Full Opinion (html_with_citations)

                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0390
                           Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WALTER BAYLOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen

(motion to suppress), Gary D. McKenrick (bench trial), and Stuart P. Werling

(sentencing), Judges.



      Walter Baylor appeals his convictions for possession of marijuana, third

offense, and failure to affix a tax stamp. REVERSED AND REMANDED.



      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

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

General, Michael J. Walton, County Attorney, and Kelly Cunningham and Dion

Trowers, Assistant County Attorneys, for appellee.



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


VOGEL, P.J.

       Walter Baylor appeals his convictions for possession of marijuana, third

offense, in violation of Iowa Code sections 124.204(4)(m), 124.401(5), and

124.411 (2011), and failure to affix a tax stamp, in violation of Iowa Code

sections 453B.1(3)(b), 453B.3, 453B.7(1), and 453B.12.           Baylor asserts the

district court erred in denying his motion to suppress and also argues his

convictions are not supported by sufficient evidence.        He further claims the

procedures by which he waived his right to a jury trial were deficient, and

therefore, trial counsel was ineffective for failing to object. Finally, Baylor argues

the district court did not recite adequate reasons for imposing its sentence.

       Because we find the State failed to offer the evidence needed to support

its assertion the inventory-search exception applied to the warrantless search of

Baylor’s vehicle, we conclude the district court should have granted Baylor’s

motion to suppress. We therefore remand the case to the district court for a new

trial absent the evidence obtained from the search of Baylor’s vehicle. Because

the resolution of the first issue is dispositive, we need not address the other

claims of error.

I. Factual and Procedural Background

       The minutes of testimony show the following facts. On September 15,

2012, police were called to a convenience store in Walcott, Iowa, due to reports

of a man causing a disturbance.         Officer James Morris interviewed Ashley

Copeland, a store clerk, who informed Officer Morris that she and her boyfriend,

Walter Baylor, had argued. Sherriff’s Deputy Ryan Storm located Baylor on foot

approximately one block away from the store, at which point Officer Morris joined
                                        3


Deputy Storm to interview Baylor. Baylor produced an identification card but no

driver’s license and informed the officers he had been arguing with Copeland

because she thought he was cheating on her. A male employee—Brian Bell—

then asked Baylor to leave. Although the two exchanged words in the parking

lot, no physical altercation occurred. Officer Morris inquired about Baylor’s car,

and Baylor stated he had been dropped off at the gas station.

       The officers placed Baylor in the police car and transported him back to

the store. When interviewed by police, Copeland claimed Baylor had come to

the store to see her because she had broken up with him. Baylor began yelling

at her, after which Bell requested that he leave. Bell told the officers he had

observed Baylor drive away in a silver Pontiac Bonneville with no plates.

Copeland stated she was unsure how Baylor had arrived at the store. Officer

Morris located the Bonneville with no plates—close to where Baylor had been

picked up—and then confirmed Baylor’s driving privileges had been suspended.

When Officer Morris informed Baylor he had found the Bonneville and asked how

Baylor had arrived at the store, Baylor shook his head and smiled.

       Baylor was arrested for driving while suspended.         During a weapons

check, $150 in cash was found in his front pocket, and after he was placed in the

squad car, Baylor stated he had been driving the Bonneville but was afraid to say

anything. He also said he was two months behind in rent and could not afford to

go to jail.   Officer Morris requested that a towing company pick up the car.

According to the minutes of testimony, “Officer Morris then walked over to the

Bonneville to inventory the vehicle’s contents incident to tow. As Officer Morris

opened the driver’s side door he could smell a strong odor of marijuana. Due to
                                          4


the probable cause this then was a vehicle search.” The search resulted in the

discovery of over 42.5 grams of marijuana in a plastic bag, a digital scale with

residue, and a cell phone.

       After Baylor was transported to jail, a search warrant was issued for the

cell phone found in the car.       The text messages found in the phone were

contained in the minutes of testimony, which indicated that Baylor was the owner

of the phone. No further record was made, either at trial or at the suppression

hearing. Rather, the parties and the district court relied fully on the minutes of

testimony.

