No. 4-472 / 02-0711.Court of Appeals of Iowa.
July 28, 2004.
Appeal from the Iowa District Court for Audubon County, J.C. Irvin (Motion to Suppress) and James S. Heckerman (Trial), Judges.
Defendant appeals his conviction and sentence challenging the district court’s denial of his motion to suppress. AFFIRMED.
Robert Kohorst of Kohorst, Early Louis, Harlan, and Anthony Troia, Omaha, Nebraska, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Francine Anderson, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
VOGEL, J.
Kent Clarence Henriksen appeals his conviction and sentence challenging the district court’s denial of his motion to suppress. We affirm.
Background Facts.
After a bench trial, Henriksen was found guilty of possession of marijuana in violation of Iowa Code section 124.401(5) (1999), manufacturing methamphetamine in violation of section 124.401(1)(c)(6), child endangerment in violation of sections 726.6(1)(a) and 726.6(3), felon in possession of a firearm in violation of section 724.26, and possession of stolen property in violation of sections 714.1(1) and/or 714.1(4) and 714.2(1). Prior to trial, Henriksen filed a motion to suppress on two grounds: 1) the information upon which the warrant was based was stale, and 2) the magistrate who issued the warrant failed to assess the credibility and reliability of the person upon whom the applying officer relied. The motion was resisted by the State as untimely; however, the district court found good cause for the delay. Subsequently, the district court denied Henriksen’s motion to suppress and affirmed the magistrate’s finding of probable cause for the issuance of the warrant. Henriksen now appeals the denial of his motion to suppress.
Scope of Review.
In assessing alleged violations of constitutional rights, our standard of review is de novo. State v. Washburne, 574 N.W.2d 261, 263
(Iowa 1997). Our task is not to make an independent determination of probable cause, but only to determine whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). A magistrate makes this determination based upon the “totality of the circumstances.” Id.
Discussion.
On appeal, Henriksen challenges the denial of his motion to suppress on several grounds; however, we are limited to addressing the issues raised in the motion to suppress. See State v. McCright, 569 N.W.2d 605, 607
(Iowa 1997) (“Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.”). Therefore the only issue properly challenged on appeal is Henriksen’s claim that the magistrate who issued the warrant failed to assess the credibility and reliability of the person upon whom the applying officer relied, that is Chad Bald.[1]
On the night of December 30, 2000, Chad Bald was stopped by Deputy Sheriff Jeffrey Merrill for not having functional taillights on the trailer attached to his vehicle. Deputy Merrill questioned Bald regarding the skid loader Bald was hauling. Bald stated that the skid loader belonged to Henriksen and that Henriksen had recently painted it. Deputy Merrill observed the fresh paint and also noticed that the name “Bobcat” or the Bobcat number had been ground off or painted over. Deputy Merrill remembered hearing about an anonymous tip a few months earlier that Henriksen was in the possession of a stolen skid loader from the Omaha area. Deputy Merrill asked Bald if he could take possession of the skid loader to determine if it was stolen. Bald stated he did not know anything about a stolen skid loader and agreed to let Deputy Merrill take the skid loader to investigate further.
Deputy Merrill checked with a local dealer and found that the placard with the vehicle identification number was missing for the skid loader. He then contacted the manufacturer of the skid loader in North Dakota and they advised him of where he could locate the serial number on the Bobcat itself, a company secret. After finding the serial number, Deputy Merrill contacted the Omaha Police Department and found that the serial number matched a stolen skid loader from several years earlier.
Because Henriksen’s whereabouts was unknown, Manning Police Chief Allen Kusel contacted Henriksen’s father, Dale Henriksen, and advised him that they had possession of a skid loader, which was possibly stolen. Chief Kusel also informed Dale that Henriksen should contact the police regarding the skid loader. During the conversation, Dale indicated that Henriksen did have a skid loader but he did not know how he had obtained it.
After confirming the skid loader was in fact stolen and Henriksen had not contacted the police as requested, Deputy Merrill applied for a search warrant from magistrate Ranniger to search Henriksen’s property for the missing placard with the serial number as well as other items associated with the skid loader. The search warrant was issued and executed.
Henriksen claims that the magistrate failed to assess the credibility or reliability of Bald as an informant before issuing the warrant. After the hearing on the motion to suppress the district court found that Bald was not an informant but rather merely a citizen and that his involvement was
simply a chance happening based upon a taillight that was out, and Mr. Bald simply reported that the skid loader belonged to Mr. Henriksen and got it from him, and he was under no duress. There’s no indication that Officer Merrill or anyone else in law enforcement was using Mr. Bald to obtain information. He was simply a citizen who didn’t even come forward. He was simply stopped — as the facts show in the record — and indicated that’s where it came from. Then the investigation led to the fact that the Bobcat was — the skid loader was stolen and that, of course, that information is provided in the attachment A to the search warrant application.
We agree that Bald was only the starting point. Deputy Merrill’s subsequent investigation uncovered the facts that provided the probable cause for the issuance of the search warrant. Therefore, Henriksen’s assertion on appeal, that the issuing magistrate failed to assess the credibility of reliability of the informant, Bald, is without merit.
We nonetheless review briefly the sequence of events leading up to the application of the warrant and conclude the district court’s findings were supported by substantial evidence in the record. See State v. Wotton, 577 N.W.2d 654, 656 (Iowa 1998) (“The district court’s findings of fact are binding on us if supported by substantial evidence.”) (citing State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990)).
Bald was pulled over for a minor violation and answered Deputy Merrill’s questions about the skid loader — that it belonged to Henriksen, he had owned it for at least four years, and Henriksen had recently painted it. Upon further investigation not involving Bald, Deputy Merrill confirmed his suspicions that the skid loader was stolen, that Henriksen was believed to be the one to have stolen it, that according to his own father Henriksen possessed a skid loader, that the serial number had been ground off the exterior of the skid loader, and that it had been recently painted.
Based on the foregoing facts obtained through Deputy Merrill’s investigation, we agree with the district court that there was probable cause to support the issuance of the search warrant for Henriksen’s property.
AFFIRMED.