                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0470
                                Filed April 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHANNON SEE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joseph M.

Moothart, District Associate Judge (motion to suppress), and Joel A. Dalrymple,

Judge (trial and sentencing).



      Shannon See appeals her convictions and sentences for possession of a

prescription drug and possession of a controlled substance, following a trial on

the minutes. REVERSED AND REMANDED.




      Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Kristin A.

Guddall (until withdrawal), Assistant Attorneys General, for appellee.



      Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.

       Shannon See appeals her convictions and sentences following a trial on

the minutes of testimony for one count of possession of a prescription drug and

one count of possession of a controlled substance, both serious misdemeanors.

See claims the district court erred in denying her motion to suppress. Upon our

review, we reverse See’s convictions and remand for new trial on the basis the

motion to suppress should have been granted because there was no probable

cause to search See’s vehicle. We find this issue dispositive and do not reach

See’s other claims.

       I.     Background Facts and Proceedings

       On February 17, 2015, at about 2:45 a.m., an officer with the Waterloo

Police Department was dispatched to a local gas station after receiving a report

from the gas station clerk of a suspicious occupied vehicle that had been parked

in front of the store at the gas pump for approximately thirty minutes. An officer

arrived at the scene, pulled in directly behind the vehicle, and activated the patrol

car’s lights before approaching See’s vehicle. The officer observed See in the

driver’s seat, Trivino Clark in the front passenger seat, and an infant in the back

seat. The officer informed See and Clark that a gas station employee had called

the police about a suspicious vehicle that had been there for an extended period

of time and asked them why they were parked there. See replied they had been

parked there because “[Clark] had to go get money for gas.” The officer then

asked for both See’s and Clark’s identification. After running their identifications

back in his car, the officer learned Clark had an outstanding warrant for his arrest

for failure to appear. Two additional officers then arrived at the scene.
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       The first officer returned to See’s vehicle, informed Clark there was a

warrant for his arrest, and placed Clark under arrest without incident. The officer

conducted a search of Clark’s person outside of the vehicle incident to his arrest

and found a glass pipe containing marijuana residue and ash in Clark’s jacket

pocket. An officer then escorted Clark to the back of a patrol car. The officer

later testified at the suppression hearing that he could smell marijuana and

alcohol emanating from Clark. The officer did not smell marijuana coming from

the vehicle or any of its passengers while they were in the vehicle. The officer

also testified he could not recall whether the pipe found in Clark’s pocket was

warm or cold.

       An officer informed See they had found a marijuana pipe on Clark and

needed to search her vehicle. See initially refused to get out of the car but

eventually agreed to the officers’ demands after she was told she could be

arrested if she did not comply. An officer observed an orange and white pill

bottle in the front pocket of See’s hoodie as she exited the vehicle.            See

attempted to take her purse out of the car with her, but an officer told her to leave

it; See complied. One officer searched the vehicle while another officer asked

See to empty her pockets. See did not remove the pill bottle from her pocket or

acknowledge that she had it, stating she only had money and cigarettes with her.

       The officer searching the vehicle indicated he had found marijuana in

See’s purse, and she was placed under arrest. After she was handcuffed, an

officer searched her person and found the unmarked pill bottle, which contained

several different types of prescription pills, a plastic bag with a glass pipe and two

different   types   of   pills,   and   a   pipe   wrapped   in   tissue   containing
                                          4


methamphetamine residue. See claimed she had a prescription for one of the

pills in the bottle. The officers also found a bag in See’s car containing a digital

scale and marijuana.

       The State filed a trial information charging See with one count of

possession of a prescription drug, in violation of Iowa Code section 155A.21

(2015),      and   one   count   of   possession   of   a   controlled   substance,

methamphetamine, in violation of section 124.401(5).

       See filed a motion to suppress challenging both the detention of her

vehicle and the subsequent searches and seizure of her person and vehicle

under both the Fourth Amendment of the U.S. Constitution and article I, section 8

of the Iowa Constitution. The district court denied See’s motion, concluding the

seizure of See’s person and her vehicle was justified under the community

caretaking exception to the warrant requirement and the subsequent searches of

her person and the vehicle were supported by probable cause and exigent

circumstances.

       The case proceeded to trial on the minutes of testimony, following which

the court found See guilty of one count of possession of a prescription drug and

one count of possession of a controlled substance. The court sentenced See to

ninety days in jail on each count to run concurrently, suspended the sentences,

placed her on probation for a period of one year, and imposed fines plus

surcharges and fees. See appeals.

       II.     Standards and Scope of Review

       Because See asserts the district court violated her constitutional rights in

denying her motion to suppress, we review her claim de novo. See State v.
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Coleman, 890 N.W.2d 284, 286 (Iowa 2017). “We independently evaluate the

totality of the circumstances found in the record, including the evidence

introduced at both the suppression hearing and at trial.” State v. Gaskins, 866

N.W.2d 1, 5 (Iowa 2015) (quoting State v. Vance, 790 N.W.2d 775, 780 (Iowa

2010)). We are not bound by the district court’s credibility determinations, but we

can give them deference. See State v. Naujoks, 637 N.W.2d 101, 106 (Iowa

2001).

         III.   Analysis

         See asserts the warrantless seizure of her vehicle and her person and

subsequent searches of her vehicle and her person violated her constitutional

rights under the Fourth Amendment of the U.S. Constitution and under article I,

section 8 of the Iowa Constitution. She does not argue that we should evaluate

her claims differently under the two constitutional provisions.         The U.S.

