halverson only challenges the sufficiency of the evidence supporting the third

element.

       “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A verdict is upheld

when it is supported by substantial evidence. See State v. Webb, 648 N.W.2d

72, 75 (Iowa 2002). Evidence is substantial when the quantum and quality of

evidence is sufficient to “convince a rational fact finder that the defendant is guilty

beyond a reasonable doubt.” Id. at 76. In conducting our review, “we view the

evidence in the light most favorable to the State, including legitimate inferences

and presumptions which may fairly and reasonably be deduced from the

evidence in the record.” State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006).

       When the evidence is viewed in the light most favorable to the State, there

is sufficient evidence Halverson intended to deliver the methamphetamine. Here,

the teenager saw Halverson pull out a baggie of pills and another baggie with a

white substance from the flashlight and try to sell them to her brother and his

friends. She also heard Halverson state one was better than the other, indicating

Halverson had two different products, one of which was methamphetamine, for

sale. The methamphetamine was packaged into individual units, which supports

an inference the methamphetamine was packaged for resale.               See State v.

Grant, 722 N.W.2d 645, 648 (Iowa 2006). While Halverson is correct that there

was no evidence he was carrying enough cash to infer he was in the business of

selling methamphetamine, the fact is not dispositive. The issue is whether the

evidence, when viewed in the light most favorable to the State, establishes guilt

beyond a reasonable doubt. Here it does.
                                      10


                                      IV.

      For these reasons, we hold the district court did not err in denying the

motion to suppress evidence and sufficient evidence supports the conviction for

the possession of methamphetamine with intent to deliver.     The defendant’s

convictions are affirmed.

      AFFIRMED.
