                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0412
                                Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AUSTIN MICHAEL MUILENBURG,
     Defendant-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Clay County, Patrick M. Carr (motion

to suppress) and Nancy L. Whittenburg (trial), Judges.



        Austin Muilenburg appeals his convictions for three drug-related offenses.

AFFIRMED.



        Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R.

Wilson, Assistant Appellate Defender, for appellant.

        Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



        Considered by Tabor, P.J., and Mullins and Bower, JJ. Carr, S.J., takes no

part.
                                         2


MULLINS, Judge.

       Austin Muilenburg appeals his convictions, following a trial on the minutes

of evidence, of three drug-related offenses. He argues: (1) the district court erred

in denying his motion to suppress evidence obtained pursuant to a warrant,

contending the warrant was unsupported by probable cause; (2) his trial counsel

rendered ineffective assistance in failing to challenge the probable cause

supporting the warrant, specifically the qualifications of the police officer who

applied for the warrant; and (3) there was insufficient evidence to support his

convictions of possession of cocaine and prescription drugs without a valid

prescription.

I.     Background Facts and Proceedings

       The following facts can be gleaned from the suppression record. On April

3, 2017, Officer Leigh Winterboer of the Spencer Police Department observed an

individual, identified as Alex Cody, drive by Winterboer’s location. Winterboer

knew Cody’s driver’s license was either revoked or suspended, so Winterboer

followed him after confirming Cody’s lack of driving privileges with police dispatch.

Winterboer followed Cody to an apartment building, and before Winterboer could

stop and make contact, he observed Cody exit his vehicle and enter the apartment

building. Winterboer asked Cody’s passenger, who Cody left behind in his vehicle,

about Cody’s location. The individual reported that Cody went inside the building

to his apartment. Winterboer knocked on the apartment door, and Muilenburg

answered. Winterboer noticed a faint odor of burnt marijuana emanating from the

apartment at the time. When Winterboer asked for Cody, Muilenburg closed the

door; after a short time, Cody opened the door. Winterboer placed Cody under
                                                3


arrest. After Winterboer transported Cody to the police station, he filled out an

application for a search warrant. The affidavit1 in support of the warrant application

stated, in pertinent part:

          On 4-3-17 at approximately 19:07 hrs. I (Officer Winterboer)
          observed [Cody] operating his [vehicle] in the 10 block of 4th St. S.W.
          [Cody] then got out of the vehicle when he observed a patrol vehicle
          and ran to the upstairs apartment, 12.5 4th Street S.W. leaving the
          passenger . . . standing outside Cody’s vehicle. I asked [the
          passenger] where [Cody] went and he stated upstairs to [Cody’s]
          apartment. As l went upstairs I knocked on the only door up the
          stairs. An unknown male answered the door and l asked him to get
          [Cody]. At this time I was able to detect a slight odor of burnt
          marijuana coming from inside the apartment. This unknown male
          then closed the door and [Cody] came back out shortly.
                  Approximately 2 weeks prior to this incident a concerned
          citizen [called law enforcement to report an individual walking into
          the apartment known to be subject to a valid court order committing
          her to a hospital]. At this time I went to 12.5 4th St. S.W. and knocked
          on the upstairs apartment . . . . Another unidentified male came to
          the door and stated that [individual] did not live here. At this time I
          was able to detect the odor of burnt marijuana coming from his
          person. Upon speaking with this male he stated that [the requested
          individual] does not live here but [Cody] does.
                  Based on my training and experience, I know that individuals
          who use illegal narcotics often keep the narcotics or items related to
          the consumption of narcotics in their personal property within their
          residence or garages, or on their persons. Based on the information
          provided, there is probable cause to believe that items indicating the
          possession and/or use of illegal narcotics and drug paraphernalia is
          present on the person of [Cody] or in the residence located at 12.5
          4th St. S.W. in Spencer, Clay County, Iowa. A search of the above
          named person and residence is necessary to verify the facts in this
          case. I am therefore requesting that the Court allow me to search
          the person of [Cody] and in the residence located at 12.5 4th St. S.W.
          in Spencer, Clay County, Iowa and seize any property located.

At the time of the warrant application, Winterboer did not know the identity of the

individuals who came to the door on either occasion. A judicial magistrate granted

the warrant application.


