Opinion
No. 4-683 / 04-0376
Filed January 26, 2005
Appeal from the Iowa District Court for Osceola County, Frank B. Nelson, (ruling on motion to suppress) and Patrick M. Carr, (bench trial) Judges.
A defendant appeals from the district court's denial of his motion to suppress evidence. REVERSED AND REMANDED.
Randall Sease, Hartley, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, and Robert Hansen, County Attorney, for appellee.
Heard by Sackett, C.J., Vogel, Zimmer, and Hecht, J.J., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Michael Kolbeck appeals from the district court's denial of his motion to suppress evidence seized pursuant to a search warrant. Because we conclude the warrant was not supported by probable cause, we reverse the district court's suppression ruling, as well as Kolbeck's subsequent convictions and sentences, and remand this matter for further proceedings not inconsistent with this opinion.
I. Background Facts and Proceedings.
On September 10, 2002, Michael Kolbeck was required to surrender a urine sample to his probation officer. The sample, which was submitted to a field test kit, showed positive results for THC (marijuana) and cocaine. The county attorney's office and county sheriff's office were informed of the test results.
On September 11, 2002, Deputy Sheriff Seth Hoffman made an application to search Kolbeck's residence and garage, as well as a vehicle owned by Kolbeck's girlfriend, Ronda Fisher, for marijuana, cocaine, and related items. The application relied solely on the positive field test result, and Kolbeck's criminal history.
The urine sample was mailed to the DCI Crime Lab for further testing after the search warrant application was prepared.
A computer printout of Kolbeck's criminal history was attached to the warrant application. It revealed three felony convictions for manufacturing marijuana in violation of Iowa Code section 124.401(1)(d) (1999), and one misdemeanor conviction for possession of marijuana in violation of Iowa Code section 124.401(5). It appears that all four convictions stem from events which occurred in September 2000.
Kolbeck's criminal history reveals that the first felony manufacturing conviction occurred in Lyon County, with an arrest date of September 13, 2000, while the remaining convictions occurred in Osceola County, with an arrest date of December 15, 2000. Kolbeck was sentenced for all four offenses on the same date in 2001. The narratives attached to the warrant application indicate that Kolbeck was arrested in Lyon County during police surveillance of a cultivated marijuana patch, and that police immediately obtained and executed search warrants for Kolbeck's property in Osceola County. When the warrants were executed, police located a marijuana plant, marijuana seeds and buds, and numerous drug-related items.
On September 11, 2002, a magistrate issued the requested search warrant, concluding the information in the application provided probable cause to search Kolbeck's property and Fisher's van for the named drugs and drug-related items. Upon executing the warrant, officers observed four marijuana plants growing on Kolbeck's property, along with other items, including baggies and detoxification agents. Kolbeck was arrested and ultimately charged with one count of manufacturing or possessing with the intent to manufacture or conspiracy to manufacture marijuana, in contravention of Iowa Code section 124.401(1)(d) (2001); and one count of a drug tax stamp violation, in contravention of Iowa Code sections 453B.3 and 453B.12.
Only one of the marijuana plants was actually seized. After officers located the plants in Kolbeck's back yard, they briefly left the yard area. When an officer returned a few moments later, he discovered someone had removed three of the plants.
Kolbeck moved to suppress the evidence seized pursuant to the warrant, asserting the information in the application did not establish probable cause to search his property. The district court overruled the motion, concluding that it is certainly common sense to conclude that the marijuana and cocaine had to come from a source the Defendant has access to. Obviously, the Defendant's home, garage, and vehicle would be logical places for the Defendant to store such controlled substances.
Kolbeck filed an application for interlocutory appeal, which was denied by the supreme court. He then submitted to a bench trial on the minutes of testimony. The district court convicted Kolbeck of both manufacturing marijuana and a drug tax stamp violation, and sentenced him on both counts. Kolbeck appeals, asserting the search warrant was not supported by probable cause, and thus items seized pursuant to that warrant should be suppressed.