       Baylor was charged by trial information with possession of marijuana with

intent to deliver, third offense, and failure to affix a tax stamp. A motion to

suppress was filed on December 7, 2012, alleging the lack of a warrant to search

the vehicle rendered the search unconstitutional and, therefore, all evidence

obtained from the search should be suppressed. The district court found the

search “was justified as an inventory search of Defendant’s vehicle prior to it

being impounded” and denied the motion in a written ruling.1            Following the

State’s offer to limit itself to arguing in support of a ten-year sentence, Baylor

waived his right to a jury trial during an on-the-record colloquy, though no written

waiver was entered. A bench trial on the minutes was held, and the district court

convicted Baylor of possession of marijuana, third offense, and failure to affix a



1
 The motion was withdrawn but, following a substitution of counsel, was reinstated. The
State’s resistance argued the search was reasonable based initially on the inventory
exception to the warrant requirement and, once the car was opened and the strong smell
of marijuana presented itself to the officer, probable cause then existed to conduct a
search prior to having the vehicle towed. An unreported hearing was held, and the
parties agreed the motion would be decided based on the minutes of testimony.
                                             5


tax stamp.      On March 7, 2014, the court sentenced Baylor to a term of

incarceration not to exceed five years on each count, with the terms to run

consecutively. Baylor appeals.

II. Motion to Suppress

       Baylor first contends the district court erred in denying his motion to

suppress, asserting the search was unreasonable under the Fourth Amendment

of the United States Constitution.2 He argues the court improperly found the

search was reasonable based on the inventory search exception to the warrant

requirement and argues no other exception applies. Consequently, he claims the

results of the search should have been suppressed.                    The State argues:

(1) Baylor does not have standing to argue he had a reasonable expectation of

privacy in the vehicle;3 (2) the inventory search was properly conducted; and

(3) probable cause supported the warrantless search.


2
  Baylor also refers to the Iowa Constitution but makes no argument a more stringent
standard should be used. Consequently, we will confine our analysis to the grounds
raised in his appeal. See Reilly v. Iowa Dist. Ct.,
783 N.W.2d 490, 494
 (Iowa 2010)
(“Because Reilly has not advanced a standard for interpreting the due process clause
under the Iowa Constitution different from its federal constitutional counterpart, we will
apply the general principles as outlined by the United States Supreme Court.”).
3
  The State contends that because Baylor was not the owner of the vehicle and initially
claimed no valid or legal possession of it he cannot claim he had a reasonable
expectation of privacy in the Bonneville. The State acknowledges in its brief that this
issue was not raised before the district court, but it asserts the issue was not waived,
citing State v. Brooks,
760 N.W.2d 197, 203
 (Iowa 2009), for support. In Brooks, our
supreme court held the State could challenge a defendant’s reasonable expectation of
privacy for the first time on appeal when the State remained silent or neglected to raise
the issue of standing in the lower court.
760 N.W.2d at 203
. However, Brooks does not
lend support for the State’s argument here because, unlike Brooks, the State made an
affirmative assertion at the district court which is inconsistent with now asserting Baylor
did not have a reasonable expectation of privacy in the vehicle. The State claimed in the
district court and on appeal that Baylor had constructive possession of the drugs found
in the car. This precludes the State from claiming Baylor did not have a reasonable
expectation of privacy in the vehicle for the first time on appeal. See
id.
 at 202–03 (citing
Steagald v. United States,
451 U.S. 204, 209
 (1981), which held the State could not
challenge the defendant’s expectation of privacy in the place searched for the first time
                                           6


       We review constitutional claims de novo, that is, we make an independent

evaluation of the totality of the circumstances as shown by the entire record.

State v. Allensworth,
748 N.W.2d 789, 792
 (Iowa 2008). A person is protected

against unreasonable searches and seizures, and therefore, a search conducted

without prior court approval is per se unreasonable unless it falls into a category

that is an exception to the Fourth Amendment’s warrant requirement.
Id.

       The State argues the smell of marijuana gave the officer probable cause

to search in light of the exigent circumstances resulting from the fact the smell

was coming from a vehicle. See State v. Eubanks,
355 N.W.2d 57, 59
 (Iowa

1984) (finding the officer had probable cause and exigent circumstances existed

to search the vehicle without a warrant when the police officer smelled marijuana

emanating from the vehicle). We agree; however, in order for the automobile

exception to apply in this case, the officer first must be in a lawful position to

have smelled the contraband (i.e., open the vehicle’s door). The State claims the

inventory exception to the warrant requirement permitted Officer Morris to open

the car’s door without a warrant. See Allensworth,
748 N.W.2d at 796
 (noting

probable cause for an automobile-exception search may evolve from the

discovery of contraband in the course of a proper inventory search).

       “The legality of an inventory search depends on two overlapping inquiries:

the validity of the impoundment and the scope of the inventory.              If either is

unreasonable, the search violates the Fourth Amendment and evidence


on appeal where the State relied on constructive possession to tie the defendant to the
drugs found in the closet of a house). Because the issue was not raised below and the
State made an affirmative assertion that is contradictory to now challenging standing for
the first time on appeal, we conclude the State has waived its challenge that Baylor did
not have a reasonable expectation of privacy in the vehicle. See
id.
                                              7

discovered in the search must be suppressed.” State v. Huisman,
544 N.W.2d 433, 436
 (Iowa 1996).          “Before a valid inventory search can be conducted,

however, the government official must first properly seize or impound the

defendant’s vehicle.” State v. Jackson,
542 N.W.2d 842, 845
 (Iowa 1996). The

impoundment is reasonable if there are “reasonable standardized procedures

and a purpose other than the investigation of criminal activity.” Huisman,
544 N.W.2d at 437
.

