                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1961
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SEAN TIMOTHY HUNTER,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



      In this consolidated appeal, Sean Hunter appeals the district court’s denial

of his motion to suppress evidence obtained from his cell phone. REVERSED

AND REMANDED IN BOTH CASES.



      John O. Moeller, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Heard by Bower, C.J., and Greer and Ahlers, JJ. Tabor, J., takes no part.
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AHLERS, Judge.

        Law enforcement officers executing a search warrant are permitted to

detain the occupants or those in the immediate vicinity of the premises while a

proper search is conducted. See Michigan v. Summers, 452 U.S. 692, 701-04

(1981). This appeal calls on us to answer the question of how far is too far in

determining whether an occupant is in the immediate vicinity of the premises to be

searched. While we cannot answer the question with a definitive unit of measure,

we can and do say that “a few blocks” is too far under the circumstances of this

case.

        In this consolidated appeal, Sean Hunter appeals the district court’s denial

of his motion to suppress evidence obtained from his cell phone and the revocation

of his probation in a separate criminal case. On appeal, Hunter argues the seizure

of both his person and his cell phone away from his residence and the later search

of his cell phone violated his rights under the Fourth Amendment to the United

States Constitution and article I, section 8 of the Iowa Constitution. He also argues

there was insufficient admissible evidence to support his conviction. Finally, he

argues the revocation of his probation and sentence in the separate criminal case

must be vacated because the revocation was based on his conviction.

        I.    Background

              a.     Factual Background

        This consolidated appeal arises out of two separate criminal cases, both

involving drug crimes. In the first case, FECR376353, Hunter pleaded guilty to

manufacturing, delivering, or possessing with intent to manufacture or deliver

marijuana in violation of Iowa Code section 124.401(1)(d) (2016) and failure to affix
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tax stamp in violation of section 453B.12. The district court granted Hunter a

deferred judgment and placed Hunter on probation for two years.

      The search at issue on appeal occurred after Hunter was sentenced in the

first case. The search led to Hunter being charged in the second case on appeal,

FECR387453. In the second case, Davenport police received a tip that Hunter

was dealing drugs out of his residence in Davenport. They opened an investigation

and obtained a warrant permitting them to search Hunter’s residence, “any and all

storage areas under the control or accessible to the occupants therein,” and “all

open grounds, yards, easements, parking areas or other open area associated”

with the residence. The warrant application did not request authority to search

Hunter’s person or to search Hunter’s cell phone, and the warrant did not authorize

any such searches.

      After obtaining the search warrant, a Davenport police officer was

conducting surveillance of Hunter’s residence.     The plan was to execute the

warrant that day, but the full search team had not yet arrived. While conducting

surveillance, the officer observed Hunter and another male leave the residence on

motorcycles. The officer followed the two to a gas station a few blocks away and

initiated contact with Hunter. The officer detained Hunter and conducted a pat

down for weapons. The officer confiscated Hunter’s cell phone and placed Hunter

in the back of the police car. The officer took Hunter back to the residence, where

the officer and other Davenport police officers executed the search warrant. The

officers found several controlled substances and drug-related items in Hunter’s

kitchen, including 32.8 grams of marijuana, a plastic bag containing powdered

cocaine, and a pill pouch containing LSD.      The officers arrested Hunter and
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retained his cell phone. The inventory of seized property filed after the search did

not list the cell phone.

       One week after the search of Hunter’s residence, Davenport police obtained

another search warrant to search Hunter’s cell phone. The subsequent search of

the phone revealed several text message exchanges between Hunter and other

people that appeared to be a discussion of drug sales.

              b.      Procedural History

       In the second case, Hunter was charged with: (1) manufacturing, delivering,

or possessing with intent to manufacture or deliver LSD in violation of Iowa Code

section 124.401(1)(b)(5) (2017); (2) manufacturing, delivering, or possessing with

intent to manufacture or deliver marijuana in violation of Iowa Code section

124.401(1)(d); and (3) possession of marijuana in violation of Iowa Code section

124.401(5). Hunter moved to suppress the evidence obtained from his cell phone

on the ground that the initial seizure of the cell phone was unlawful, noting the

original warrant did not “show or claim a nexus between any criminal activity at the

premises and the Defendant or his cell phone.” After a hearing, the district court

denied the motion.

       The case proceeded to a bench trial. The cell phone messages were

admitted into evidence. Hunter was found guilty of all three charges. Hunter

moved to enlarge the court’s findings of fact and urged it to reconsider its ruling on

his motion to suppress. The district court granted Hunter’s request to enlarge its

finding of facts by making additional factual findings, but it denied Hunter’s request

to reconsider the ruling on the suppression motion. Hunter was sentenced to pay

various financial obligations, and terms of incarceration were imposed for all three
                                         5


charges, with all but the statutory minimum sentence of two days on the

possession of marijuana charge suspended.           At the same hearing, Hunter

stipulated his conviction in the second case (FECR387453) constituted a violation

of probation imposed in the first case (FECR376353). As a consequence of

violating probation in the first case, the court revoked Hunter’s deferred judgment

and sentenced him to pay various financial obligations and imposed terms of

incarceration, which were suspended. Hunter appeals.