II. Scope of Review.
Because Kolbeck's challenge to the warrant implicates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Iowa Constitution, our review is de novo. State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004). However, we do not make an independent finding as to the existence of probable cause; we consider only whether the issuing magistrate had a substantial basis for his finding. Id. Our inquiry is limited to the information, reduced to writing, that was actually presented to the issuing magistrate at the time the application for the warrant was made. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997).
III. Discussion.
The standard to be applied when reviewing the issuance of search warrants is well established:
The existence of probable cause to search a particular area depends on whether a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched. The task of the judge issuing the search warrant is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit" presented to the judge, there is a fair probability that law enforcement authorities will find evidence of a crime at a particular place. A finding of probable cause depends on "a nexus between criminal activity, the things to be seized and the place to be searched." In making that determination, the judge may rely on reasonable, common-sense inferences from the information presented. Close questions are resolved in favor of the validation of the warrant. In reviewing the court's determination, we draw all reasonable inferences to support a court's finding of probable cause.
Davis, 679 N.W.2d at 656 (citations omitted).
The district court concluded the application supported a reasonable belief that marijuana, cocaine and related items would be found in Kolbeck's residence and garage. In doing so, the court relied on an inference that a person currently using marijuana and cocaine would keep such items in a place he had access to, including his home and garage. We cannot conclude this was a reasonable inference, given the limited information in the application.
The nexus between the items to be seized and the place to be searched necessarily turns on "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). Thus, in certain cases it is reasonable to infer that evidence of crime will be found on a defendant's property.
For example, it is reasonable to infer that stolen property will be found at a defendant's residence. State v. Gathercole, 553 N.W.2d 569, 574 (Iowa 1996). Courts have been willing to reach such a conclusion in property-related cases, in part, "because stolen property is not inherently incriminating in the same way as narcotics and because it is usually not as readily concealable in other possible hiding places as a small stash of drugs." Id. (quoting Wayne R. LaFave, Search Seizure § 3.7(d), at 381-82 (3d ed. 1996)). In addition, a nexus will often be found between objects used in the commission of a crime, and a suspect's home:
[W]here the object of the search is a weapon used in the crime or clothing worn at the time of the crime, the inference that the items are at the offender's residence is especially compelling, at least in those cases where the perpetrator is unaware that the victim has been able to identify him to the police.
Id. (quoting LaFave at 384).
Under certain circumstances, it is reasonable to find a similar nexus between drug-related evidence and an individual's property. Warrants to search an individual's home or other property have generally been upheld when there is current evidence tying drug use or drug possession directly to the property to be searched. See, e.g., State v. Padavich, 536 N.W.2d 743, 748 (Iowa 1995) (upholding warrant that relied, in part, on fact that drugs and drug use by the defendant were observed at the location to be searched). However, warrants that have been upheld in the absence of such direct evidence were based upon applications that indicated more than mere drug possession or use by the owner or possessor of the property to be searched.
For instance, in State v. Godbersen, 493 N.W.2d 852, 855 (Iowa 1992), evidence that an individual possessed a large quantity of drugs when apprehended led to a reasonable inference that the individual was involved in drug trafficking, and further that evidence of trafficking, such as drugs, weighing and measuring devices, and packaging supplies would be found at the individual's home. A similar result was reached in State v. Groff, 323 N.W.2d 204, 212 (Iowa 1982), where the warrant application to search the residence of a married couple relied primarily on the fact that a large patch of marijuana plants was located in a farm field in another county, which field was "owned" by the husband. The court noted the quantity of marijuana was indicative of a "large-scale" operation, the individual growing the plants would require a location to process them, and the defendants' residence fit the criteria for such a place. Id.
In fact, the field was owned by the husband's father, and was only farmed by the husband. However, the court found the distinction to be "negligible," as the word "farms" would have created a greater nexus than the word "owns." Groff, 323 N.W.2d at 210.