         The State acknowledges it failed to provide any evidence at the motion to

suppress hearing of the standardized procedures the Walcott Police Department

use when deciding whether to impound vehicles.                 However, it claims even

without evidence of the inventory procedures the decision to impound the vehicle

in this case was valid because the vehicle did not have license plates as required

by Iowa Code section 321.17.4 In support, the State cites State v. Aderholdt,
545 N.W.2d 559, 565
 (Iowa 1996), in which the court stated, “Just as a trooper could

not permit the driving of a stolen vehicle, so also the trooper could not lawfully

permit an unregistered vehicle to be driven.”

         In Aderholdt, the police pulled over a vehicle while it was driving on the

interstate because the occupants of the vehicle were not wearing their seat belts.
545 N.W.2d at 561
. The officer issued the driver and passenger citations for the

seat-belt violations but was suspicious the vehicle was transporting narcotics


4
    Iowa Code section 321.17 provides,
                 It is a simple misdemeanor punishable as a scheduled violation
         under section 805.8A, subsection 2, for any person to drive or move or for
         an owner knowingly to permit to be driven or moved upon the highway a
         vehicle of a type required to be registered under this chapter which is not
         registered, or for which the appropriate fees have not been paid, except
         as provided in section 321.109, subsection 3.
                                         8

because of the lack of registration and the suspicious title documents.
Id.
 at

561–62. The officer decided to impound the vehicle until the registration issue

was settled.
Id. at 562
. Neither the driver nor passenger was arrested or in

custody at the time the vehicle was impounded, and they were told they were

free to leave.
Id.
 After the vehicle was towed to the garage, an inventory search

was conducted, and drugs were found in the car.
Id.
 The officers then located

the driver and passenger and placed them under arrest.
Id.

      In contrast, in this case the vehicle was parked on the street “in front of the

driveway to the condos.” Baylor was under arrest for driving while suspended,

and the witnesses identified Baylor as the only occupant of the vehicle. While

the vehicle was not able to be legally driven or moved without license plates,

there is no indication in the record that would tend to show it was likely to be

driven in such a state such as would have justified the police officer in

impounding the vehicle to prevent a violation of section 321.17. There is no

indication in the record as to who owned the vehicle or to indicate the vehicle had

been parked on the street for more than twenty-four hours. See
Iowa Code § 321.89
(1), (2) (defining an abandoned vehicle to include one left unattended for

more than twenty-four hours lacking current registration plates and authorizing a

police authority to seize abandoned vehicles). There is no information in the

record to indicate the vehicle was illegally parked or was a hazard to the

motoring public. See
id.
 (defining abandoned vehicles to include illegally parked

vehicles or vehicles parked on the highway creating a hazard); see also
Iowa Admin. Code r. 661-6.1
 (permitting the department of public safety to impound

vehicles determined to be abandoned as defined in section 321.89(1)). Most
                                        9


importantly, we do not have any information in the record indicating when and

how law enforcement in Walcott makes the decision to impound vehicles. See

Huisman,
544 N.W.2d at 437
 (holding the impoundment is reasonable if there are

“reasonable standardized procedures and a purpose other than the investigation

of criminal activity”).

       The State had the burden to prove by a preponderance of the evidence

that the warrantless search falls within one of the recognized exceptions. See

State v. Watts,
801 N.W.2d 845, 850
 (Iowa 2011). In the context of an inventory

search, the government must produce evidence that the impoundment and the

inventory search procedures were in place and that law enforcement complied

with those procedures. United States v. Kennedy,
427 F.3d 1136, 1144
 (8th Cir.

2005). At the suppression hearing, the State agreed to permit the court to decide

the motion to suppress based solely on the minutes of testimony, which

completely fail to provide even the barest of information to support the State’s

assertion the inventory-search exception applied in this case. See Huisman,
544 N.W.2d at 437
 (stating the police policies on impounding vehicles “need not be

exclusively written”). Because the State failed to provide the necessary evidence

to support its claim the inventory-search exception applied, we find the district

court should have granted Baylor’s motion to suppress. We reverse the district

court’s ruling on the motion to suppress and remand the case to the district court

for a new trial absent the evidence found in the vehicle.       Because we are

remanding the case for a new trial, we need not decide Baylor’s other claims.

       REVERSED AND REMANDED.