                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0643
                            Filed November 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PAUL LEE DeGROOT,
     Defendant-Appellant.
________________________________________________________________


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

District Associate Judge.



      A defendant appeals his conviction for possession of a controlled

substance, third offense. AFFIRMED.



      Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Heard by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.

       Paul DeGroot appeals his conviction for possession of a controlled

substance, third offense, in violation of Iowa Code section 124.401(5) (2014),

claiming the district court erred in denying his motion to suppress. First of all,

DeGroot cannot assert another person’s constitutional rights. Further, because

DeGroot was not in custody when he admitted he had marijuana and he

voluntarily turned over the drugs to the police, we find no error in the district

court’s denial of the motion and affirm DeGroot’s conviction.

    I. Background Facts and Proceedings

       On November 25, 2014, Tripoli Police Chief Daniel Banks set up a drug

buy with a juvenile. Chief Banks learned from the juvenile that T.D., DeGroot’s

stepson, would be able to get marijuana from his parents and sell it to the

juvenile. Just before the buy, the chief parked his unmarked vehicle where he

observed T.D. take something out of his backpack and put it in his pocket. After

approximately thirty seconds, the chief exited his vehicle and approached the two

boys. There, he observed a small plastic bag containing a green leafy substance

hanging halfway out of T.D.’s pocket. He told T.D. to hand over the bag. T.D.

indicated his parents did not know he took the marijuana from their house, it was

his father’s marijuana, and there was more at home.

       The chief advised T.D. he needed to escort him to city hall and contact his

parents. The chief did not read T.D. his Miranda1 rights and drove him the short



1
  See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (holding a person subject to
custodial interrogation must be advised that “he has a right to remain silent, that any
                                        3


distance to city hall. While the chief was escorting T.D. inside, DeGroot and his

wife drove by and saw their son being escorted into city hall. They stopped and

entered the building. The chief placed T.D. in his office and took DeGroot and

his wife into the nearby city council meeting room to explain the situation. The

chief explained that T.D. was caught attempting to sell marijuana and T.D. had

told the chief the marijuana belonged to DeGroot.       DeGroot responded with

laughter.

      DeGroot initially denied there was more marijuana at his home, but after

the chief explained he would either get a search warrant or DeGroot could

voluntarily handover the marijuana, DeGroot agreed to voluntarily hand it over.

DeGroot then accompanied the chief in the front seat of his patrol car to

DeGroot’s home, which was outside the city limits of Tripoli. During the ride,

DeGroot requested he not be charged with possession as it would be his third

possession charge, and the chief advised DeGroot that he would not charge

DeGroot. When they arrived at the home, DeGroot retrieved the marijuana and

turned it over to the chief. After the chief took possession of the marijuana he

informed the Bremer County Sheriff’s Department of the situation.

      The sheriff decided to pursue the issue, and DeGroot was then charged

with possession of a controlled substance, third or subsequent offense. DeGroot

filed a motion to suppress evidence obtained from his statements, his stepson’s

statements, and stemming from an illegal search of his home. The district court

denied DeGroot’s motion. After a trial on the minutes of evidence, the district

statement he does make may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or appointed”).
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court found DeGroot guilty and sentenced him to 180 days in jail with all but four

days suspended.

       DeGroot appeals.

    II. Scope and Standard of Review

       DeGroot claims the district court should have granted his motion to

suppress, as amended, on federal and state constitutional grounds. Therefore,

our review is de novo. State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).

    III. Stepson’s Statements

       DeGroot asserts the district court should have granted his motion to

suppress because his thirteen-year-old stepson’s Fourth, Fifth, and Fourteenth

Amendment rights were violated. Moreover, DeGroot asserts the chief violated

Iowa Code sections 232.112 and 232.193 by failing to immediately notify him and

his wife that his stepson was taken into custody. Because of these assertions,

DeGroot contends his stepson was interrogated without being advised of his

Miranda rights, and his stepson was not allowed to talk to his parents before

making statements to police. See Iowa Code § 232.19. He asserts his stepson’s

statements and all evidence gathered as a result of those statements must be

suppressed.

       Generally, a party may not assert the rights of others not before the court.