Here, in contrast, the warrant application indicated only that Kolbeck had recently failed a urine test while on probation for drug offenses which had occurred two years earlier. There was absolutely no evidence indicating Kolbeck was currently involved in manufacturing or distributing an illegal substance, or tying the current drug use to Kolbeck's property. We are mindful that Deputy Hoffman opined, "It is common for someone using controlled substances to store drugs in their residence [and] their out buildings." While this opinion is an important factor for our consideration, see Godbersen, 493 N.W.2d.at 856, we cannot conclude that it provides a nexus between Kolbeck's drug use and his property.
Kolbeck's drug consumption could have easily occurred in any number of locations other than his own home. Unlike manufacturing, consumption does not require a secure location, or for that matter any enclosed space. The mere fact that Kolbeck ingested drugs, which are easily portable, concealable, and disposable, simply does not give rise to a reasonable inference that drugs and related items would be found in his residence and garage.
The State contends the necessary nexus can be found when the foregoing facts are viewed in light of Kolbeck's criminal history of manufacturing marijuana. We agree with the State that such evidence can be relevant to a probable cause determination. See Padavich, 536 N.W.2d at 748 ("the magistrate may consider a suspect's history of involvement in the drug trade"). However, we cannot ignore the fact that the events described in the search warrant application occurred some two years prior to the application.
To establish probable cause, the facts in the warrant application must be . . . so closely related to the time of the iss[uance] of the warrant as to justify a finding of probable cause at that time, and whether the proof meets this test must be determined by the circumstances of each case. Generally, it may be said that no more than a "reasonable" time may have elapsed, and that the recital must be of facts so closely related to the time of issuance of the warrant as to justify a finding of probable cause at that time. . . . In determining whether the lapse of time has been unreasonable, heavy reliance will often be placed upon the nature of the alleged offense, a greater lapse of time being permissible where the activity is of a continuous nature as distinguished from an isolated violation.
Padavich, 536 N.W.2d at 748 (citation omitted). Thus, as [d]rugs are readily consumable or transferable . . ., where there is only an isolated observance of a drug offense, probable cause diminishes quickly. But where the information . . . shows ongoing drug-related activities, . . . it is more likely that these activities will continue some time into the future.
Gogg, 561 N.W.2d at 367 (citation omitted).
While our supreme court made the foregoing statements in a slightly different context, we believe their rationale is applicable to this situation. The relevance of the prior drug convictions, and their underlying facts, necessarily fades with time. Here, Kolbeck's previous convictions stemmed from events which occurred nearly two years prior to the warrant application. Moreover, as we have previously noted, there is no evidence currently tying Kolbeck's recent drug use to his home or garage. Nor is there evidence that Kolbeck engaged in other drug-related activities at the property subsequent to his arrests in late 2000.
Generally, such comments on the "staleness" of facts within the warrant application contemplate the passage of time between a directly probative fact — such as observation of drug use or possession — and the time the application was made, rather than the relevance of former criminal activities.
We recognize that a probable cause judgment does not require an exacting degree of certainty, and there need only be a "fair probability" that evidence will be found in the location to be searched. See State v. Franklin, 564 N.W.2d 440, 442 (Iowa 1997). However, "mere suspicion" will not suffice. Id. Even in light of our deferential standard of review, we believe a positive drug test and an incident of drug manufacturing that predates the warrant by two years does not provide a substantial basis for a probable cause determination.
IV. Conclusion.
To support the inference that drugs would be found on Kolbeck's property, there must be at least some more recent evidence indicating that Kolbeck's current drug use is somehow linked to his property. Because there is not, we conclude there was no substantial basis for the issuing magistrate's probable cause finding. We therefore reverse the district court's suppression ruling. The evidence seized pursuant to that search warrant is suppressed. Accordingly, we reverse Kolbeck's convictions and sentences, and remand this matter for further proceedings not inconsistent with this opinion.