1
    The affidavit is a part of and included in our references to the application.
                                        4


      The following facts can be gleaned from the minutes of evidence. After the

magistrate granted the warrant application, local law enforcement, including

Winterboer, executed the search warrant at the apartment. Winterboer knocked

and announced their presence and ordered the door to be opened immediately.

When no one complied after multiple announcements, officers breached the

apartment. Winterboer encountered Muilenburg near the entry door. Muilenburg

was compliant with Winterboer’s commands to drop to the floor. Winterboer and

other officers cleared and secured the apartment, and no one else was located in

the apartment. Winterboer read the search warrant to Muilenburg. When asked,

Muilenburg admitted he had a pipe and a bag of marijuana in his pockets, which

were recovered. An officer read Muilenburg his Miranda rights and asked which

bedroom was his. Muilenburg advised the south bedroom was his and the north

bedroom was his roommate’s. Muilenburg also stated Cody no longer lived at the

apartment, as Muilenburg and his roommate recently kicked Cody out. Winterboer

identified Muilenburg as the individual who answered the door earlier that day and

the roommate as the individual who answered the door two weeks before.

      Winterboer transported Muilenburg to the police station and then returned

to the apartment to help with the search. When he returned, other officers were

finishing their search of Muilenburg’s bedroom. From the communal areas of the

apartment and in the roommate’s bedroom, police discovered multiple drug-related

items. From Muilenburg’s bedroom, officers seized numerous drug-related items,

including a gym bag containing a “pipe/glass jar” with marijuana residue, multiple

pipes, marijuana grinders, a small baggy containing cocaine, a water bong, a

container with four individually wrapped bags of marijuana, a digital scale, cash,
                                          5


and three orange or yellow pills. The pills were imprinted with “G 13 7” and,

through an online database, police identified them as oxcarbazepine, which is only

available by prescription.      After preparing the charges against Muilenburg,

Winterboer advised him of the possibility of forfeiture proceedings for cash that

was also seized, at which time Muilenburg said he was taking responsibility for any

items located in his bedroom.

         Muilenburg was charged by trial information with: (1) possession with intent

to manufacture or deliver marijuana, (2) possession of cocaine, and (3) possession

of a prescription drug without a valid prescription. Muilenburg filed a pretrial motion

to suppress the evidence obtained pursuant to the warrant. He argued the warrant

lacked sufficient probable cause and the search exceeded the scope of the

warrant. Following a hearing, during which only Winterboer testified, the court

denied the motion, concluding there was sufficient probable cause to support the

warrant’s issuance and the warrant permitted the search of the entire apartment,

including Muilenburg’s bedroom, thus the police did not exceed the warrant’s

scope.

         Muilenburg waived his right to a jury trial, and the matter proceeded to a

bench trial on the minutes of evidence. The court found Muilenburg guilty as

charged. Muilenburg appealed following the imposition of sentence.

II.      Analysis

         A.    Motion to Suppress

               1.     Probable Cause

         Muilenburg argues the district court erred in denying his motion to suppress

evidence obtained pursuant to the search of his bedroom. Specifically, he argues
                                         6


the search warrant for the apartment was not supported by probable cause and

the search therefore violated his rights under the Fourth Amendment to the United

States Constitution and article I, section 8 of the Iowa Constitution. “We review

the denial of a motion to suppress on constitutional grounds de novo.” State v.

Ingram, 914 N.W.2d 794, 798 (Iowa 2018).

       Warrants must be supported by probable cause. State v. McNeal, 867

N.W.2d 91, 99 (Iowa 2015).

              The test to determine whether there is probable cause to issue
       a search warrant is whether a person of reasonable prudence would
       believe a crime was committed on the premises to be searched or
       evidence of a crime could be located there. Probable cause to
       search requires a probability determination that (1) the items sought
       are connected to criminal activity and (2) the items sought will be
       found in the place to be searched.

Id. (altered for readability) (quoting State v. Gogg, 561 N.W.2d 360, 363 (Iowa

1997)). “The issuing judge ‘is simply to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him, including

the “veracity” and “basis of knowledge” of persons supplying hearsay information,’

probable cause exists.” Gogg, 561 N.W.2d at 363 (quoting Illinois v. Gates, 462

U.S. 213, 238 (1983)). “In doing so, the judge may rely on ‘reasonable, common

sense inferences’ from the information presented.” Id. (quoting State v. Green,

540 N.W.2d 649, 655 (Iowa 1995)).

       Appellate courts, “do not make an independent determination of probable

cause; rather, we determine ‘whether the issuing judge had a substantial basis for

concluding probable cause existed.’” McNeal, 867 N.W.2d at 99 (quoting Gogg,

561 N.W.2d at 363). “In determining if evidence seized pursuant to a warrant

should be suppressed, ‘the affidavit of probable cause is interpreted in a common
                                          7

sense, rather than a hypertechnical, manner.’”         Id. at 100 (quoting State v.

