                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1474
                              Filed August 5, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MORGAN LEA MYERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Bremer County, Peter B. Newell,

District Associate Judge.



      Morgan Myers appeals her conviction on one count of possession of a

controlled substance. AFFIRMED.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Kasey E. Wadding, County Attorney, and Jill Dashner,

Assistant County Attorney, for appellee.



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

      Morgan Myers appeals her conviction on one count of possession of a

controlled substance.

      I. Factual and Procedural Background

      At approximately 12:38 a.m. on November 17, 2013, a Bremer County

Sheriff Deputy noticed a vehicle parked in a rural driveway off the side of the

highway with its headlights off. The deputy approached the vehicle. Anthony

Pirtle was in the driver’s seat and Myers was in the passenger’s seat; neither

lived at the residence connected to the driveway. Pirtle and Myers indicated they

had pulled over to use their GPS device. Myers told the deputy they were on

their way to pick up some clothing from her friend’s house. However, she did not

know the name of the friend or the friend’s address when prompted. The deputy

asked Myers and Pirtle for identification and ran drivers’ license checks, which

revealed Myers’s and Pirtle’s histories of drug offenses. The deputy noticed

butane fluid, tools, four mobile telephones, and three GPS units in plain sight in

the vehicle. Myers and Pirtle “both seemed kind of nervous.”

      The deputy inquired whether there was anything illegal in the vehicle,

which Pirtle denied. Pirtle gave the deputy permission to search the vehicle.

The deputy conducted the vehicle search after having Pirtle and Myers get out of

the car. He found a digital scale in the back seat and a zippered purse in the

front seat. Pirtle admitted he used the scale to weigh drugs but claimed he had

not used the scale “for several years.” The deputy then searched Myers’s purse,

in which he found another digital scale, a hypodermic needle, and a metal spoon

with white methamphetamine residue.         The deputy arrested Myers, who was
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subsequently charged with possession of a controlled substance in violation of

Iowa Code section 124.401(5) (2013).

         Myers moved to suppress the evidence discovered in the purse, asserting

she had not consented to the search and Pirtle’s consent to search the vehicle

did not extend to her purse.      She claimed the search violated her state and

federal constitutional right to be secure against unreasonable searches. The

district court denied the motion, finding the search of the purse was justified by

exigent circumstances. Myers was convicted, and she now appeals.

         II. Standard of Review

         Our review is de novo. See State v. Watts, 801 N.W.2d 845, 850 (Iowa

2011).

         III. Discussion

         Myers raises two issues on appeal. The first is whether the deputy had a

lawful basis to “stop” the vehicle. This claim is not preserved for our review.

Myers claims that she “raised the issue . . . by asking the deputy if it was illegal

for persons to be lost” at the suppression hearing and that “testimony was

presented with regards to whether there was, or was not, probable cause or

reasonable suspicion to approach the vehicle.” However, testimony touching

upon an issue is not sufficient to preserve error for our review. Myers did not

assert this claim in her motion to suppress, and the district court did not address

the issue in its ruling. Myers did not ask the court to rule upon the issue of

whether the deputy needed probable cause or reasonable suspicion to approach

the vehicle after the suppression hearing, at trial, or in a post-trial motion. Issues

must be raised and decided by the district court before we will decide them on
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appeal. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). Myers’s first

claim is therefore not before us.

       Her second claim is that the search of her purse was unconstitutional

because the deputy did not have a warrant and Myers did not consent to the

search. The United States Constitution and the Iowa Constitution both grant

protections against unreasonable searches and seizures.                   See U.S. Const.

amend. IV; Iowa Const. art. I, sec. 8.1 “Searches conducted without a warrant

are per se unreasonable subject only to a few specifically established and well-

delineated exceptions.”        Watts, 801 N.W.2d at 850.              One exception is a

warrantless search “conducted by free and voluntary consent.”                  See State v.

Lowe, 812 N.W.2d 554, 572 (Iowa 2012). Myers’s argument on appeal seeks to

establish that the consent exception to the warrant requirement does not apply in

this case. However, the deputy conceded he had no consent to search the purse

and the district court did not rely on the consent exception in denying the motion

to suppress. Myers’s argument on this issue is therefore inapposite.

       The district court instead relied upon the probable-cause-with-exigent-

circumstances exception to the warrant requirement.2 A warrantless search is


1
  Myers mentions the Iowa Constitution in her appellate brief but does not assert that its
applicability in this case differs from that of the United States Constitution. Our supreme
court recently demonstrated its willingness to interpret the Iowa Constitution differently
than the United States Constitution in regards to the exceptions to the warrant
requirement. See State v. Gaskins, ___ N.W.2d ___, 2015 WL 3958499, at *4 (Iowa
2015). However, in the context of this appeal—in which Myers does not assert the state
and federal constitutions operate in a distinct manner—we apply the federal standard.
See State v. Kern, 831 N.W.2d 149, 174 (Iowa 2013).
2
  The district court’s conclusion—finding that probable cause supported the deputy’s
search—is directly responsive to the State’s argument that the probable-cause-with-
exigent-circumstances exception should apply. Though the district court failed to state in
precise terms that it relied upon the exception, it is clear that the exception is the basis of
the court’s order denying the motion to suppress. Though Myers primarily argues the
                                           5