Krull v. Thermogas Co. of Northwood, 522 N.W.2d 607, 614 (Iowa 1994). Fourth



2
   Iowa Code sentence 232.11 provides a child with the right to be represented by
counsel during certain stages of juvenile delinquency proceedings.
3
  Iowa Code sentence 232.19 provides a child may be taken into custody and the person
taking the child into custody shall notify the child’s parent, guardian, or custodian as
soon as possible.
                                               5


and Fifth Amendment rights are personal in nature and may not be asserted

vicariously.    See State v. Graham, 291 N.W.2d 345, 348-49 (Iowa 1980),

superseded on other grounds by Iowa R. Crim. P. 2.11(6)(a), (c) as stated in

State v. Wells, 629 N.W.2d 346 (Iowa 2001); see also State v. Bakker, 262

N.W.2d 538, 544 (Iowa 1978) (“[S]tanding to object to a search belongs only to

the victim of illegal search and seizure.           A litigant cannot invoke an alleged

violation of constitutional rights of third persons.”). Because this is a criminal

prosecution brought against DeGroot, he may only assert alleged violations of his

own constitutional rights, not rights personal to his stepson.                 We conclude

DeGroot lacks standing to challenge the legality of his stepson’s statements, and

we decline to analyze the merits of DeGroot’s claim on this issue or DeGroot’s

claims of statutory violations committed against his stepson.4

    IV. DeGroot’s Statements

       DeGroot next asserts the district court should have granted his motion to

suppress with respect to the statements he made to Chief Banks because his

constitutional rights were violated.         Principally, DeGroot contends he was in



4
  In his reply brief, DeGroot asserts the State has waived the argument that DeGroot
lacks standing to challenge the legality of his stepson’s statements by failing to assert
standing in front of the district court. We disagree that a party can waive standing. Our
supreme court has held certain fundamental issues like subject matter jurisdiction cannot
be waived by the parties failing to challenge it. See Klinge v. Bentien, 725 N.W.2d 13,
15-16 (Iowa 2006) (“The parties themselves cannot confer subject matter jurisdiction on
a court by an act or procedure. Unlike personal jurisdiction, a party cannot waive or vest
by consent subject matter jurisdiction.”). Our supreme court has also held standing is
jurisdictional and can be raised at any time. Schott v. Schott, 744 N.W.2d 85, 88 (Iowa
2008). Because subject matter jurisdiction cannot be waived and because standing is
jurisdictional and can be raised at any time, we conclude the State’s failure to raise the
issue of standing before the district court is not fatal to its ability to challenge standing on
appeal.
                                         6

custody and interrogated without being read his Miranda rights when he was

asked about marijuana in his home.5

       The Supreme Court held that a suspect is in custody after the suspect is

formally arrested or “otherwise deprived of his freedom of action in any significant

way.” Miranda, 384 U.S. at 444. “A custody determination depends on objective

circumstances, not the subjective belief of the officers or the defendant.” State v.

Bogan, 774 N.W.2d 676, 680 (Iowa 2009). “In determining whether a suspect is

in custody at a particular time, we examine the extent of the restraints placed on

the suspect during the interrogation in light of whether a reasonable man in the

suspect’s position would have understood his situation to be one of custody.”

State v. Ortiz, 766 N.W.2d 244, 251 (Iowa 2009). We apply a four-factor test.

State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003). These factors are “the

language used to summon the individual, the purpose, place and manner of the

interrogation, the extent to which the defendant is confronted with evidence of his

guilt, and whether the defendant is free to leave the place of questioning.” State

v. Simmons, 714 N.W.2d 264, 274-75 (Iowa 2006).

       Here, DeGroot was confronted with evidence of his guilt. However, the

chief did not summon DeGroot; instead, DeGroot and his wife happened to be

driving by when the chief escorted DeGroot’s stepson into the city council

building. DeGroot voluntarily entered the station and asked the chief what was

going on. The police station is connected to the city hall, and the chief met with

DeGroot and his wife in the city council meeting room, not a police interrogation

5
  We note that DeGroot does not point to any particular statement which he asserts
should be suppressed but makes only general reference to the “brief interrogation.”
                                        7


room. Although the chief did not let either DeGroot or his wife speak to their son,

the chief did not extensively question either the stepson or DeGroot. The chief

quickly asked DeGroot if his son was correct that there was marijuana at home.

DeGroot responded with a laugh but then confirmed there was additional

marijuana and said he would voluntarily hand it over.

