                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0705
                                  Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LYDELL JEROME STEWART,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Nathan A.

Callahan, District Associate Judge.



      A defendant appeals his conviction asserting the district court erred in

denying his motion to suppress evidence. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Lydell Stewart was found guilty, following a bench trial on the minutes of

evidence, of possession of a controlled substance, marijuana. On appeal, he

claims the district court erred in denying his motion to suppress evidence

discovered during the warrantless search of the vehicle he was driving because

the police officer lacked probable cause. Because we agree with the district court

that the automobile exception applies to this set of facts, we affirm the district

court’s denial of Stewart’s motion to suppress.

       On April 7, 2016, a Black Hawk County Sheriff’s Deputy pulled over Stewart

for a broken taillight. Stewart was driving his girlfriend’s vehicle. As the deputy

approached the vehicle, Stewart rolled down the driver’s side window, and the

deputy smelled a “very strong” odor of marijuana coming from inside the vehicle.

During the deputy’s twelve years with the Sheriff’s office, he had extensive

experience detecting the smell of marijuana and estimated he encountered the

smell almost daily. The deputy also noticed Stewart had bloodshot and watery

eyes. The deputy then asked Stewart about the odor, and Stewart admitted to

smoking marijuana earlier but not while he was in the vehicle. The deputy called

for backup; while one officer stood with Stewart between the stopped vehicle and

the deputy’s vehicle, another sheriff’s deputy approached the passenger window

of the stopped vehicle and detected a “faint” odor of marijuana coming from the

vehicle.

       The deputy performed a pat-down search of Stewart, but he did not locate

anything illegal. Stewart maintained he did not smoke in the vehicle, but the deputy

performed a search of the vehicle. The deputy believed he located a marijuana
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cigarette or blunt—approximately two to three inches long—and possibly some

used marijuana cigarettes, or “roaches,” in the center console area. The backup

deputy smelled the cigarette or blunt and also believed it contained marijuana.

       Stewart filed a motion to suppress the marijuana found during the vehicle

search. After a hearing, the district court denied the motion. Stewart waived his

right to a jury trial, and stipulated to the minutes of evidence. The court found

Stewart guilty and sentenced him to 180 days in jail—all but thirty days

suspended—and placed him on probation. He appeals, contesting the district

court’s denial of his motion to suppress.

       Warrantless searches are per se unreasonable unless they fall within the

carefully drawn exceptions to the warrant requirement. State v. Gaskins, 866

N.W.2d 1, 7 (Iowa 2015).1 One of those exceptions is probable cause coupled

with exigent circumstances, which is termed the automobile exception when

applied to motor vehicles. Storm, 898 N.W.2d at 145. Stewart contends the

marijuana smell, noticed by both deputies, emanating from his vehicle does not

provide probable cause to search the vehicle because it was possible the odor

came from another source—Stewart’s clothing from smoking earlier. Moreover,

Stewart asserts the deputy lacked probable cause because the deputy did not find

any marijuana on him during the pat-down search and because he cooperated by

admitting he had smoked marijuana earlier.



1
  Stewart asserts we should find “the Iowa Constitution requires more than the smell of
marijuana alone to constitute probable cause to search.” We decline to extend beyond
what our supreme court has articulated as the standard applicable in Iowa. See State v.
Storm, 898 N.W.2d 140, 142 (Iowa 2017) (electing to retain the automobile exception);
see also State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at
liberty to overturn Iowa Supreme Court precedent.”).
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       In addressing the smell of marijuana supporting a vehicle search, our

supreme court has held “a trained officer’s detection of a sufficiently distinctive

odor, by itself or when accompanied by other facts, may establish probable cause.”

State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011); accord State v. Eubanks, 355

N.W.2d 57, 59 (Iowa 1984) (holding probable cause existed after patrolman

smelled marijuana drifting from the car when defendant was seated behind the

steering wheel). Therefore, despite Stewart’s argument that the deputy lacked

probable cause because he had no reason to think Stewart was lying and the odor

could have come from Stewart’s clothing, the deputy had probable cause to search

the vehicle. The deputy testified that Stewart had bloodshot, watery eyes and

admitted to smoking marijuana. In addition, the deputy testified that he detected

the odor of marijuana emanating from Stewart’s vehicle, which was sufficient, by

itself, to provide the probable cause to search the vehicle.

       AFFIRMED.




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