               IN THE SUPREME COURT OF IOWA
                              No. 07–0691

                         Filed January 30, 2009


STATE OF IOWA,

      Appellee,

vs.

BRANDON MONTRESE BROOKS,

      Appellant.


      Appeal from the Iowa District Court for Scott County, Nancy S.

Tabor (suppression ruling) and J. Hobart Darbyshire (trial and

sentencing), Judges.



      Defendant appeals criminal conviction alleging that evidence

obtained after a warrantless entry of a motel room should have been

suppressed. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Jason B. Shaw,

Assistant State Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Michael J. Walton, County Attorney, Kelly G.

Cunningham and Robert E. Weinberg, Assistant County Attorneys, for

appellee.
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APPEL, Justice.

      Brandon Brooks appeals his convictions for drug-related offenses.

He argues that the district court improperly failed to suppress evidence

obtained after law enforcement officers conducted a warrantless entry

into a motel room. For the reasons expressed below, we affirm the ruling

of the district court.

      I. Factual and Procedural Background.

      On March 18, 2006, the manager of the Motel 6 in Davenport, Iowa

contacted Scott County Sheriff’s Deputy Gina Lieferman. The manager

requested that Lieferman investigate a complaint from a motel guest that

another guest was selling drugs.        According to the manager, the

complaint was that an African-American male had approached the guest

and asked him if he wanted to “buy some stuff.”

      Lieferman arrived at the Motel 6, which is L-shaped with room

doors on the outside facing the parking lot.       After speaking to the

manager, Lieferman learned that the room in question, number 136, was

rented to a female by the name of Easter Kelly and had been paid for in

cash on a day-to-day basis.

      Deputy Lieferman called Special Agent Curtis Carter to assist her

at the scene. They set up surveillance in room 134, two doors from room

136. Eventually, a van and car pulled into the parking lot. An African-

American male got out of the van and entered room 136. A female got

out of the car, entered room 136 briefly, and then left. After the female’s

departure, Deputy Lieferman observed individuals enter room 136 and

leave shortly thereafter.

      At this point, Deputy Lieferman, who was dressed in civilian

clothes, decided to conduct a “knock and talk.” She asked Agent Carter

to stand at the door of room 134 to observe. When Lieferman knocked
                                    3

on the door to room 136, a male voice asked, “Who is it?”         Lieferman

responded, “Me.”

      About thirty seconds later, Brooks, an African-American male,

opened the door, which swung inside the motel room, and put his head

and shoulders outside the door. When Brooks opened the door, Deputy

Lieferman immediately detected the odor of raw cannabis.          She could

also smell a fragrance that she described as a “masking” smell.

      At this point, Deputy Lieferman told Brooks, “I heard you have the

hook up,” phraseology that Lieferman testified was commonly used by

drug dealers.    After Brooks twice denied knowing what she meant,

Lieferman showed him her badge and identified herself as a law

enforcement officer. Lieferman then asked whether Brooks would talk

with her and he responded negatively. When Lieferman stated that she

knew Brooks had marijuana in the room, the defendant replied, “No you

don’t, I’m not burning it.”

      After this remark, Deputy Lieferman decided to arrest the

defendant, put her foot in the door, and grabbed for Brooks’ wrist, which

was on the outside door knob. Brooks pulled back and attempted to get

inside the room. Deputy Lieferman then pushed open the door and took

two steps inside as she continued to struggle with Brooks. When she

entered the room, she observed a large quantity of marijuana, two digital

scales, and plastic baggies.   Deputy Lieferman placed Brooks under

arrest and called an on-duty sheriff’s deputy to transport Brooks to the

county jail.

      Lieferman next called the county attorney and discussed the

situation. She obtained permission to seek a search warrant. Lieferman

then exited the room and waited in her vehicle in the parking lot,
                                      4

observing the area until she was informed that the search warrant had

been obtained.

      Thereafter, Lieferman entered the room again and conducted a full

search. As a result of the search, the police seized a green box cutter,

multiple grams of cannabis, two digital scales, packaging materials, two

cell phones, and mail addressed to Easter Kelly.

      Prior to trial, Brooks filed several motions in limine to suppress

evidence. Brooks claimed that the initial search was conducted without

probable cause and without consent. The State resisted, claiming that

the initial entry into the motel room and Brooks’ arrest were based on

exigent circumstances.