       II.    Standard of Review

       “When a defendant challenges a district court’s denial of a motion to

suppress based upon the deprivation of a state or federal constitutional right, our

standard of review is de novo.” State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017).

“We examine the entire record and ‘make an independent evaluation of the totality

of the circumstances.’” State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019) (quoting

State v. Meyer, 543 N.W.2d 876, 877 (Iowa 1996)).           “We consider both the

evidence introduced at the suppression hearing as well as the evidence introduced

at trial.” State v. Palmer, 791 N.W.2d 840, 844 (Iowa 2010).

       III.   Discussion

       Hunter argues the seizure of his person and his cell phone at the gas station

violated his rights under the Fourth Amendment to the United States Constitution

and article I, section 8 of the Iowa Constitution. Because Hunter has not argued

the United States Constitution and Iowa Constitution should be interpreted

differently, we will interpret them identically for this appeal. See State v. Wilkes,

756 N.W.2d 838, 843 n.1 (Iowa 2008).
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      The Fourth Amendment protects “[t]he right of the people to be secure in

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

seizures.” U.S. Const. amend. IV. “The basic purpose of this Amendment . . . is

to safeguard the privacy and security of individuals against arbitrary invasions by

governmental officials.” Camara v. Mun. Ct. of S.F., 387 U.S. 523, 528 (1967).

“Evidence obtained in violation of the Fourth Amendment is inadmissible in a

prosecution, ‘no matter how relevant or probative the evidence may be.’” State v.

Freeman, 705 N.W.2d 293, 297 (Iowa 2005) (quoting State v. Manna, 534 N.W.2d

642, 643–44 (Iowa 1995)).      “Warrantless searches and seizures are per se

unreasonable unless one of several carefully drawn exceptions to the warrant

requirement applies.” State v. Pettijohn, 899 N.W.2d 1, 14 (Iowa 2017).

      Hunter asserts the seizure of his person and his cell phone at the gas station

was a warrantless seizure under the Fourth Amendment because the warrant for

his residence did not authorize the seizure or search of Hunter or his cell phone.

He also argues the contents of the cell phone obtained pursuant to the later-

obtained warrant was fruit of the poisonous tree and should not have been

admitted as evidence at his trial. The State argues the warrant to search the

residence was sufficient to permit detaining Hunter and taking his cell phone under

the United States Supreme Court’s holding in Summers, 452 U.S. 692. Hunter

has the better of the argument.

      In Summers, law enforcement officers obtained a warrant to search the

defendant’s residence for narcotics. 452 U.S. at 701. Officers arrived at the

residence and found the defendant descending the front steps. Id. at 693. The

officers detained the defendant, moved him back inside the residence, and
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executed the search warrant. Id. After discovering narcotics in the basement, the

officers arrested the defendant, searched him, and discovered heroin in his pocket.

Id. at 694. The Court found the search of the defendant’s person was permissible

under the Fourth Amendment because the warrant to search the residence

“implicitly carrie[d] with it the limited authority to detain the occupants of the

premises while a proper search is conducted.” Id. at 705.

       The Court limited Summers decades later in Bailey v. United States, 568

U.S. 186 (2013). In Bailey, police officers were about to execute a search warrant

on the defendant’s residence when officers observed the defendant and another

person leave the residence and enter a car. Id. at 190. Two detectives followed

the defendant while other police officers executed the search warrant. Id. The

detectives followed the defendant for about one mile before pulling the defendant’s

vehicle over in a parking lot. Id. The detectives ordered the men out of the car,

patted them down, and found a ring of keys in the defendant’s pocket. Id. The

detectives handcuffed both men, informed them they were being detained incident

to the search warrant on the defendant’s residence, and transported them back to

the residence. Id. at 191. Officers found a gun and drugs in the apartment and

arrested the defendant. Id. The officers later discovered that one of the keys

seized from the defendant opened the door to the apartment at issue. Id. The

Court held the detectives violated the defendant’s Fourth Amendment rights. Id.

at 202. Overturning the district court’s denial of the defendant’s motion to suppress

the evidence obtained from the defendant’s person during the stop, the Court

imposed “[a] spatial constraint defined by the immediate vicinity of the premises to

be searched.” Id. at 201. The Court explained this new constraint was necessary
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because “[o]nce an occupant is beyond the immediate vicinity of the premises to

be searched, the search-related law enforcement interests are diminished and the

intrusiveness of the detention is more severe.” Id. Applying this new constraint to

the case before it, the Court found the defendant’s detention in a parking lot one

mile away from the residence was “at a point beyond any reasonable

understanding of the immediate vicinity of the premises in question.” Id.

