                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0219
                             Filed January 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN BRIAN KISSEE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.



      Jonathan Kissee appeals from his conviction, judgment, and sentence for

possession of a controlled substance. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

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

General, Katherine Walling, Student Legal Intern, Patrick Jennings, County

Attorney, and Athena D. Ladeas, Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

       Jonathan Kissee appeals from his conviction, judgment, and sentence for

possession of a controlled substance.

       I. Factual and Procedural Background

       On June 3, 2013, two police officers, one in a police car and one on foot,

observed Jonathan Kissee driving with multiple cracks across the length and

height of his main windshield. The driving officer pulled Kissee over on the belief

that the cracks might have been impairing the driver’s vision. The officer who

was on foot joined to assist the stop.

       During the stop, the officers discovered that Kissee owned the car but did

not possess a valid driver’s license or insurance. The officers arrested Kissee for

these violations. There was a passenger in the car with Kissee; the officers

questioned the passenger and let him go.        When the officers performed an

inventory search of the car, they found marijuana in its center console. Kissee

invoked his right to silence once the officers Mirandized him and questioned him

about the marijuana.

       Kissee was charged by trial information with possession of marijuana in

violation of Iowa Code section 124.401(5) (2013).1       He moved to suppress

evidence collected as a result of the stop, arguing the stop violated his

constitutional protections against unreasonable seizures.        His motion was

denied. Following a bench trial on the minutes of testimony, the district court

found Kissee guilty of possession and sentenced him.


1
  “It is unlawful for any person knowingly or intentionally to possess a controlled
substance . . . .” Iowa Code § 124.401(5).
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       Kissee now appeals the conviction, arguing that the district court erred in

failing to suppress the evidence or alternatively that the evidence was insufficient

as a matter of law to support the conviction.

       II. Standard and Scope of Review

       Kissee’s claim that all evidence arising from the traffic stop must be

suppressed is a constitutional claim, and we therefore review de novo.          See

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

the totality of the circumstances as shown by the record as a whole. See id. We

are not bound by the district court’s findings of fact, but we give deference to

them. See id.

       We review Kissee’s claim there is insufficient evidence to support his

conviction for errors at law. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa

2014) (citing State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). We consider

all the evidence, including all reasonable inferences derived from it, in the light

most favorable to the State. See id. We affirm if substantial evidence—i.e.,

evidence that can convince a rational factfinder of guilt beyond a reasonable

doubt—supports the conviction. See id.

       III. Discussion

       Kissee asserts all evidence derived from the stop should have been

suppressed because the stop impermissibly violated his constitutional protection

against unreasonable searches and seizures. See U.S. Const. amend. IV; Iowa

Const. art. I, § 8. However, it is well established that “[a] police officer can stop

and briefly detain a person for investigative purposes if the officer has a

reasonable suspicion supported by articulable facts that criminal activity may be
                                             4

afoot.” State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013). An officer has a

reasonable suspicion to support a stop if he observes a traffic offense, no matter

how minor that offense may be. See State v. Harrison, 846 N.W.2d 362, 365

(Iowa 2014). It is a criminal traffic offense to “drive a motor vehicle equipped with

a windshield . . . which do[es] not permit clear vision.” Iowa Code § 321.438(1).

       The officers observed heavy cracking across the windshield both vertically

and horizontally, which constitutes an articulable fact supporting their reasonable

suspicion that a violation of section 321.438(1) may have been in progress. They

were therefore permitted to initiate a stop to investigate whether such a violation

actually was occurring.2        The district court properly declined to suppress

evidence arising from the traffic stop.

       Kissee’s alternative assertion is that there was insufficient evidence to

support his conviction.          The evidence must demonstrate that Kissee

“(1) exercised dominion and control over the contraband, (2) had knowledge of

its presence, and (3) had knowledge that the material was a controlled

substance.” State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004).

       Possession may be actual or constructive. State v. Vance, 790 N.W.2d

775, 784 (Iowa 2010). To prove actual possession, the State must demonstrate

that the substance was either found on the person or that “at one time [the

defendant] had actual possession.” Id. In this case, the State does not claim the

evidence demonstrates actual possession.            Instead, it asserts Kissee was in

2
  It is not relevant whether the cracks in the windshield actually did obstruct the driver’s
vision—it is only relevant whether the officers’ suspicion the cracks may have done so
was reasonable so as to support their stop. Kissee’s in-depth analysis and interpretation
of section 321.438(1) do not bear upon our finding the suspicion of criminal conduct was
reasonable.
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constructive possession of the marijuana, meaning he “ha[d] knowledge of the

presence of the controlled substance and ha[d] the authority or right to maintain

control over it.” Kemp, 688 N.W.2d at 789. In a case involving constructive

possession and a motor vehicle, there are many factors to consider, including

whether the defendant made incriminating statements, whether he acted in an

incriminating manner, whether he owned the car, and any other circumstances

linking the defendant to the drugs. See id.

      Kissee’s contention that the evidence equally supports that the substance

belonged to his passenger is not persuasive. As the owner and driver of the

vehicle, Kissee exercised domain and control over the center console located

next to the driver’s seat. The parties are correct to point out we will not presume

that ownership of the car necessitates knowing possession of its contents.

However, ownership or possession of a car is an evidentiary factor that weighs

against a defendant’s claim he exercises no control or domain over substances

found inside of it. See, e.g., State v. Dewitt, 811 N.W.2d 460, 475–76 (Iowa

2012) (finding defendant’s status as a frequent and the most recent driver of the

car was a factor weighing against his claim, even without ownership and even

though multiple drivers had access to the vehicle); Kemp, 688 N.W.2d at 789

(finding ownership of the vehicle weighed in favor of a finding that the owner had

control and dominion over the substance found inside).

      Kissee’s suggestion on appeal that his passenger may have placed the

marijuana in his car console without his knowledge is not supported by any fact

or circumstance presented to the district court. The minutes of testimony—the

only evidence presented at trial—demonstrate the passenger complied with the
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officers, consented to a search, and did not say or do anything to incriminate

himself.

       Kissee, on the other hand, was less cooperative with the officers. When

the officers explained the situation regarding his license, he argued he had taken

care of the problem by making a payment and signing “some documents.” He

protested his arrest by claiming he was being harassed by the officers, one of

whom had stopped him several months before.

       The contrast between Kissee’s behavior and that of his passenger is

another evidentiary factor from which a reasonable factfinder might infer that

Kissee’s less-cooperative behavior and statements stemmed from his knowledge

of the presence of the marijuana in the center console of the car he owned and

was driving.    See, e.g., State v. Carter, 696 N.W.2d 31, 40–41 (Iowa 2005)

(comparing the defendant-driver’s incriminating behavior with that of the

compliant passenger and finding the resulting inference outweighed the

defendant’s claim that the substance could equally have belonged to the

passenger).

       There is sufficient evidence for a reasonable factfinder to infer from the

minutes Kissee owned or exercised control over the substance, knew of the

substance’s presence in his car, and knew that the substance was marijuana.

       Because the officers’ traffic stop was supported by a reasonable suspicion

of a criminal traffic violation and the evidence is sufficient to support the district

court’s findings of fact, we affirm.

       AFFIRMED.
