STATE v. CRAWFORD, 662 N.W.2d 371 (Iowa App. 2003)

No. 2-806 / 01-1868Court of Appeals of Iowa.
Filed January 15, 2003

Appeal from the Iowa District Court for Story County, William J. Pattinson, Timothy J. Finn, and Michael J. Moon, Judges.

Defendant appeals the district court’s judgment and conviction on the charges of possession of cocaine with intent to deliver, immediate control of a firearm while participating in a chapter 124.401(1) narcotics offense, a sentencing enhancement, and possession of marijuana. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennet, Assistant Attorney General, Stephen Holmes, County Attorney, and James S. Scheetz Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.

SACKETT, C.J.

Defendant Rico Andrea Crawford appeals his convictions for possession of cocaine with intent to deliver, immediate control of a firearm while participating in a chapter 124.401(1) narcotics offense, possession of marijuana, and a sentencing enhancement. He contends that drugs and a firearm found during the execution of a search warrant in a dwelling where he was an overnight guest should have been suppressed because the warrant under which they were seized was stale. He also contends the district court erred in not dismissing the charge of immediate control of a firearm. We affirm.

The dwelling where police found the items sought to be suppressed was the home of Sean Carter. Carter was seen driving a getaway car after a robbery at the Mayfair Cleaners in Ames, Iowa, on February 27, 2001. Police Detective James Konopa filed a sworn statement on which a search warrant was issued for Carter’s dwelling within hours of the robbery. The warrant authorized officers to search Carter’s dwelling for (1) imprinted bank bags, (2) bills and coins, (3) checks, (4) a coat, and (5) a stocking cap. Konopa and others attempting to execute the warrant that same evening found no one home. They elected not to execute the warrant because they did not want to damage the property by breaking down the door as Carter was living in a rental unit. The next morning Carter, who it was later learned had driven by his home when the officers were at his door, called Konopa and went to the police station to talk to him. Carter agreed to cooperate in the investigation of the robbery. He contended he had given a person a ride at the time of the robbery and he would find out who the person was. There was no evidence to indicate Carter knew the search warrant had been issued. However, no further attempts were made to execute the warrant until March 8, 2001. At that time Carter had not identified the person he had given a ride. Konopa confronted Carter at his home. Carter told Konopa the rider had disappeared. By that time Konopa had determined Carter was not cooperative and called the county attorney, who directed that the February 27, 2001 search warrant be executed.

Upon entering Carter’s home the officers noticed the defendant in the basement and ordered defendant and his girlfriend upstairs. While searching the basement the officers found a green leafy substance floating in a glass of soda and a plastic baggy containing a green leafy substance under the mattress. Officers also opened a locked safe with nearby keys finding two baggies containing a white rocky substance, ammunition, a gun, baggies, defendant’s identification and $300 in cash in the safe. Defendant admitted the drugs and gun were his but said the cash belonged to his girlfriend. The substances found were sent to the Department of Criminal Investigation for testing and were determined to include cocaine, cocaine salt, and marijuana.

Defendant filed a motion to suppress the fruits of the search and made continuing motions throughout the course of the trial, again seeking their suppression. The motions were overruled. The State concedes error was preserved on the claim defendant now raises.

Defendant is alleging a violation of his constitutional right to be protected against unreasonable searches and seizures; consequently our scope of review is an evaluation of the totality of the circumstances, which is the equivalent of a de novo review. See State v. Peck, 517 N.W.2d 230, 232 (Iowa Ct.App. 1994).

Defendant concedes the warrant was supported by probable cause at the time it was issued. His challenge is that during the eight days between the issuance of the warrant and its execution the warrant was rendered stale. While recognizing that Iowa Code section 808.8 (1999) provides search warrants should be executed within ten days of the time they are issued, defendant contends this section is not dispositive of the issue, and that even though the warrant was executed before this statutory deadline, an unconstitutional delay still occurred. He also argues that the fact eight days of the ten-day statutory time had expired prior to the warrant’s execution is evidence the warrant was stale.

The State argues a warrant eight days old is not stale and the fact the warrant was executed within the ten-day statutory period supports a finding of reasonableness.

The district court rejected the defendant’s challenge to the staleness of the warrant, finding it was executed within the statutory time period of section 808.8, and there were reasonable reasons for waiting to execute the warrant — namely the police’s election not to damage the property by forcing the door and Carter’s initial offer to cooperate.

Whether a warrant is stale is resolved by consideration of all the factors present in the particular situation. Andresen v. Maryland, 427 U.S. 463, 477-478, 96 S.Ct. 2737, 2747, 49 L.Ed.2d 627, 640-41
(1976). Whether the delay between the completion of the transactions on which the warrants are based and the ensuing search precludes a determination there was probable cause to believe the place searched contained evidence of the crime is decided on the facts of the particular case. See id.; see also State v. Paterno, 309 N.W.2d 420, 423-24 (Iowa 1981).