      We find the holding in Bailey to be controlling, as the facts in this case are

very similar. Like Bailey, the detention here occurred at a point well beyond a

reasonable understanding of the “immediate vicinity” of Hunter’s residence.

Officers detained Hunter at a public gas station a few blocks away from the

residence.   The State argues Hunter was in the “immediate vicinity” of the

residence because Hunter could have called someone to have the person destroy

evidence of criminal activity if he noticed the police or could have raced home to

destroy evidence himself. Neither argument is persuasive. There is no evidence

in the record showing Hunter was aware of an officer observing his residence, nor

is there evidence Hunter was in view of the residence or independently knew the

police had obtained a warrant to search his residence. See State v. VanHecke,

No. 05-1181, 2006 WL 2265361, at *4 (Iowa Ct. App. Aug. 9, 2006) (holding

Summers did not support the detention of a defendant who was 400 yards away

from the residence, was not in view of the residence, and was unaware of the

warrant to search the residence at the time he was detained); see also United

States v. Sherrill, 27 F.3d 344, 346 (8th Cir. 1994) (holding Summers did not

support the detention of an occupant who had driven one block away from the

residence to be searched); cf. State v. Phipps, 528 N.W.2d 665, 667–68 (Iowa Ct.
                                         9

App. 1995) (holding Summers supported detention of the defendant and another

person seen exiting the premises to be searched as officers approached to

execute the warrant, the two individuals were “fairly near” the door of the apartment

to be searched, the two individuals were between the approaching officers and the

apartment to be searched, and the other individual tried to alert the occupants of

the apartment to the presence of law enforcement officers). Due to the fact Hunter

was not within the “immediate vicinity” of the residence when he was detained, the

seizure of Hunter, the search of Hunter, and the seizure of his cell phone were all

impermissible.   Since the subsequent search warrant for the cell phone was

predicated on the unlawful seizure of Hunter and the phone, the contents of the

phone obtained via the search warrant were unlawful fruit of the poisonous tree

and were not admissible at trial. See Wong Sun v. United States, 371 U.S. 471,

485–88 (1963).

       The State tries to save the evidence obtained from the unlawfully-searched

cell phone by arguing the seizure of the cell phone can be upheld under the

inevitable discovery doctrine, under which “relevant, probative evidence gathered

despite Fourth Amendment violations is not constitutionally excluded when the

police would have inevitably discovered the same evidence acting properly.” State

v. Christianson, 627 N.W.2d 910, 912 (Iowa 2001). The State has the burden of

proving the evidence would have been discovered through lawful means. State v.

Vincik, 436 N.W.2d 350, 354 (Iowa 1989); see also Hogan v. Kelley, 826 F.3d

1025, 1028 (8th Cir. 2016) (“For [the inevitable discovery doctrine] to apply, the

government must prove by a preponderance that there was a reasonable

probability that the evidence would have been discovered by lawful means in the
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absence of police misconduct and that the government was actively pursuing a

substantial, alternative line of investigation at the time of the constitutional

violation.”). Upon our review of the record, we conclude the State has not met its

burden. The State did not introduce evidence showing any basis for concluding

that discovery of the cell phone or its content was inevitable, or even that officers

intended to seek the phone or its contents. Given the portable nature of cell

phones, not to mention the ease of losing, discarding, exchanging, or disposing of

a cell phone or its contents, it was not inevitable the phone or its contents would

have been discovered had officers not illegally seized Hunter and the phone.

       IV.    Conclusion

       We conclude the seizure of Hunter and his cell phone was not

constitutionally permitted and the subsequent warrant authorizing search of the

phone was fruit of the unlawful seizure. Therefore, the contents of the cell phone

obtained via the subsequent search warrant should have been suppressed and

not admitted as evidence at trial. Due to the improperly-obtained evidence being

admitted at trial, the conviction and sentence imposed are hereby vacated and the

case (FECR387453) is remanded for a new trial without admission of the

improperly-obtained evidence.

       We do not address Hunter’s sufficiency-of-the-evidence claim on appeal in

light of our resolution remanding for a new trial in FECR387453. Due to the fact

that the revocation of his probation in FECR376353 was based on his conviction

in FECR387453, which has now been vacated, we vacate the revocation of his
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probation and the sentence imposed in FECR376353 and remand the case for

further proceedings.

      We remand both cases for proceedings consistent with this opinion.

      REVERSED AND REMANDED IN BOTH CASES.