Shanahan, 712 N.W.2d 121, 132 (Iowa 2006)).              “[W]e draw all reasonable

inferences to support the judge’s finding of probable cause and give great

deference to the judge’s finding.” Id. (quoting Gogg, 561 N.W.2d at 364). Our

consideration is limited to the information presented to the judge at the time of the

warrant application. Id.

        On our review of the information provided in the affidavit and application for

the search warrant, we find there is a substantial basis for the issuing magistrate

to conclude probable cause existed for the issuance of the search warrant.

               2.     Scope of Search

        Muilenburg also contends that the officers exceeded the scope of the

warrant by searching his bedroom. The warrant issued here states, in pertinent

part:

        You are commanded to make immediate search of the persons of
        [Cody] and at the residence located at 12.5 4th St. S.W., Spencer,
        Clay County, Iowa, including the entire premises and curtilage,
        garages, sheds, outbuildings, and vehicles found to be under the
        control of the persons named herein where the items to be seized
        might be kept or hidden.

        Generally, “the police must obtain a search warrant before entering or

searching an area where a person has a reasonable expectation of privacy.” State

v. Fleming, 790 N.W.2d 560, 564 (Iowa 2010). “A search warrant is typically

directed at a particular location or thing to be searched.” State v. Prior, 617 N.W.2d

260, 263 (Iowa 2000). The warrant “can also authorize the search of both a place

and persons.” Id. If “this is done, the particularity requirement separately applies

to the place to be searched and to each person to be searched.” Id. “[T]he warrant
                                         8


that is issued must describe the place or person to be searched with particularity.”

Id. An “officer must be able to reasonably ascertain and identify the place or

person to be searched so that nothing is left to the discretion of the executing

officer.”   Id.   “[W]hen single, unrelated persons live together in a house [or

apartment], the kitchen, living room, bathroom, hallways and entryways are

communal space,” in which there is no expectation of privacy. Fleming, 790

N.W.2d at 567. However, in those situations, “the individual bedrooms remain

private” and there is “a reasonable expectation of privacy in an individual room

rented within a single-family house” or apartment. Id. “An individual challenging

the legality of a search has the burden of showing a legitimate expectation of

privacy in the area searched.” Id. at 564. We determine “whether a person has a

legitimate expectation of privacy with respect to a certain area . . . on a case-by-

case basis, considering the unique facts of each particular situation.” State v.

Breuer, 577 N.W.2d 41, 46 (Iowa 1998). If we find Muilenburg had a legitimate

expectation of privacy, we must then determine if the search warrant authorized

the search of his bedroom.

        Winterboer testified that while executing the warrant, Muilenburg told him

that Cody no longer lived there and there was a bed in the living room where Cody

had slept. Further, Muilenburg identified the south bedroom as his and the north

bedroom as his roommate’s. The record does not establish in whose name the

apartment was rented or whether Muilenburg paid any rent. The State does not,

however, contest that the south bedroom was Muilenburg’s or that he had an

expectation of privacy. We will therefore assume he had a reasonable expectation

of privacy and proceed to the scope of the search warrant.
                                            9


       In the execution of the warrant, the officers searched the entire premises.

At the suppression hearing, Muilenburg argued, in executing the search warrant,

the police exceeded the scope of the warrant when they searched his bedroom.

He argued the warrant clause “found to be under the control of [Cody]” applied as

a limitation to the entire premises and to vehicles under the control of Cody and

therefore did not allow a search of premises not under the control of Cody—

Muilenburg’s bedroom. In denying Muilenburg’s motion to suppress, the district

court disagreed with that interpretation. The court found the clause only limited

the search of the vehicles and concluded “the search of [Muilenburg]’s bedroom,

being within the described apartment ‘including the entire premises,’ is well within

the scope of the area to be searched.” Muilenburg advances the same argument

in this appeal that he raised in the district court.

