                     IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1376
                              Filed January 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID JOSEPH MOFFITT,
     Defendant-Appellant.
________________________________________________________________

        Appeal from the Iowa District Court for Polk County, David L. Christensen

(motion to suppress) and Richard G. Blane II (trial), Judges.



        Defendant appeals his convictions for first-degree murder and first-degree

burglary. AFFIRMED.




        J. Keith Rigg, Des Moines, for appellant.

        Thomas J. Miller, Attorney General, and Darrell Mullins, Assistant Attorney

General, for appellee.




        Heard by Potterfield, P.J., and Doyle and Bower, JJ. Blane, S.J., takes no

part.
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BOWER, Judge.

       David Moffitt appeals his convictions for first-degree murder and first-

degree burglary. We find the district court properly denied Moffitt’s motion to

suppress, based on his claim the applications for search warrants for his home,

including computers and cell phone, were not supported by probable cause. We

affirm Moffitt’s convictions.

       I.     Background Facts & Proceedings

       Moffitt was charged with murder in the first degree, in violation of Iowa

Code section 707.2 (2013) and burglary in the first degree, in violation of section

713.3. The State alleged Moffitt broke into the home of Justin Michael on May 8,

2014, and fatally shot him.

       The State applied for a warrant to search Moffitt’s home. The following

information was included in an affidavit attached to the search warrant

application. Michael was fatally shot in the head at his home in Grimes shortly

before 3:30 a.m. on May 8, 2014. Michael’s mother, Marie Michael, who had

been visiting, stated a subject wearing all dark clothing came into her room and

shone a “red laser” type light on her. The subject left her room and seconds later

she heard gunshots. Officers found .9mm TulAmmo shell casings at the scene.

       Angela VerHuel, who was the victim’s fiancé, stated she previously had a

sexual relationship with Moffitt from March to June 2013.         She ended the

relationship with Moffitt when she began her relationship with Michael. VerHuel

stated “Moffitt was very angry and upset and sent her a few vulgar texts but

nothing threatening. One of those texts indicated he was not ready to let her go.”
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In August 2013, VerHuel learned Moffitt was working in the same department at

Wells Fargo as Michael.         She later learned Moffitt was let go from his

employment.

       At about 4:00 a.m., an off-duty Boone police officer observed a car in the

ditch by Highway 141 near Granger and stopped to render assistance. A person,

who identified himself as Dave, stated he needed a ride. Dave was not wearing

a shirt when the officer stopped; Dave first put on a black shirt, then took it off

and put on a white shirt. Dave placed the black shirt in a black case and put the

case in the trunk of his vehicle. The officer called dispatch, then left. A Polk

County deputy arrived shortly thereafter.      The deputy determined Dave was

David Moffitt, the vehicle was registered to him, and he resided in Pleasant Hill.

At that time, Moffitt was wearing all white clothes and particles from weeds were

clinging to his clothing. Moffitt stated he left his cell phone at home. The deputy

issued several citations and assisted Moffitt to call a cab to take him home.

Moffitt took a cab to Pleasant Hill.

       Officers searched the area near where Moffitt’s car was located. They

found a box containing new earmuffs of a type used by those shooting firearms;

an Amazon Kindle, which had “Grimes” typed in the search bar; a receipt dated

March 14, 2014, in the name of Wegener;1 and two magazines containing .9 mm

TulAmmo ammunition. A search of Moffitt’s vehicle did not reveal the black shirt

or the black case he put the shirt into.



1
  Later evidence showed Moffitt purchased the firearm used in the shooting under the
name “Andy Wegener.” Wegener, who was a former boyfriend of VerHuel, was not
involved in the purchase of the firearm.
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       A judge granted the search warrant application. The State executed the

search warrant for Moffitt’s home and several items were seized.          A second

search warrant was obtained for a different location. The State sought a third

search warrant, stating it had not seized the computers or cell phones at Moffitt’s

residence. This application was approved as well. During the execution of the

third search warrant, officers observed a red storage tub without a lid, which they

believed contained items related to the crime.           A fourth search warrant

application sought to search Moffitt’s home for these items, which included a gun

scope, a laser scope, and .9 mm TulAmmo shell casings. A fifth application

sought to search the Facebook accounts of several people associated with the

homicide.

       Moffitt filed a motion to suppress, claiming the first and third applications

did not provide probable cause for the search warrants, as they did not provide a

nexus between the alleged criminal activity, the items sought to be seized, and

the place to be searched. The district court denied the motion to suppress. After

a jury trial, Moffitt was convicted of first-degree murder and first-degree burglary.