Constitution and the Iowa Constitution both grant protections against

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

art. I, sec. 8. “We follow an independent approach in the application of our state

constitution.” State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). “However,

when a party does not argue an independent approach, ‘we ordinarily apply the

substantive federal standards but reserve the right to apply the standard in a

fashion different from federal precedent.’” Id. (quoting State v. Tyler, 830 N.W.2d

288, 291–92 (Iowa 2013)).

         See claims the seizure of her vehicle and her person was unlawful and not

supported by reasonable suspicion of criminal activity or any exception to the
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warrant requirement. She also claims the subsequent searches of her vehicle

and her person were without probable cause and exigent circumstances.

       “Searches conducted without a warrant are per se unreasonable, ‘subject

only to a few specifically established and well-delineated exceptions.’” State v.

Watts, 801 N.W.2d 845, 850 (Iowa 2011) (quoting Katz v. United States, 389

U.S. 347, 357 (1967)).       Iowa law recognizes exceptions to the warrant

requirement for “searches based on consent, plain view, probable cause coupled

with exigent circumstances, searches incident to arrest, and those based on the

emergency aid exception.” State v. Lewis, 675 N.W.2d 516, 521 (Iowa 2004).

The State has the burden of proving by a preponderance of the evidence that an

exception to the warrant requirement applies. State v. Simmons, 714 N.W.2d

264, 272 (Iowa 2006). If the State fails to meet its burden, evidence obtained in

violation of the warrant requirement is inadmissible.     State v. Crawford, 659

N.W.2d 537, 541 (Iowa 2003).

       See contends the officers did not have probable cause to search her

vehicle because the odor of marijuana was emanating from Clark’s person

instead of the vehicle itself, the pipe containing marijuana residue and ash was

found on Clark’s person in a search incident to his arrest and the officer did not

testify the pipe was warm,1 she did not appear to be under the influence of any

substances, and there was no evidence of drugs or drug paraphernalia in plain

view in her vehicle.




1
 A warm pipe could have been evidence to suggest it had been recently smoked in the
vehicle.
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      The State does not assert the searches of See’s vehicle and her person

were lawful incident to Clark’s arrest. See Gaskins, 866 N.W.2d at 5. Instead,

the State argues the officers had probable cause to search See’s vehicle and its

contents—including her purse—when an officer smelled marijuana emanating

from Clark’s person after he exited See’s vehicle and the officers found a pipe

containing marijuana ash and residue in his jacket pocket during the search of

his person, which they conducted incident to his arrest for the outstanding

warrant. Then, once the officers discovered marijuana in See’s purse, they could

lawfully search her incident to her arrest. See Lewis, 675 N.W.2d at 522.

      “Probable cause for a vehicle search exists when the facts and

circumstances would lead a reasonably prudent person to believe that the

vehicle contains contraband.” State v. Edgington, 487 N.W.2d 675, 678 (Iowa

1992) (quoting United States v. Strickland, 902 F.2d 937, 942 (11th Cir. 1990)).

“The facts and circumstances upon which a finding of probable cause is based

include ‘the sum total . . . and the synthesis of what the police have heard, what

they know, and what they observe as trained officers.’” Id. (quoting Strickland,

902 F.2d at 942–43).     “[P]robable cause need not rise to the level of proof

required for conviction, or even indictment, [but] it requires ‘more than bare

suspicion.’” State v. Horton, 625 N.W.2d 362, 365 (Iowa 2001) (citation omitted).

In considering whether the officers had probable cause to search See’s vehicle,

we conduct “an independent evaluation of the totality of the circumstances as

shown by the entire record.” State v. Maddox, 670 N.W.2d 168, 171 (Iowa 2003)

(quoting Crawford, 659 N.W.2d at 541).
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       There is no dispute the officers would have had sufficient probable cause

to search See’s vehicle and its contents had they observed evidence of drugs or

other illegal activity in plain view within the car. See, e.g., State v. Cullor, 315

N.W.2d 808, 811 (Iowa 1982) (“Items in plain view within a car, viewed by police

officers standing outside the car where they have a right to be, can furnish

probable cause for a subsequent search of the car.”); see also State v. Eubanks,

355 N.W.2d 57, 60 (Iowa 1984) (“Once the patrolman lawfully stopped the car

and had probable cause to search for contraband, all containers within the car

when it was stopped were fair game for the car search. Defendant had no right

to insulate her purse or any other container from a lawful warrantless search by

the simple expedient of physically removing the purse and its contents from the

car while the search was in progress.”). There is also no dispute there would

have been probable cause if the officers had smelled marijuana or another illegal

substance emanating from See’s vehicle. See, e.g., Eubanks, 355 N.W.2d at 59

(holding the odor of burnt marijuana emanating from the interior of the

defendant’s car was sufficient probable cause to authorize a vehicle search).

However, the officers in this case observed neither of these telltale signs.

Further, See did not appear nervous to the officers. See State v. Predka, 555

N.W.2d 202, 207 (Iowa 1996). The officers had no particularized knowledge of

any history of drug use or activity by See. See State v. Goddard, No. 14-1076,

2015 WL 3914327, at *4 (Iowa Ct. App. June 24, 2015). And See did not appear

to be under the influence of any drugs at the time. Id. In short, there were no

factors present in this case to suggest the officers would find evidence of criminal
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activity in See’s vehicle other than the used marijuana pipe that the officers found

in See’s passenger’s coat pocket.

       Accordingly, we find there was not probable cause to conduct a

warrantless search of See’s vehicle. Thus, evidence seized as a result of the

search of See’s vehicle and subsequent search of her person should have been

suppressed.     Because we find there was insufficient cause to search See’s

vehicle, we decline to address See’s other claims.

       We reverse See’s convictions and remand for proceedings consistent with

this opinion.

       REVERSED AND REMANDED.
