                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1898
                             Filed January 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICOLE J. LACEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.



      Nicole Lacey appeals from the judgment and sentence entered following

her conviction of third-degree burglary. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Michael J. Walton, County Attorney, and Alan Havercamp, Assistant

County Attorney, for appellee.



      Considered by Mullins, P.J., Bower, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, S.J.

      Nicole Lacey appeals from the judgment and sentence entered following

her conviction of third-degree burglary. She contends the district court erred in

denying her motion to suppress evidence discovered during a warrantless search

of her cell phone data.     Because we conclude the evidence discovered on

Lacey’s cell phone was obtained in violation of the Fourth Amendment of the

United States Constitution, we reverse and remand for further proceedings.

      I. Background Facts and Proceedings.

      During the early morning hours of March 21, 2010, the Davenport Police

Department received a report regarding two individuals wearing dark clothing and

backpacks who were checking door handles of parked vehicles. One of the

individuals was described as “a possible W/F, small ponytail, hair wrapped in a

bun type style.” Sergeant Alaric Welke observed two individuals matching that

description near a mini-van with an open door; one was leaning into the vehicle

across the console and the other appeared to be acting as a lookout.         The

“lookout” was wearing a brown hooded jacket with fur around the hood and a

blue backpack. As Sergeant Welke approached, the “lookout” alerted the other

individual to his presence, and the pair ran. Sergeant Welke gave chase and

noticed the “lookout” appeared to be female with a small ponytail. A short time

later, Officer Gina Johnson observed a woman wearing a dark coat with fur

around the hood and her hair pulled up into a short ponytail or bun style.

      Officer Dion Perkins encountered Lacey in the area the “lookout” was

seen running. Although the temperature was near twenty degrees, Lacey was
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wearing a black t-shirt without a coat. Her hair was in a ponytail. Lacey claimed

she had taken a walk because she was bored and had nothing to do.

       A brown coat with a fur-lined hood was retrieved hanging from a fence

nearby. Footprints matching those left by one of the suspects Sergeant Welke

chased led directly to the coat. Lacey’s shoeprints matched those footprints.

       Lacey was given a Miranda warning and taken into custody. While Lacey

was seated in an officer’s car, her cell phone rang several times.            Officer

Johnson looked through Lacey’s cell phone and found a number of calls from a

contact labeled as “Hot Cakes Hubby ICE.” The officer also discovered a text

message sent hours earlier from Lacey to “Hot Cakes Hubby ICE,” which read:

“let’s go out and steal from cars tonight, because we need the money, and baby

there is nothing else to do.”

       On April 16, 2010, the State charged Lacey with third-degree burglary.

Lacey moved to suppress the evidence discovered during Officer Johnson’s

search of the cell phone. The district court denied the motion following a hearing.

Lacey then agreed to a bench trial based on the minutes of testimony. She was

found guilty of third-degree burglary and was granted deferred judgment, which

was later revoked.

       II. Scope of Review.

       We review the district court’s ruling on the motion to suppress de novo.

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). We therefore conduct “an

independent evaluation of the totality of the circumstances as shown by the

entire record.” Id. Although we give deference to the district court’s fact findings,

especially concerning witness credibility, we are not bound by them. Id.
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       III. Analysis.

       Lacey contends the district court erred in denying her motion to suppress.

She argues the warrantless search of her cell phone was unconstitutional

because it does not fall under either of the exceptions urged by the State at the

suppression hearing.

       The Fourth Amendment of the United States Constitution protects

individuals against “unreasonable searches and seizures.” State v. Naujoks, 637

N.W.2d 101, 107 (Iowa 2001). Whether a search and seizure is unreasonable

depends on the facts of each case.           Id.   A warrantless search is per se

unreasonable unless it falls within one of the exceptions to the warrant

requirement, and the State has the burden of proving by a preponderance of the

evidence the warrantless search falls within one of these exceptions. Id. at 107-

08.

       The State argued the search of Lacey’s cell phone was both a search

incident to lawful arrest and a search based on probable cause and exigent

circumstances.     See id. at 107 (listing four exceptions to the warrant

requirement). The State now concedes the Supreme Court’s holding in Riley v.

California, decided after the district court’s ruling in this case, prevents

application of the search-incident-to-arrest exception to the search of Lacey’s cell

phone. 134 S. Ct. 2473, 2485-93 (2014) (declining to extend the exception to

searches of data on cell phones). We instead focus on the question of whether

the search falls within the exigent-circumstances exception. Id. at 2494 (noting

an exception may apply where exigent circumstances make the needs of law
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enforcement so compelling a warrantless search of a cell phone is objectively

reasonable).

       A warrantless search is reasonable where there is probable cause to

believe a crime has been committed or evidence of a crime might be located in

the particular area to be searched, and exigent circumstances exist. Naujoks,

637 N.W.2d at 108. “‘Exigent circumstances sufficient to justify a search and

seizure without a warrant usually include danger of violence and injury to the

officers or others; risk of the subject’s escape; or the probability that, unless

taken on the spot, evidence will be concealed or destroyed.’” State v. Watts, 801

N.W.2d 845, 851 (Iowa 2011) (quoting State v. Jackson, 210 N.W.2d 537, 540

(Iowa 1973)).   Exigent circumstances must be shown by specific, articulable

facts. Id.

       No exigent circumstances justify the search of Lacey’s cell phone data.

Lacey was in police custody at the time of the search, so there was no risk of

escape. There is nothing to show Lacey presented a danger of violence or injury

to the officers or the phone and its data posed a safety risk. Nor has the State

provided a basis by which a reasonable person would believe the data on the

phone would be destroyed before police could obtain a warrant.         The State

argues exigent circumstances existed because the officers did not know the

motives of the second suspect, who was still at large and who may have

attempted to destroy evidence or presented a danger of violence and injury. This

argument, however, is not based upon specific, articulable facts necessary to

justify the intrusion into Lacey’s privacy. Because the search does not fall under

one of the recognized exceptions to the warrant requirement in violation of the
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Fourth Amendment, the district court erred in denying the motion to suppress the

evidence stemming from that search.

       The State argues any error in denying the motion to suppress is harmless

error because the other evidence of Lacey’s guilt is overwhelming. “Before a

federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.” Chapman v.

California, 386 U.S. 18, 24 (1967). In making this determination, the question “‘is

not whether, in a trial that occurred without the error, a guilty verdict would surely

have been rendered but whether the guilty verdict actually rendered in this trial

was surely unattributable to the error.’” State v. Hensley, 534 N.W.2d 379, 383

(Iowa 1995) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).

       The text message obtained from the cell phone was particularly damning,

and we are unable to find the guilty verdict “was surely unattributable” to the

district court’s error in denying the motion to suppress. Accordingly, we reverse

the judgment and sentence, and remand the case for retrial without the evidence

obtained from the cell phone.

       REVERSED AND REMANDED.