He now appeals.

       II.    Search Warrants

       Moffitt’s motion to suppress claimed there was no probable cause for the

issuance of the search warrants for his home, and in particular, he claimed there

was no probable cause for the search of his computers or cell phone. He stated

there was not a nexus between the criminal activity, the things to be seized, and

the place to be searched.      He stated because the first search warrant was
                                         5


improper, the subsequent search warrants, which were based on information

obtained in executing the first search warrant, were also improper. He requests

the suppression of items seized from his home, including information obtained

from his computers and cell phone.

       The Fourth Amendment provides search warrants should be issued, “upon

probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.” U.S. Const.

amend. IV; see also Iowa Const. art. I, § 8; Iowa Code § 808.4. In general, we

review claims of a constitutional dimension de novo, considering the totality of

the circumstances. State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015). When

addressing a challenge to a finding there was probable cause to support a

search warrant, “[h]owever, we 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.’” Id. (quoting State v.

Gogg, 561 N.W.2d 360, 363 (Iowa 1997)). “In so doing, we examine only the

information actually presented to the judge.” Id.

       The Iowa Supreme Court has set out the following guidelines:

              “In determining if evidence seized pursuant to a warrant
       should be suppressed, ‘the affidavit of probable cause is interpreted
       in a common sense, rather than a hypertechnical, manner.’” “[W]e
       draw all reasonable inferences to support the judge’s finding of
       probable cause and give great deference to the judge’s finding.”
       “Close cases are decided in favor of upholding the validity of the
       warrant.” In assessing whether a substantial basis existed to find
       probable cause, we are “‘limited to consideration of only that
       information, reduced to writing, which was actually presented to the
       [judge] at the time the application for warrant was made.’”

Id. at 100 (citations omitted).
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       The court has also stated:

       The test for probable cause is well established: “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.” 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. In doing so, the judge may rely on “reasonable,
       common sense inferences” from the information presented.

Gogg, 561 N.W.2d at 363 (citations omitted). “A probable cause finding rests on

a nexus between the criminal activity, the place to be searched, and the items to

be seized.” State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006).

       We consider only the information presented to the judge at the time of the

search warrant application.     McNeal, 867 N.W.2d at 99.         Therefore, we will

discuss only the information found in the applications and attachments to the

applications signed by Deputy Robyn Bartholomew of the Polk County Sheriff’s

Office, as set out above.

       A.     The first search warrant application sought to search Moffitt’s home

for firearms and accessories and dark clothing, blood-stained clothing, or white

clothing.   A judge approved the application, stating, “I find the information

contained in the application and attachments establishes probable cause to

believe the items listed are located in the places indicated and that the

information justifies the issuance of a search warrant and, therefore, I do issue a

search warrant.”
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       In ruling on Moffitt’s motion to suppress, the district court found there was

probable cause for the first warrant because Moffitt was connected to the murder

scene, as about thirty minutes after the offense he was found near Granger and

he had a prior relationship with VerHuel. The court noted an officer observed

Moffitt put on a black shirt, take off the black shirt and put on a white shirt, then

place the black shirt in a black case, which he put in the trunk of his vehicle.

Moffitt subsequently returned to his home. The court concluded, “there was a fair

probability that evidence from the murder would be located” at Moffitt’s home in

Pleasant Hill. The court noted the black case was not found in Moffitt’s car and

there was a reasonable inference he took it with him to his home.

       Moffitt points out the attachment to the search warrant application does

not specifically state Moffitt took anything with him when he took a cab to his

home. The attachment does not address whether the deputy sheriff or the cab

driver who were present observed Moffitt take any items with him in the cab. 2

The court noted an officer observed Moffitt placing a black shirt in a black case,

then placing the case in the trunk of his vehicle. When officers later looked in the

vehicle, however, they did not find the case or the shirt.             The court made

“‘reasonable, common sense inferences’ from the information presented,” Moffitt

might have taken the black case, or other items connected with the crimes, with

him to his home.3 See Gogg, 561 N.W.2d at 363 (citation omitted).