       In Fleming, a search warrant was issued to search the person and

residence of someone named Nearman for marijuana and related items. 790

N.W.2d at 562. When executing the warrant, Nearman was found in a back room

by the kitchen. Id. Three other men, including Fleming, were located in the dining

and living room and were detained. Id. During a search of the entire residence,

police found several pounds of marijuana near Nearman’s bed and thousands of

dollars inside his bedside table. Id. They also found a small quantity of marijuana

in Fleming’s bedroom. Id. Fleming filed a motion to suppress, claiming he rented

the bedroom, he was in exclusive possession of the bedroom, he had a reasonable

expectation of privacy in that room, and the search warrant did not authorize the

search of his room. The supreme court explained:
                                         10


       There was no reason to believe that Nearman had access to that
       room or that he may have hidden drugs there. Further, there was no
       showing to the magistrate that Fleming was in possession of drugs.
       In ruling on Fleming’s motion to suppress, the district court found
       Leckband and Lammers had informed police in their
       post Miranda interviews that Nearman had a roommate or
       roommates and told police they believed there was marijuana in all
       of the bedrooms in the residence. This information, however, was
       not contained in the search warrant application.
               [W]e have strictly limited the determination of whether
               probable cause exists to a consideration of only those
               facts reduced to writing that were actually presented to
               the issuing judge at the time the application for the
               warrant was made. Any additional facts adduced later
               cannot be considered.
       The only person named in the application as having possession of
       drugs was Nearman. Thus, there was no showing of probable cause
       to search Fleming’s room. Therefore, the search of his room was
       warrantless.

Id. at 567–68 (emphasis added) (citation omitted).

       As our supreme court did in Fleming, we look to the warrant application to

determine the basis for issuing the warrant and therefore bring clarity to the

interpretation of the warrant that was executed. The application recites that, earlier

on that day, Winterboer observed Cody driving a vehicle and when Cody saw the

officer, Cody got out of the vehicle and went to the upstairs apartment at 12.5 4th

St. S.W. In pursuit, the officer went upstairs to the apartment. In the supporting

affidavit, Winterboer explained:

              As I went upstairs I knocked on the only door up the stairs.
       An unknown male answered the door and I asked him to get [Cody].
       At this time I was able to detect a slight odor of burnt marijuana
       coming from inside the apartment. This unknown male then closed
       the door and [Cody] came back out shortly.

The affidavit also referenced another unidentified male Winterboer encountered at

the door of the same apartment approximately two weeks earlier in connection with
                                            11


an unrelated matter, and states: “[a]t this time I was able to detect the odor of

burnt marijuana coming from his person.” The affidavit concludes:

       [T]here is probable cause to believe that items indicating the
       possession and/or use of illegal narcotics and drug paraphernalia is
       present on the person of Alexander Robert Cody . . . or in the
       residence located at 12.5 4th St. S.W., in Spencer, Clay County,
       Iowa. A search of the above named person and residence is
       necessary to verify the facts in this case. I am therefore requesting
       that the Court allow me to search the person of Alexander Robert
       Cody . . . and in the residence. . . .

(Emphasis added.)        Muilenburg argues Fleming supports his motion.                His

argument rests on the assertion that only the portion of the residence that had

been used by Cody was covered by the warrant, and because Cody’s name was

included in the warrant, the warrant was limited to Cody. The State distinguishes

Fleming and argues that Muilenburg was referenced in the warrant application,

and the entire residence, including his bedroom, was a target of the warrant.2

       The application references Cody and two unnamed individuals all

associated with the residence from which the odor of marijuana emanated from on

two separate occasions. The language of the warrant is directed separately at the

person of Cody and at the described residence. Combining Winterboer’s two visits

to the apartment, the officer detected the odor of marijuana on each occasion and

encountered Cody plus one person on one occasion and another person on the



2
  On appeal, the State also argues that law enforcement could search the bedroom
pursuant to Iowa Code section 808.7 (2017), which allows “officers executing search
warrants to protect themselves and others and safeguard evidence by securing the scene
and searching persons there for weapons.” State v. Brown, 905 N.W.2d 846, 862 (Iowa
2018). During the suppression hearing, the State did not argue plain view in connection
with the safety sweep, but relied only on the language of the warrant permitting the search
of the bedroom. Therefore, we find these arguments waived. See State v. Baldon, 829
N.W.2d 785, 789 (Iowa 2013); see also State v. Ochoa, 792 N.W.2d 260, 291 (Iowa 2010)
(“An argument not made on an issue before the district court is ordinarily waived.”).
                                         12


earlier occasion. And, on the occasion Cody was found, Cody had only just arrived

at the apartment, having been followed there by Winterboer. It is logical to infer

that marijuana was already being smoked in the apartment before Cody arrived

moments before Winterboer took him into custody.             There was substantial

evidence from which the magistrate could have found probable cause to believe

there was marijuana in the apartment and that persons in the apartment other than