      At the hearing on the motion to suppress, the State presented

testimony from Lieferman regarding the facts and circumstances leading

to Brooks’ arrest, her observation of marijuana in the course of making

the arrest, and the subsequent search of the motel room after a warrant

had been secured. With regard to the motel room, Lieferman testified

that room 136 was not rented in Brooks’ name and that paying for motel

rooms on a day-to-day basis in cash was a common practice of

individuals engaged in the sale of controlled substances.     The deputy

further testified to the course of her surveillance and her belief that

controlled substances were being sold from the room. The defendant did

not put on evidence at the hearing.

      After the close of evidence, the State argued that after Lieferman

smelled raw cannabis and the defendant told her that she could not

smell the cannabis because he was not burning it, probable cause

existed to search the room given the exigent circumstances. The State

argued, in the alternative, that Lieferman certainly had probable cause to

make the arrest.
                                     5

      The defendant countered that there were no exigent circumstances

to support Lieferman’s warrantless entry into the motel room. According

to the defense, once Lieferman smelled the cannabis and obtained the

statement from the defendant, the officer should have simply left and

obtained a search warrant.

      The district court denied the motion to suppress.         The district

court declared that it was a “close call” as to whether exigent

circumstances existed to allow a warrantless search. The district court,

however, noted that there was no evidence regarding the defendant’s

reasonable expectation of privacy within the motel room. The room was

not rented in Brooks’ name, the defendant had not offered any evidence

as to his relationship with Easter Kelly, there was no evidence that he

was an overnight guest, and there was no evidence that he was more

than a mere “social” or “commercial” guest in someone else’s motel room.

According to the district court, the only evidence presented at the

hearing indicated that Brooks was in the room for a relatively short

period of time. As a result, the district court found that the defendant

did not have an expectation of privacy in the motel room and the motion

to suppress was denied.

      At trial, the State offered evidence found as a result of the

execution of the search warrant in its case in chief.       After the State

rested, Brooks took the stand in his own defense.            The defendant

testified that he lived at the Motel 6 at the time of his arrest. He asserted

that Kelly was his girlfriend and that the room was in her name because

he did not have identification. Brooks testified that prior to coming to

the Motel 6, he stayed at the Exel Inn, but moved to the Motel 6 because

it was cheaper. Before that he lived at his cousin’s house. He testified

that he left his cousin’s house because he and his girlfriend did not have
                                      6

privacy and went to the motel to do “adult type of things.”             Brooks

further testified that he had a business breeding pit bull puppies and

maintained a website associated with the business. Brooks stated that

while he was living at the Motel 6, he left his dogs in his cousin’s

basement.

      Brooks was convicted of possession with intent to deliver,

possession of marijuana, and failure to affix a drug-tax stamp. Brooks

appealed, asserting that the district court erred in not granting the

motion to suppress.

      II. Issue of Preservation.

      At the outset, Brooks contends that the State waived the issue of

whether he had a legitimate expectation of privacy in the motel room.

Citing Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68

L. Ed. 2d 38 (1981), Brooks maintains that the State had the initial

burden of showing that he lacked a privacy interest. By failing to raise

the issue at the suppression hearing, Brooks claims that the State

waived the matter.

      Brooks further claims that he has been prejudiced by the State’s

failure to raise the issue of his reasonable expectation of privacy. The

defendant asserts that if the State had raised the issue in a timely

fashion,   he   would     have   responded   by   offering   evidence   at   the

suppression hearing. Because the State did not raise the issue, Brooks

claims he did not need to make an evidentiary showing regarding his

expectation of privacy.

      The State disagrees. The State distinguishes Steagald, noting that

in that case the trial court did not enter a ruling on the privacy issue.

The State further contends that in Steagald, the government not only did

not raise the issue, but in fact took the position in the trial court that the
                                      7

premise being searched was the defendant’s residence.             The State

contends that under our cases where an issue has been tacitly

considered and ruled upon by the district court, error has been

preserved. See State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987).

      Our review of the record indicates that neither party explicitly

raised the privacy issue, either in the written filings or at the suppression

hearing.   Nonetheless, after hearing the evidence, the district court

squarely ruled on the issue, finding that Brooks failed to show an

expectation of privacy in the motel room.

      We agree with the State that Steagald is not controlling.           In

Steagald, the government acquiesced in the determination that the

premises searched was the defendant’s home and further argued that as

a result, the defendant was in constructive possession of cocaine found

in a suitcase in the closet of the residence. Steagald, 451 U.S. at 209,

101 S. Ct. at 1646, 68 L. Ed. 2d at 44. Having relied upon the assertion

that the residence was the defendant’s home to establish constructive

possession, the Supreme Court refused to allow the government to

reverse course and claim that the defendant lacked an expectation of

privacy in the home for the first time on appeal.           Id.   Here, the

government did not make any affirmative assertions in the district court

that are inconsistent with its position on appeal.       Nor did the State

acquiesce to a factual finding that the defendant had a reasonable

expectation of privacy in the motel room. We, therefore, conclude that

Steagald is not controlling in this case.