2
  Moffitt notes during the criminal trial both the deputy and the cab driver testified they
did not observe Moffitt taking anything with him in the cab. Of course, we must rely only
on the information available to the judge at the time the search warrant was granted, not
evidence arising during the course of the criminal trial. See McNeal, 867 N.W.2d at 99.
3
  Although not mentioned by the district court, we note the search warrant application
sought Moffitt’s white clothing, as well as his dark clothing. The application notes the
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       In addition, evidence connects Moffitt to the offense. Moffitt previously

had a romantic relationship with VerHuel and was upset when she broke up with

him and began dating Michael. Moffitt told VerHuel he was not ready to let her

go. About thirty minutes after Michael was shot, Moffitt drove his vehicle into a

ditch not too far from Grimes. Items related to the shooting, including .9 mm

TulAmmo ammunition, which matched shell casings found at the scene of the

homicide, were found near where Moffitt crashed his vehicle.

       After drawing all reasonable inferences to support the judge’s finding of

probable cause, we determine the issuing judge had a substantial basis for

concluding there was probable cause to search Moffitt’s home for the items listed

in the first search warrant application. See McNeal, 867 N.W.2d at 100.

       B.     Moffitt claims the district court should have suppressed the

evidence found on his cell phone and computers because the search warrant

applications did not provide probable cause for the search and seizure of these

items. He states there is insufficient evidence in the search warrant application

to show there were computers at his home, or if there were computers, that they

contained information relevant to the homicide.

       The first search warrant application sought computers or cell phones

connected to Moffitt “in reference to any and all information relating to the

purchase or possession of guns, gun accessories, or gun ammunition,” as well

as information about VerHuel, Michael, Michael’s home, or the surrounding area

white clothing worn by Moffitt had weed particles attached and he wore the white clothes
when he went to his home. It is possible officers could have connected the white
clothing and the weed particles to the area where the ammunition and other items
pertaining to the homicide were found. This is an additional element connecting the
homicide, Moffitt’s home, and the clothing located there.
                                         9


and related data from cell phones and computers.           The attachment to the

application stated, “This affiant knows from training and experience that cell

phones, computers and digital devices often contain GPS information,

photographs, internet search history, contacts and other information that could be

relevant to this investigation.”

       Although the first search warrant permitted the seizure of computers, no

computers were taken from Moffitt’s home during the execution of the warrant. A

third search warrant application was prepared, which contained all of the

information in the first application, except the statement about the affiant’s

knowledge about cell phones, computers, and digital devices.              The third

application included the additional information two computers had been observed

during the execution of the first search warrant. The third application sought to

search Moffitt’s home for computers and cell phones. A judge approved the third

application, and Moffitt’s computers were seized.

       The district court found there was probable cause in the first application to

support a search warrant for computers and cell phones at Moffitt’s home. The

court found:

       [T]here was evidence that [Moffitt] used electronic devices to
       perform research for the murder of Mr. Michael. Again an Amazon
       Kindle which had Grimes typed into the search bar was found in the
       area that Mr. Moffitt drove his car into a ditch and the victim’s house
       was located in Grimes. From this a reasonable inference can be
       made that Mr. Moffitt used electronics to perform research
       necessary for the murder. Therefore, there is a fair probability that
       evidence of the crime was on other electronics owned by Mr.
       Moffitt.
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(Citation omitted).   The court found Moffitt’s arguments concerning the third

search warrant application mirrored his arguments concerning the first

application, and the court determined there was probable cause for the same

reasons.

      We determine the issuing judge had a substantial basis for concluding

probable cause existed to search Moffitt’s home for computers and cell phones.

As noted in the district court’s ruling on the motion to suppress, an electronic

device—an Amazon Kindle—was found near where Moffitt drove his car into the

ditch. This electronic device had the term, “Grimes,” typed in the search bar,

which was where the homicide occurred.         The judge made a reasonable,

common-sense inference Moffitt’s home might contain computers or other

electronic devices containing information relevant to the homicide. “[W]e draw all

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

great deference to the judge’s finding.”    Gogg, 561 N.W.2d at 364 (citations

omitted).

      The district court did not separately address Moffitt’s cell phone, but we

note the search warrant applications stated Moffitt told a deputy he left his cell

phone at home. There was also information in the application “Moffitt was very

angry and upset and sent [VerHuel] a few vulgar texts but nothing threatening.

One of those texts indicated he was not ready to let her go.” Thus, there was

probable cause to search Moffitt’s home for his cell phone in order to retrieve

information about his text messages with VerHuel, which may have been

relevant to the homicide.
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      We determine the district court properly denied Moffitt’s motion to

suppress. We affirm his convictions for first-degree murder and second-degree

burglary.

      AFFIRMED.