The nexus between criminal activity, the items to be seized, and the place to be searched can be found by considering the type of crime, the nature of the items involved, the extent of the opportunity for concealment, and the normal inferences as to where the items would likely be concealed. See State v. Gogg, 561 N.W.2d 360, 365 (Iowa 1997); State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). Probable cause requires a reasonable belief that evidence of a crime will be found on the premises to be searched. Randle, 555 N.W.2d at 671. Probable cause does not require absolute proof the items sought to be seized are in the area to be searched. Such a rule would require an impossibility. Paterno, 309 N.W.2d at 425. Iowa follows the “totality of the circumstances” test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Randle, 555 N.W.2d at 670. It is important the information upon which this belief is based be current and not remote in time. Id. at 671. The passage of time alone is not determinative; whether information is stale depends on the circumstances of the case. State v. Hennon, 314 N.W.2d 405, 406 (Iowa 1982).

There are several circumstances which are relevant in determining whether the warrant here was stale at the time of the search. One is the character of the crime — that is, whether it is an isolated event or an ongoing activity. See Randle, 555 N.W.2d at 670. A greater lapse of time is accepted between the issuance of a warrant and its execution where crimes are continuous. See State v. Bean, 239 N.W.2d 556, 558 (Iowa 1976). A second circumstance is the nature of the thing to be seized — that is whether among other things it is not affixed and easily removable. Id. at 559; State v. Gillespie, 503 N.W.2d 612, 616 (Iowa Ct.App. 1993). A lesser lapse of time is acceptable between the issuance of a warrant and its execution where the item is not affixed and easily removable.

At the time the officers sought to execute the warrant the crime was eight days past and there was no evidence of continuing criminal activity. The items the warrant sought, namely money, a check, bank bags, a mask, and clothing are all items of such nature that they are easily movable or removable. Carter was aware he had been identified as the person driving the getaway car and that the police had visited his residence, although there was no evidence he knew a search warrant had been issued. There was no evidence the warrant was being executed for a purpose other than to obtain evidence connected with the robbery. Detective Konopa testified he did not believe items being sought were at Carter’s home after Carter was aware the police were looking for him, but felt Carter might have brought them back.[1] While the officer’s subjective opinion the warrant was stale at one point is not decisive because of his substantial involvement in the case, it does have some relevance in determining on de novo review whether on March 8, 2002, the date the warrant was executed, it was objectively reasonable, and whether a reasonable person would believe the property sought continued to be concealed on the premises to be searched. See Bean, 239 N.W.2d at 559. The State argues Bean supports its position because there the court found a twenty-seven day time period did not render a search warrant stale in a stolen property case. Bean, however, is distinguishable on its facts because it involved criminal activity over a period of time and a large amount of property, both of which were factors the court considered in assessing the time frame. Neither factor appears here.

A reasonable person could believe that if the stolen property and the clothing used by the robber had been on the premises at the time the warrant issued they would not have been removed by the time of the search. We affirm on this issue.

Defendant next contends the State did not prove him guilty of being in immediate possession or control of a firearm while participating in a violation of Iowa drug laws under Iowa Code section 124.401(e). The offense is a penalty enhancement for drug possession, manufacturing, and distribution offenses. State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997).

The State agrees defendant has preserved error on this claim. The parties agree this issue involves a mixed question of law and fact. To the extent it is a question of law, issues of statutory interpretation and application are reviewed for errors of law. Id. We are not bound by the trial court’s determination of law in such instances. Id.; State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994); State v. Bond, 493 N.W.2d 826, 828
(Iowa 1992). To the extent the district court’s factual conclusions are not supported by substantial evidence we review the evidence to determine whether a rational trier of fact would have found the defendant guilty of the charged offense. Bond, 493 N.W.2d at 828; State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).

When the officers entered the house the defendant was in the basement. The officer indicated defendant was at the bottom of the stairs wearing pajamas, and he stepped out of view and then came back. While the officer indicated the defendant had just come out of a bedroom, this appeared to be an opinion rather than a direct observation.[2] The officer escorted the defendant upstairs. When the officer returned to the basement, the door to the bedroom was closed. Defendant said his girlfriend was there but she was naked and putting on her clothes, so the officer waited until she dressed and then had her come out. After defendant’s girlfriend left the bedroom, the officer went into the bedroom and saw at the foot end of the bed right next to the door what he described as a century-type money safe. Then lying on the floor approximately three feet out in front to the side of the bed he found a set of four to six keys. One of the keys opened the safe. The gun and ammunition, together with drugs, money and defendant’s identification, were found in the safe. Defendant said the gun and drugs were his.

Defendant contends these facts do not support a finding that he could exercise immediate dominion over the gun because it was in a locked container that would have made it impossible to reach in an instant.

Direct control exists when the suspect is in such close proximity to the item in question as to claim immediate dominion over the item Eickelberg, 574 N.W.2d at 1. Immediate control, as used in section 124.401(1)(e), is the same as direct control as defined in the Iowa Supreme Court’s prior cases. Id. While immediate possession, as found in section 124.401(1)(e), may require the firearm to be located on the defendant’s person, immediate control necessitates only that the firearm be in such close proximity to the defendant as to enable him to claim immediate dominion over the firearm. Id.

The State advances that the district court’s findings are in accord with Eickelberg, 574 N.W.2d at 2 (loaded revolver in gun case on closet shelf) and State v. Canada, 212 N.W.2d 430, 432 (Iowa 1973) (gun between spring and mattress of a bed). We agree and affirm on this issue.

AFFIRMED.