Cody possessed marijuana.

       We conclude the warrant authorized both a search of Cody and a search of

the residence, each being separately and particularly identified. See Prior, 617

N.W.2d at 263.      As explained above, unlike the Fleming case, the warrant

application in this case clearly identified the person whose name appeared in the

warrant and two separate people who were at the residence when the odor of

marijuana emanated from the apartment. Muilenburg, the person Winterboer

recognized from the apartment encounter earlier in the day, is one of the

individuals not identified by name, but referenced in the application for the warrant.

This is not a case in which the person claiming a violation of an expectation of

privacy was never referenced in the application for the warrant, as was the case in

Fleming. The application and warrant were directed not only at Cody, but also at

the residence, which ended up being the residence of Muilenburg, one of the very

persons referenced in the application. We conclude the search of Muilenburg’s

bedroom was within the scope of the warrant. Accordingly, we affirm the district

court’s denial of Muilenburg’s motion to suppress.
                                         13


       B.     Ineffective Assistance of Counsel

       Muilenburg claims his trial counsel was ineffective in failing to challenge the

probable cause supporting the search warrant based on the officer’s lack of

qualifications.   He contends that the warrant application failed to provide the

officer’s qualifications to identify the odor of burnt marijuana, which serves as the

basis for the warrant.

       We review ineffective-assistance-of-counsel claims de novo.           State v.

Schlitter, 881 N.W.2d 380, 388 (Iowa 2016).         Claimants must establish by a

preponderance of the evidence both deficient performance and resulting prejudice.

Id.; see also Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez,

907 N.W.2d 112, 116 (Iowa 2018). To show deficient performance, a claimant

“must demonstrate the attorney performed below the standard demanded of a

reasonably competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). “We presume defense counsel acted competently.” Lopez, 872 N.W.2d at

116. “We assess counsel’s performance ‘objectively by determining whether [it]

was reasonable, under prevailing professional norms, considering all the

circumstances.’” Nguyen v. State, 878 N.W.2d 744, 752 (Iowa 2016) (quoting

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015)). An applicant must also

prove counsel’s failure to perform an essential duty resulted in prejudice, which

occurs when “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 690–91).

“Reasonable probability” is defined as “a probability sufficient to undermine

confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694).
                                         14


       Based upon our review of the record, we find it inadequate to address this

claim on appeal. We therefore preserve this claim for possible postconviction-

relief proceedings. See Shanahan, 712 N.W.2d at 143.

       C.     Sufficiency of the Evidence

       Finally, Muilenburg challenges the sufficiency of the evidence to support his

convictions of possession of cocaine and prescription drugs without a valid

prescription. We review a challenge to the sufficiency of evidence for correction

of errors at law. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). In our review,

“[w]e ‘consider all of the record evidence viewed in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence. We will uphold a verdict if substantial record evidence supports it.’” Id.

(quoting State v. Showens, 845 N.W.2d 436, 439–40 (Iowa 2014)). “Evidence is

substantial when ‘a rational trier of fact could conceivably find the defendant guilty

beyond a reasonable doubt.” Id. (quoting State v. Thomas, 561 N.W.2d 37, 39

(Iowa 1997)). Evidence is not substantial if it raises only “suspicion, speculation,

or conjecture.” Thomas, 561 N.W.2d at 39 (quoting State v. Randle, 555 N.W.2d

666, 671 (Iowa 1996)).

       Muilenburg was charged with possession of cocaine in violation of Iowa

Code section 124.401(5), which provides “[i]t is unlawful for any person knowingly

or intentionally to possess a controlled substance unless such substance was

obtained directly from, or pursuant to, a valid prescription . . . or except as

otherwise authorized by this chapter.” To prove unlawful possession, the State

must prove that Muilenburg “exercised dominion and control over the contraband,
                                         15


had knowledge of the contraband’s presence, and had knowledge the material was

a narcotic.” State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008).