      We find the case of Combs v. United States, 408 U.S. 224, 92 S. Ct.

2284, 33 L. Ed. 2d 308 (1972), more pertinent. In Combs, the defendant

was charged with receiving, possessing, and concealing cases of tax-paid

whiskey known by him to be stolen from an interstate shipment. Id. at
                                     8

225, 92 S. Ct. at 2285, 33 L. Ed. 2d at 310. The whiskey was stored in a

shed on a farm owned by the defendant’s father. Id. at 226, 92 S. Ct. at

2285, 33 L. Ed. 2d at 310. A search warrant was issued, leading to the

discovery of the whiskey. Id. In the district court, the defendant moved

to suppress the evidence on the ground that there was no probable cause

to support the search warrant. Id. The district court denied relief on

this basis. Id. On appeal, however, the Court of Appeals for the Sixth

Circuit denied relief on the ground that the petition asserted no

possessory or proprietary interest in the searched premises.       United

States v. Combs, 446 F.2d 515, 516 (6th Cir. 1971).

       The United States Supreme Court reversed. Combs, 408 U.S. at

227–28, 92 S. Ct. at 2286, 33 L. Ed. 2d at 311. In a per curiam opinion,

the Supreme Court noted that the record before the district court was

“virtually barren of the facts” necessary to determine whether the

defendant had a reasonable expectation of privacy in the shed where the

whiskey was discovered. Id. at 227, 92 S. Ct. at 2286, 33 L. Ed. 2d at

311.    The Supreme Court reasoned that the defendant’s failure to

present evidence of his privacy interest “may well be explained by the

related failure of the Government to make any challenge in the District

Court to petitioner’s standing to raise his Fourth Amendment claim.” Id.

The Supreme Court thus remanded the case to the district court to allow

the defendant to offer such evidence and the district court to rule on the

issue. Id. at 228, 92 S. Ct. at 2286, 33 L. Ed. 2d at 311.

       We conclude that Combs is closer to the fact scenario presented in

this case than Steagald.    In this case, the government did not make

contradictory affirmative assertions in the district court as in Steagald,

but remained silent, as in Combs. See United States v. Hansen, 652 F.2d

1374, 1382 (10th Cir. 1981); 6 Wayne R. LaFave, Search and Seizure
                                     9

§ 11.7(e), at 466–68 (4th ed. 2004) (determining that Combs applies

where government simply remained silent or neglected to raise standing

in lower courts; Steagald approach applies where government made

affirmative assertion of facts below that would confer standing or did not

alert a reviewing court to the issue in a timely fashion).    As such, we

conclude that the State has not waived its ability to challenge Brooks’

reasonable expectation of privacy in the motel room.

         We further conclude that remand to the district court for

additional fact finding is unnecessary.   Following Combs, other courts

have remanded cases for further proceedings where the record below is

inadequate to determine whether the defendant in fact had a reasonable

expectation of privacy in the searched premises. Moody v. People, 159

P.3d 611, 616–17 (Colo. 2007); State v. Ramires, 152 S.W.3d 385, 401–

02 (Mo. Ct. App. 2004).

         The record presented here, however, does not necessitate remand.

Under Iowa law, an appellate court reviewing the validity of a search may

consider not only evidence admitted at the suppression hearing, but also

evidence admitted at trial.    State v. Orozco, 573 N.W.2d 22, 24 (Iowa

1997). As a result, while Brooks may have been surprised by the district

court’s reliance on his failure to present evidence at the suppression

hearing showing his privacy interest in the motel room, the defendant

had an opportunity to cure such shortcomings in the record at trial.

Further, the record in this case demonstrates that Brooks, in fact, took

advantage of the opportunity to offer evidence at trial on the privacy

issue.     State v. Carter, 904 P.2d 290, 292–93 (Wash. 1995) (holding

where defendant testified fully at trial regarding privacy issues there was

no need for remand under Combs).
                                         10

       Finally, we note that on appeal, Brooks has not asked for a remand

to offer further evidence, but instead stands on the record developed in

the trial court. The State, moreover, does not challenge consideration of

the evidence offered at trial and affirmatively suggests that we may

consider it on appeal.       Remand is thus unnecessary and we give the

parties what they ask for, namely, a de novo review of the validity of the

search based upon the entire record developed in the district court.

