                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1183
                            Filed December 20, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LAMONT MONTEE WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Paul G. Crawford,

District Associate Judge.



      A defendant appeals convictions for possession of marijuana; failure to affix

a drug tax stamp; possession of cocaine, third or subsequent offense; and

possession of hydrocodone, third or subsequent offense. AFFIRMED.



      Andrew J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames, for

appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                          2


POTTERFIELD, Judge.

       Lamont Montee Williams appeals from his convictions for possession of

marijuana; failure to affix a drug tax stamp; possession of cocaine; third or

subsequent offense; and possession of hydrocodone, third or subsequent offense.

Williams maintains the district court should have granted his motion to suppress

evidence because the search-warrant application did not provide sufficient basis

to support probable cause and the required nexus between the items sought

pursuant to the warrant and the people or places searched.

   I. Background Facts and Proceedings.

       On November 9, 2015, Ames Police officers responded to a call from

Sandra Fairbanks reporting a broken window at her residence. While discussing

the incident with Fairbanks at the front door to her residence, Officer Vincent Junior

reported he could smell marijuana and see a hazy smoke inside the residence.

After entering the residence with Fairbanks’ consent, Officer Junior conducted a

protective sweep, handcuffed the occupants of the residence—including Williams,

Fairbanks, and a third adult—and applied for a search warrant. A warrant was

issued to search the Fairbanks residence and the three individuals, including

Williams, found there by the officers. In executing the search pursuant to the

warrant, officers found $1240 in cash and a key to the apartment in Williams’s

pockets. In a bedroom, officers found marijuana, white powder later identified as

cocaine, and a prescription bottle with two hydrocodone pills. Mail with Williams’s

name and male clothing were also found in the bedroom.



   II. Standard of Review.
                                         3


       Because this case involves the constitutional right to be free from

unreasonable searches and seizures, our review of the district court’s suppression

ruling is de novo. See State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004). To

determine whether probable cause has been established for the issuance of a

search warrant, we review the totality of the circumstances. Id. We do not make

an independent determination of probable cause but determine whether the

issuing judge had a substantial basis for concluding probable cause existed. Id.

We examine only the information actually presented to the court at the time of the

application for the warrant. Id.

   III. Discussion.

          a. Probable Cause.

       The Iowa 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).

Williams argues the warrant application did not demonstrate Officer Junior was

qualified to recognize the odor of marijuana. Officer Junior’s warrant application

asserts there were illegal narcotics in the residence because he could “smell the

odor of raw or burnt marijuana” from outside the residence. Williams claims Officer

Junior’s inability to differentiate between raw or burnt marijuana casts doubt as to

his ability to recognize marijuana in any form.

       Officer Junior’s warrant application includes his qualifications in drug

recognition: he had been a police officer for three years, had been involved with

illegal drug investigations, attended classes at the Midwest Counter Drug Training

Center, and had held conversations with cooperative suspects and informants
                                         4


“about illegal drugs, their use, and distribution.” Williams argues the application

did not specifically include training for marijuana recognition or the smell of

marijuana. Williams compares Officer Junior’s qualifications to the qualifications

of the officer in Watts, who had been a “Davenport police officer for seven-and-a-

half years, had been involved in the investigation of controlled substance offenses

for the past two years, and had attended schools pertaining to the investigation of

controlled substance offenses.” Id. at 855. That officer was found qualified to

detect the odor of marijuana. Officer Junior, although having less time on the job

than the officer in Watts, has very similar qualifications. All reasonable inferences

should be drawn in support of finding a probable cause for the search warrant.

State v. McNeal, 867 N.W.2d 91, 100 (Iowa 2015). Officer Junior’s qualifications

as set forth in the search warrant application are sufficient to establish probable

cause in his identification of the odors coming from the residence.

          b. Nexus.

       Williams next argues there is a lack of nexus between several items

included on the search warrant and the facts contained in the search warrant

application.

              Although a nexus must be established between the items to
       be seized and the place to be searched, direct observation is not
       required. That nexus can be found by considering the type of crime,
       the nature of the items involved, the extent of the defendant’s
       opportunity for concealment, and the normal inferences as to where
       the defendant would be likely to conceal the items.

State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982) (internal citations omitted).

       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.’ We draw all
       reasonable inferences to support the judge’s finding of probable
                                          5


       cause and give great deference to the judge’s finding. Close cases
       are decided in favor of upholding the validity of the warrant.

McNeal, 867 N.W.2d at 100 (internal citations omitted).