       Here, Muilenburg seemingly does not contest the first two elements of

possession, as he identified the south bedroom was his and he took responsibility

for anything found within it. Instead, he focuses his arguments on the “knowledge

the material was a narcotic” element.       He contends the minutes of evidence

contained insufficient information about his knowledge of the narcotic character of

the drug. “Knowledge of the narcotic character . . . of the drug, . . . may be shown

by the conduct, behavior and declarations of the accused.” State v. Reeves, 209

N.W.2d 18, 22 (Iowa 1973). On our review, and viewing the evidence in the light

most favorable to the State, we find the evidence sufficient for the district court to

reasonably infer that Muilenburg had knowledge of the cocaine’s narcotic

character based upon his constructive possession and exclusive control of his

bedroom and the controlled substances found therein.

       The State also charged Muilenburg with possession of a prescription drug

without a valid prescription, in violation of Iowa Code section 155A.21. Section

155A.21 provides “[a] person found in possession of a drug or device limited to

dispensation by prescription, unless the drug or device was so lawfully dispensed,

commits a serious misdemeanor.” A conviction requires the State to establish

Muilenburg “(1) was found in possession, (2) of a prescription drug, and (3) the

drug was not lawfully dispensed to him.” State v. Brubaker, 805 N.W.2d 164, 171

(Iowa 2011).

       Muilenburg does not contest that the pills were found in his possession, that

the pills were oxcarbazepine, which requires a prescription, or that the pills were
                                         16


not lawfully dispensed to him. He instead argues that the State failed to prove that

he had knowledge of the nature of the pills. Knowledge of the nature of the pills is

not an element the State was required to prove. See Iowa Code § 155A.21.

Because Muilenburg does not challenge the establishment of the elements of the

offense, we find there is sufficient evidence to support his conviction under section

155A.21.

III.   Conclusion

       We find there was a substantial basis for the issuing magistrate to conclude

probable cause existed for the issuance of the search warrant and the search of

Muilenburg’s bedroom did not exceed the scope of the warrant. Accordingly, we

affirm the district court’s denial of Muilenburg’s motion to suppress.            We

additionally find there is sufficient evidence to support Muilenburg’s convictions for

possession of cocaine and prescription drugs without a valid prescription. We

preserve Muilenburg’s ineffective-assistance-of-counsel claim for possible

postconviction-relief proceedings.

       AFFIRMED.

       Bower, J., concurs; Tabor, P.J., concurs specially.
                                         17


TABOR, Presiding Judge (concurring specially).

       I agree with the panel’s decision to affirm Muilenburg’s drug-related

convictions. I write separately because I disagree with the majority’s assertion that

knowledge of the nature of the prescription drugs is not an element of Iowa Code

section 155A.21(1) (2017). That offense has three elements: (1) a person is “found

in possession” of a drug, (2) the drug is dispensed only by prescription, and (3) the

person did not have a lawful prescription. See State v. Brubaker, 805 N.W.2d 164,

171 (Iowa 2011). Proof of unlawful “possession” requires the State to establish

“beyond a reasonable doubt that the accused knew of the presence of such

substances on premises occupied and controlled by him, either exclusively or

jointly with others and the nature of the material.” See State v. Reeves, 209

N.W.2d 18, 23 (Iowa 1973) (emphasis added).

       Reeves interpreted a provision making it unlawful for a person to “possess

any depressant, stimulant or counterfeit drug unless the drug was obtained upon

a valid prescription.” See Iowa Code § 204A.3(2) (1971). Although the 1971

statute did not include the terms “knowingly” or “intentionally”, the Reeves court

nonetheless expected the State to prove the accused had knowledge “the material

was a narcotic.” See Reeves, 209 N.W.2d at 21. I believe the same proof

requirement applies today to the term “possession” in section 155A.21(1).

       But Muilenburg does not dispute the pills in his bedroom required a

prescription and were not lawfully dispensed to him. Therefore, even under the

definition of unlawful possession adopted in Reeves, I agree with the district court

that the State established Muilenburg had the ability to exercise dominion or
                                       18


control over items in his bedroom and, therefore, was in constructive “possession”

of the pills.