       III. Standard of Review.

       Because the motion to suppress was based on a deprivation of the

defendant’s constitutional right against unlawful searches, this court’s

review is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002). In

conducting our de novo review, “we make an independent evaluation

[based on] the totality of the circumstances as shown by the entire

record.”    State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).               Each case

must be evaluated in light of its unique circumstances. State v. Legg,

633 N.W.2d 763, 767 (Iowa 2001).

       IV. Discussion.

       A.   Introduction.      The Fourth Amendment to the United States

Constitution provides “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated. . . .” U.S. Const. amend. IV.1 In deciding
the constitutionality of a search, we undertake a two-step approach.

First, the defendant must show that he or she has a legitimate

expectation of privacy in the area searched.            State v. Halliburton, 539

        1Although the defendant has made a parallel claim under Article I, section 8 of

the Iowa Constitution, the defendant has not asserted that the state constitutional
provision should be interpreted differently than the Fourth Amendment. As a result, for
prudential reasons, we assume for the purposes of this case that the Iowa Constitution
should be interpreted in the same fashion as its federal counterpart. State v. Wilkes,
756 N.W.2d 838, 842 n.1 (Iowa 2008).
                                    11

N.W.2d 339, 342 (Iowa 1995); see also United States v. Salvucci, 448 U.S.

83, 95, 100 S. Ct. 2547, 2554–55, 65 L. Ed. 2d 619, 630 (1980) (holding

that the exclusionary rule applies only to a defendant whose own Fourth

Amendment rights have been violated). “Second, if the defendant had a

legitimate expectation of privacy, we must then decide whether the State

unreasonably invaded the protected interest.” Halliburton, 539 N.W.2d

at 342. A warrantless search is unreasonable unless it comes within a

recognized exception such as consent, exigent circumstances, or plain

view. State v. Eubanks, 355 N.W.2d 57, 58–59 (Iowa 1984).

      B. Reasonable Expectation of Privacy. The Fourth Amendment

unquestionably establishes an expectation of privacy in the home.

Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 1379, 63

L. Ed. 2d 639, 650 (1980). The case law extends this protection to hotel

or motel rooms. Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889,

891, 11 L. Ed. 2d 856, 859 (1964); United States v. Rambo, 789 F.2d

1289, 1296 (8th Cir. 1986).     The case law further establishes that a

social guest in a home, and by logical extension in a motel room, has a

legitimate expectation of privacy in, at least some areas, of the home or

motel room of another. Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct.

469, 473, 142 L. Ed. 2d 373, 380 (1998); Minnesota v. Olson, 495 U.S.

91, 96, 110 S. Ct. 1684, 1688, 109 L. Ed. 2d 85, 93 (1990) (holding

overnight houseguest had reasonable expectation of privacy in hostess’

home). A mere visitor, however, who is not an overnight guest usually

lacks an expectation of privacy when present in the motel room of

another. United States v. Sturgis, 238 F.3d 956, 958 (8th Cir. 2001).

      The mere fact that a premise may be characterized as a residence

or a motel room does not, by itself, establish that a particular person has

a reasonable expectation of privacy in the premises. For example, the
                                    12

use of a hotel or motel room as a center for drug transactions and not as

a residence does not give rise to legitimate expectations of privacy within

the ambit of the Fourth Amendment.         A defendant does not have a

reasonable expectation of privacy when the motel or hotel room is

nothing more than “a convenient processing station” for the packaging

and distribution of drugs. Carter, 525 U.S. at 102, 119 S. Ct. at 479,

142 L. Ed. 2d at 388 (Kennedy, J., concurring); United States v. Gordon,

168 F.3d 1222, 1226–27 (10th Cir. 1999); State v. Ortiz, 618 N.W.2d 556,

561 (Iowa 2000).

      A defendant challenging a search and seizure occurring in the

motel room of a third person must demonstrate that he personally has

an expectation of privacy in the place searched, and that his expectation

is reasonable.     Olson, 495 U.S. at 95–96, 110 S. Ct. at 1687, 109

L. Ed. 2d at 92. A bald assertion that one has been staying in a hotel,

without further proof, is generally insufficient; as is the defendant’s mere

presence in the motel room at the time of the search. United States v.

Armenta, 69 F.3d 304, 308 (9th Cir. 1995); United States v. Carr, 939

F.2d 1442, 1445–46 (10th Cir. 1991).          In determining whether a

defendant has a reasonable expectation of privacy in a motel room, the

presence of the defendant’s belongings is a relevant factor. Gordon, 168

F.3d at 1227; United States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir.

1987).