       In an action involving a structural challenge to the validity of a warrant, the

burden of proof rests with the defendant. State v. Fremont, 749 N.W.2d 234, 236

(Iowa 2008).

       Williams argues methamphetamine, cocaine, and opiates and its

derivatives were included in the warrant as items to be seized without a basis in

the application to believe they would be located at the residence or on the persons

named.    Officers seized white powder, later identified as cocaine, and a

prescription bottle with two hydrocodone pills.       Even if the search warrant

application does not draw a nexus to these particular illegal drugs, they would have

been discovered inevitably during the search for marijuana. Both the hydrocodone

pills and the cocaine were found in places where marijuana could have been

hidden.     The    inevitable-discovery   doctrine    allows   evidence    otherwise

constitutionally excluded to be admitted when the police would have inevitably

discovered the same evidence if acting properly. State v. Tyler, 867 N.W.2d 136,

171 (Iowa 2015).

       Officers found identification and mail addressed to Williams in the bedroom

where the drugs were found and a key to the apartment in Williams’s pocket. The

warrant allowed officers to search for: “evidence of occupancy, residency, and or

ownership of the premises described above, including but not limited to utility and

telephone bills, sealed envelopes, keys, lease agreements, mortgage records,

loan documents, passports, photographs, and/or keys relating to safety deposit
                                          6


boxes.” Williams argues there is no credible connection between these items and

the residence or people named in the application. Williams also argues there is

no indication as to how items in this category constitute evidence of a crime of any

type. We agree with the district court that because three people were present at

the residence it would be important to determine who was in actual or constructive

possession of the controlled substances that might be and later were found. See

State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (noting the State must

establish the defendant “exercised dominion and control over the contraband, had

knowledge of the contraband’s presence, and had knowledge the material was a

narcotic.”). A nexus exists between evidence of residency and the facts contained

in the search warrant application.

       Officers found $1240 in cash in Williams’s pocket. The search warrant

authorized the seizure of “United States currency, food stamps and/or any other

means of exchange commonly used in drug transactions.” Williams argues there

is no nexus between the facts contained on the warrant application, which do not

indicate a suspicion of drug dealing, and searching for currency. He also argues

there is no indication as to how items in this category constitute evidence of a crime

of any type. We do not reach Williams’s arguments regarding whether a nexus

exists because the currency would have inevitably been discovered in a search

incident to Williams’s arrest.

       As noted above, the inevitable-discovery doctrine allows evidence gathered

despite Fourth Amendment violations to be admissible when the police would have

inevitably discovered the same evidence acting properly. Tyler, 867 N.W.2d at

171. Williams was arrested following the execution of the warrant. A search
                                         7


incident to arrest would have been performed, which would have yielded the

currency found. A search incident to arrest allows a police officer “to search a

lawfully arrested individual’s person and the immediately surrounding area without

a warrant.” State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citations

omitted).

       Williams also argues there is no credible connection between the following

categories of property listed in the search warrant and the residence or people

named, or any indication as to how items in these categories constitute evidence

of a crime of any type:

              1. Any and all paraphernalia, instrumentalities, substances,
       scales or documents which are evidence of the illicit possession, use,
       dealing, or distribution in controlled substances.
              2. Addresses and/or telephone books, papers, cell phones,
       electronic records and photographs including names, address, and
       telephone numbers, of potential customers or associates of the
       occupants or residents of the above premises.
              3. Books, records (written or electronic), receipts, bank
       statements and records, money drafts, letters of credit, money
       orders, cashier’s checks, passbooks, and bank checks.

No such items were found; none were offered into evidence; there is nothing

described in those paragraphs to be suppressed. “The appropriate remedy for [a

Fourth Amendment] violation is suppression of all evidence directly or indirectly

gathered through the search.” State v. Grant, 614 N.W.2d 848, 855 (Iowa Ct. App.

2000). Because there was no evidence found, there is no evidence to suppress.

We do not address the issue of whether there is a nexus between these items

listed and the warrant application because Williams has no available remedy.

   IV. Conclusion.
                                         8


       The district court properly denied Williams’s motion to suppress.

Reasonable inferences could be drawn to conclude Officer Junior was qualified to

detect the odor or marijuana, supporting a finding of probable cause.       The

hydrocodone pills and cocaine would have inevitably been discovered during the

search for marijuana, as would the $1240 in a search incident to arrest. A nexus

exists between documentation of residency and property to be seized. We affirm

the district court’s denial of Williams’s motion to suppress evidence.

       AFFIRMED.