      Additionally, the chief was the only officer to speak with DeGroot, and

DeGroot was never placed in handcuffs. DeGroot was free to leave until the

point in time when he admitted to possessing marijuana at his home. The record

establishes DeGroot was not in custody when he admitted to possessing

marijuana and would voluntarily produce the marijuana. Because DeGroot was

not in custody during the encounter with the chief in city hall, no Miranda warning

was required, and the motion to suppress DeGroot’s admissions was properly

denied.

   V. Consent to Search

      DeGroot next contends his consent to search his home was coerced

through threats of punishment and promises of leniency.

      After DeGroot admitted to having marijuana in his home, the chief advised

DeGroot the police would either obtain a search warrant or he could voluntarily

turn over the marijuana. DeGroot indicated he would voluntarily turn over the

marijuana.   Even though DeGroot testified in the suppression hearing, “[I]t’s

either let somebody tear my house up or voluntarily give it over,” nothing in the

record indicates the chief threatened DeGroot; instead, he provided DeGroot with

options of how he could obtain the evidence following DeGroot’s admission.
                                        8


      Thereafter, as DeGroot rode with the chief in the front seat of the squad

car, he asked whether the chief could let this one go because “he couldn’t afford

another charge.”    The chief responded by indicating he would not pursue

charges. When they reached the house, the chief followed DeGroot into the

living room, where DeGroot retrieved a mason jar of marijuana. No search of the

house was conducted. Afterwards, the chief discussed with DeGroot that he

should turn himself in the next morning to the county sheriff. Because the chief

could not turn a blind eye to the illegal conduct, his only option was to take

possession of the marijuana and notify the country sheriff with the information

regarding DeGroot’s possession of the marijuana.

      As he left the house, the chief joked with DeGroot that “every Thursday,

on the side of the road, give me a glass of water.”         DeGroot asserts this

statement further shows the chief promised leniency.        The record, however,

supports that this statement was made in jest. The chief did not press charges

nor did he advise the Bremer County Sheriff to press charges.          Rather, he

testified he notified the sheriff’s office that DeGroot provided him with marijuana

and he left it up to that office to decide whether to pursue any charge against

DeGroot.

      The record establishes there was no search of DeGroot’s residence.

Further, DeGroot voluntarily offered to produce the marijuana before the chief

stated he would not pursue charges. Accordingly, we find DeGroot voluntarily

agreed to produce the marijuana with no promise of leniency or coercion.

Further, we find DeGroot’s subjective belief that the chief would not charge him

does not preclude another office, in this case the sheriff’s office, from pursuing
                                           9


charges. Therefore, DeGroot’s will was not overborne, and his capacity for self-

determination was not critically impaired. See State v. Nolan, 390 N.W.2d 137,

142 (Iowa Ct. App. 1986). The totality of the circumstances reveals the absence

of any coercion and demonstrates that DeGroot’s production of marijuana was

voluntary.   Therefore, the district court properly denied DeGroot’s motion to

suppress the marijuana evidence.

   VI. Fruit of the Poisonous Tree

       Finally, DeGroot asserts that all evidence obtained through his or his

stepson’s statements and his turning over the marijuana should be suppressed

because all evidence was obtained as fruit of the poisonous tree.

       The phrase “fruit of the poisonous tree” refers to indirect or secondary

evidence obtained as a result of a prior illegality. See Nardone v. United States,

308 U.S. 338, 341 (1939). Under the doctrine, the “fruits” that resulted from the

prior illegality are excluded if they were an exploitation of that prior illegality. See

Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). Thus, the doctrine

operates as an extension of the exclusionary rule. State v. Lane, 726 N.W.2d

371, 380 (Iowa 2007).

       Since DeGroot could not assert a violation of his stepson’s constitutional

rights, he cannot challenge, in his own motion to suppress, evidence obtained

from his stepson’s statements.        Further, evidence obtained from DeGroot’s

noncustodial, voluntary statements, as well as his voluntary production of

marijuana, was obtained legally. Therefore, none of the evidence was “fruit of

the poisonous tree.”
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   VII. Conclusion

       Because DeGroot was not in custody when he admitted to possessing

marijuana, he voluntarily turned over the marijuana, he lacks standing to assert

the constitutional rights of his stepson, and the fruit-of-the-poisonous-tree

doctrine is inapplicable, the district court properly overruled DeGroot’s motion to

suppress, and we affirm.

       AFFIRMED.