permissible if the officer has probable cause and “the exigencies of the situation

make the needs of law enforcement so compelling that the warrantless search is

objectively reasonable under the Fourth Amendment.” Watts, 801 N.W.2d at 850

(quoting Mincey v. Arizona, 437 U.S. 385, 393–94 (1978)). “[T]his exception only

applies when coupled with existing probable cause.” Kern, 831 N.W.2d at 174

(citation and internal quotation marks omitted). “The standard for probable cause

is whether a person of reasonable prudence would believe . . . evidence of a

crime might be located in the particular area to be searched.”              Id. (citation

omitted).

       Exigency must be established independent of probable cause. State v.

Naujoks, 637 N.W.2d 101, 108 (Iowa 2001).             “[O]fficers must have specific,

articulable grounds to justify a finding of exigency.” Id. at 109. “The exigent-

circumstances exception includes a situation in which there is a probability that,

unless immediately seized, evidence will be concealed or destroyed.”                  Id.

(citation and internal quotation marks omitted).

       In this case, the deputy had probable cause to search the purse,

particularly after he found the first digital scale, which Pirtle admitted had been

used to weigh drugs.       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.”

State v. Edgington, 487 N.W.2d 675, 678 (Iowa 1992) (citation and internal

quotation marks omitted). The deputy knew Myers and Pirtle had a history of



issue of consent, she also acknowledges and contests the district court’s reliance on the
probable-cause-with-exigent-circumstances exception.
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drug offenses, the two had been exhibiting nervous behavior, and they were

parked in someone’s driveway off of a highway at 12:38 a.m. with no credible

explanation of their presence or destination. The deputy found butane fluid in

plain sight and the digital scale used to weigh drugs during his consensual

search of the vehicle. At that point, the deputy would reasonably have believed

there might be evidence of a crime—i.e. possession of a controlled substance—

somewhere else in the personal possessions of the two individuals in the vehicle.

Our case law supports a finding of probable cause in comparable circumstances.

See Naujoks, 637 N.W.2d at 108 (finding probable cause where apartment

occupants lied to questioning officers and officers saw items in plain view in the

apartment that seemed “out of place” and could potentially have been connected

to a burglary).3 Probable cause gave the deputy the authority to search even a

passenger’s purse; the passenger, Myers, had a diminished expectation of

privacy in the purse she left in the automobile. See Wyoming v. Houghton, 526

U.S. 295, 304 (1999) (“[P]olice officers with probable cause to search a car may

inspect passengers’ belongings found in the car that are capable of concealing

the object of the search.”); State v. Eubanks, 355 N.W.2d 57, 60 (Iowa 1984)

(“Once the patrolman . . . had probable cause to search for contraband, all

containers within the car . . . were fair game for the car search.”).

       The record also demonstrates that there were exigent circumstances of a

particular kind commonly referenced in our case law: evidence found in a car is

inherently mobile and “may never be found again if a warrant must be obtained.”

3
  We note that the court in Naujoks ultimately determined the exigent-circumstances
exception did not apply in that case because, although the officers had probable cause,
there was not a showing of exigency. Naujoks, 637 N.W.2d at 110.
                                            7

See State v. Predka, 555 N.W.2d 202, 207 (Iowa 1996); State v. Holderness, 301

N.W.2d 733, 737 (Iowa 1981); see also Chambers v. Maroney, 399 U.S. 42, 51

(1970); State v. Gillespie, 619 N.W.2d 345, 351 (Iowa 2000); Edgington, 487

N.W.2d at 678; State v. Olsen, 293 N.W.2d 216, 218 (Iowa 1980).4                   If any

evidence the deputy may have found had not been immediately seized, it could

have been easily concealed, destroyed, or otherwise disposed of. See Kern, 831

N.W.2d at 174 (“The exigent-circumstances exception is important to narcotics

investigations because drugs are easily destroyed.”).

       When the deputy searched the purse, he had probable cause to do so,

and exigent circumstances apply to support the search even in absence of a

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

       AFFIRMED.




4
   While this doctrine—a subset of the exigent-circumstances exception called the
“automobile exception”—is the subject of controversy, it nevertheless remains the law
applicable to this case. See Gaskins, ___ N.W.2d at ___, 2015 WL 3958499, at *15
(Cady, J., concurring specially) (criticizing the automobile exception as outmoded in “the
new world of technology”); id. at *41 (Waterman, J., dissenting) (noting our supreme
court has “consistently applied the federal interpretation of the automobile exception”).
While the Gaskins majority considers the search-incident-to-arrest exception to the
warrant requirement in great detail, it does not consider probable-cause-with-exigent-
circumstances exception. See id. at *5 (majority opinion).