      In this case we must decide, based upon the unique record

developed, whether Brooks was using the room at the Motel 6 as an

overnight guest, thereby giving rise to an expectation of privacy, or

whether he was using the room for the purpose of selling illegal drugs,

and thus had no expectation of privacy. At trial, Brooks testified that he

was staying overnight in the room as a guest of his girlfriend, in whose
                                     13

name the room was registered.          The room was registered in his

girlfriend’s   name    because     Brooks   purportedly     lacked    proper

identification.   He further testified that although he had been living

recently at his cousin’s home, he and his girlfriend decided to rent a

motel room in order to allow them to engage in “adult type of things.” He

testified that the couple had been staying at the Exel Inn until a few days

before his arrest, but had moved to the Motel 6 because it was less

expensive. Brooks further testified that he left his pit bulls, the breeding

of which were a source of livelihood for him, at his cousin’s home.

      Upon our de novo review of the record, we conclude that Brooks

did not have a legitimate expectation of privacy in the motel room. Aside

from his own self-serving statements, Brooks was unable to offer

corroborating evidence to support his claim that he was doing anything

at the Motel 6 other than selling illegal narcotics.      His claim that he

moved from one motel to another in order to save money is belied by the

fact that he had over two thousand dollars in his possession at the time

of his arrest. While there was no evidence in the record that the motel

room contained clothing or toiletries belonging to Brooks, there was

evidence that the room contained a considerable quantity of drugs, a

supply of baggies, and two sets of scales for the weighing of drugs. While

Brooks was apparently shirtless when he answered the door, the

evidence showed that a gust of warm air exited the room when the door

was opened, suggesting that the lack of shirt was for comfort rather than

indicia of long-term habitation.

      Further, the record developed at trial demonstrates that Brooks

was an incredible witness. He claimed, for instance, that the thirteen

baggies of marijuana that were found in the groin area of his jeans were

for his personal use. The defendant had no explanation for the unusual
                                    14

storage technique. He further claimed that the two scales found in the

motel room were used by him because he liked to precisely measure his

own marijuana, which he put in “blunts” for consumption. According to

Brooks, the baggies in the motel room were needed because he liked to

prepare for himself substantial individual quantities of marijuana in

advance.

      From the totality of the evidence, we find that Brooks has not

shown, by a preponderance of evidence, that he was an overnight guest

at the Motel 6. We reject his self-serving testimony. We conclude that

Brooks was using the Motel 6 for illicit commercial purposes, namely,

selling illegal drugs.   The motel room was nothing more than “a

convenient processing station” for the packaging and distribution of

drugs. Carter, 525 U.S. at 102, 119 S. Ct. at 479, 142 L. Ed. 2d at 388

(Kennedy, J., concurring).       Brooks thus had only a fleeting and

insubstantial connection to the motel room—he was “one simply

permitted on the premises.” Id. at 91, 119 S. Ct. at 474, 142 L. Ed. 2d at

381; accord Ortiz, 618 N.W.2d at 561.

      In light of our findings, Brooks had no reasonable expectation of

privacy in the Motel 6 room.      As a result, the district court properly

denied the motion to suppress.

      C. Exigent Circumstances. Aside from the question of whether

Brooks had a reasonable expectation of privacy in the motel room, there

is a substantial question as to whether a warrantless search of the

premises may be based upon exigent circumstances where the exigent

circumstances were caused by police conduct.          Similar cases have

yielded different results.   Compare United States v. Cephas, 254 F.3d

488, 494–95 (4th Cir. 2001) (holding exigent circumstances were present

to support warrantless search where officers, acting on tip regarding the
                                      15

sale of drugs to minors, knocked on apartment door, smelled marijuana,

viewed young girl inside, and made a warrantless entry to avoid the

destruction of evidence), with United States v. Coles, 437 F.3d 361, 366

(3d Cir. 2006) (holding exigent circumstances exception to warrant

requirement not met where police created exigency by knocking and

announcing their presence), and United States v. Vega, 221 F.3d 789,

798–800 (5th Cir. 2000) (finding police created exigency when they

abandoned    secure   surveillance    position   without   justification   and

approached residence).

      Further, there may also be an issue regarding whether exigent

circumstances may be found where the underlying crime is not a felony

or is relatively minor. See Welsh v. Wisconsin, 466 U.S. 740, 752, 104

S. Ct. 2091, 2099, 80 L. Ed. 2d 732, 744 (1984); State v. Hughes, 607

N.W.2d 621, 629 (Wis. 2000). In light of our resolution of the issue of

Brooks’ reasonable expectation of privacy, we express no opinion on

these questions.

      V. Conclusion.

      For the above reasons, the decision of the district court denying

the motion to suppress is affirmed.

      AFFIRMED.
