Opinion
No. 5-443 / 04-1272
Filed July 13, 2005
Appeal from the Iowa District Court for TamaCounty, Carl D. Baker (motion to suppress) and Thomas L. Koehler (sentencing), Judges.
Lisa Fagerlind appeals from her conviction for possession of a controlled substance (methamphetamine) as a second offense. AFFIRMED; SENTENCE VACATED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Brent D. Heeren, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Lisa Fagerlind appeals from her conviction for possession of a controlled substance (methamphetamine) as a second offense. She contends the court erred in failing to grant her motion to suppress evidence obtained as a result of the stop of a vehicle in which she was a passenger. She also claims she was denied her right of allocution prior to sentencing. We affirm and remand.
Background Facts and Proceedings.
A reasonable fact finder could have found the following from the evidence introduced at trial. In the early morning hours of February 29, 2004, Officer Joe Quandt was at a convenience store when a female, later identified to be Fagerlind, entered the store and purchased cigarettes. Quandt smelled the odor of burnt marijuana on Fagerlind, and noted that she appeared to be in a hurry and nervous. Fagerlind left the store and departed the area in a small brown vehicle.
Quandt returned to his patrol car and requested information on the vehicle's registration. He learned the owner, Nancy Spooner, had a drug conviction. Quandt then pursued the vehicle and stopped it. Upon approaching the vehicle, he again smelled the odor of burnt marijuana, and consequently asked Fagerlind, Spooner, and a third passenger to exit the vehicle. Quandt sought and obtained Spooner's consent to search the vehicle. During the subsequent search, Quandt found a marijuana cigarette on the floorboard near where the third passenger had been sitting. As a result of the search, Fagerlind, Spooner, and the other passenger were arrested. When Fagerlind was placed in the patrol car, the arresting officers witnessed her rummaging through her purse. Deputy Dino Baldazo seized the purse, searched it, and discovered a small bag that contained methamphetamine.
The State charged Fagerlind with possession of a controlled substance, second offense, and prohibited acts. Following a bench trial on the minutes of testimony, the court found her guilty and sentenced her to serve sixty days in the county jail with all but two days suspended. Fagerlind appeals, contending the court erred in failing to grant her motion to dismiss because the stop of the car and the consequent search of her purse were in violation of the Fourth Amendment. She also claims she was not granted her right of allocution.
The prohibited acts charge was later dismissed.
Because we agree with the State that this issue has been adequately preserved for our review, we do not address Fagerland's alternative ineffective-assistance-of-counsel claim.
Scope of Review.
We review constitutional issues de novo. State v. Predka, 555 N.W.2d 202, 204 (Iowa 1996). We give deference to the district court's findings of fact due to its opportunity to assess the credibility of the witnesses. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). However, we are not bound by those findings. Id.
Motion to Suppress.
To justify the stop of the vehicle for investigatory purposes, the police need only have reasonable suspicion, not probable cause, to believe criminal activity has occurred or is occurring. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). When a person challenges a stop on the basis that reasonable suspicion did not exist, the State must show by a preponderance of the evidence that specific and articulable facts taken together with rational inferences from those facts supported the officer's reasonable belief that criminal activity may have occurred. State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d 601. Mere suspicion, curiosity, or hunch of criminal activity is not enough. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting the officer, including all information available to the officer at the time the officer makes the decision to stop the vehicle. Id. at 642. The legality of the stop does not depend on the actual motivations of the officer involved in the stop. Heminover, 619 N.W.2d at 357.
Our supreme court has twice addressed whether the smell of marijuana emanating from a person can provide a police officer with sufficient grounds to conduct a warrantless search. While the court has not determined whether an officer's detection of the smell of burnt marijuana alone can give rise to probable cause to conduct a warrantless search of a person, it has determined that such smell emanating from a person who makes furtive movements may support an officer's reasonable suspicion and justify a search. State v. Merrill, 538 N.W.2d 300, 301-02 (Iowa 1995). Similarly, the court has concluded that an officer's smell of burnt marijuana combined with his observation of an alligator clip hanging from the defendant's rearview mirror provided ample justification for a warrantless search of a person. State v. Moriarty, 566 N.W.2d 866, 868-69 (Iowa 1997).
Here we need not decide whether the smell of burnt marijuana alone gave Officer Quandt probable cause to search Fagerlind and thus to stop the vehicle she occupied. The facts of this case are similar to those in Moriarty and Merrill, and we find those cases to be instructive. Here, as in those cases, the smell of burnt marijuana "was not the only factor in the officer's probable cause calculus." Moriarty, 566 N.W.2d at 869. Quandt testified at the suppression hearing that while Fagerlind was in the convenience store she appeared to be in a hurry and nervous as a result of his presence. We conclude Fagerlind's nervousness in Officer Quandt's presence is a factor that may be considered in the probable cause determination. See Predka, 555 N.W.2d at 207 (stating defendant's nervousness when search of trunk was proposed was properly considered in determining probable cause to search). We conclude Fagerlind's nervousness when she was in the presence of Officer Quandt combined with the detectable smell of the burnt marijuana on Fagerlind's person provided Quandt with probable cause to search Fagerlind and thus to stop the vehicle he knew she occupied. Accordingly, we find no error in the district court's ruling on Fagerlind's motion to suppress.
Right of Allocution.
Fagerlind next maintains the court denied her right of allocution. Our review of sentencing procedures is for an abuse of discretion. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). Iowa Rule of Criminal Procedure 2.23(3)( d) provides that "[p]rior to rendition [of judgment], counsel for the defendant, and the defendant personally shall be allowed to address the court where either wishes to make a statement in mitigation of punishment. . . ." The court need not use any special language but must, in some fashion, give the defendant a chance to volunteer helpful information. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).
Substantial compliance with the rule is sufficient. State v. Glenn, 431 N.W.2d 193, 194 (Iowa Ct.App. 1988).
Here, the court asked Fagerlind during the plea proceeding whether she wished to proceed to immediate sentencing. Fagerlind replied affirmatively. The court additionally asked her if she understood the nature of, and her waiver of the right to file, a motion in arrest of judgment. Fagerlind again replied affirmatively. The State asserts that "[a]lthough the[se] questions did not specifically ask the defendant to voice reasons for mitigation, they provided her `an opportunity to speak regarding [her] punishment'" and thus constituted substantial compliance with rule 2.23(3)( d). We disagree. Although no "magic words" are required when the court grants a defendant's right to speak in mitigation of a sentence, the colloquy conducted here was plainly insufficient. Fagerlind was not offered an opportunity to speak in mitigation of her punishment. We therefore vacate the sentence and remand for resentencing.