SEPTEMBER 6, 2001

IOWA SUPREME COURT

State v. Allen, 633 N.W.2d 752 (Iowa 9/6/2001).  Drugs -- Delivery -- "Procuring Agent Defense" no longer recognized.  One who merely assists the buyer in obtaining drugs is not entitled to the "procuring agent defense", overruling State v. Lott, 255 N.W.2d 105 (Iowa 1977).  That defense was based on the theory that one could not aid and abet a delivery when assisting only the recipient.  Court now recognizes that the statute is intended to criminalize participation in drug deals, regardless of one's role as a buyer or seller.  "Given this evident legislative intent, we agree with the State’s claim that the procuring agent defense simply has no place in such a statutory scheme. We therefore reject the purely semantic analysis applied in Lott, and now overrule its holding that one who aids only the transferee of drugs cannot be found guilty of delivery."

State v. Belken, 633 N.W.2d 786 (Iowa 9/6/2001).   [1]  Evidence -- rebuttal -- error in allowing offer testimony not given in prior deposition.  The district court did not abuse its discretion  in admitting rebuttal evidence that an investigating officer failed to disclose during a deposition (that the defendant's wife -- who denied the statement during her own cross-examination at trial -- had told another witness she was not sure whether her husband had committed the offense). "Belken's request to preclude testimony came from the investigating officer's failure to disclose information in a deposition, which Belken wrongly attempted to use as a discovery device to pin sanctions on the State. We also conclude Belken was not prejudiced by the evidence."  [2]  Evidence -- DNA.  Scientific director of a private forensic paternity and DNA testing laboratory in St. Louis, Missouri was qualified to testify as an expert on DNA testing and results; State was not required to show expert's laboratory was certified in order to independently establish she was competent to apply and use the DNA technology; and witness was not obligated to explain the specific mathematical computations utilized during the DNA process. [3] Merger.  The district court erred in entering judgment and sentence for both first-degree kidnapping and second-degree sexual abuse. "We merge the sexual abuse conviction, and vacate the judgment and sentence entered on that conviction."

State v. Bergmann, 633 N.W.2d 328 (Iowa 9/6/2001).  [1]  Search and seizure -- patdown of person and search of immediate area.  Police are allowed to pat down a suspect if they have reasonable suspicion that a crime is being or is about to be committed, or if there is a reasonable suspicion that the person is armed and the officer's safety is in jeopardy.  The following factors justified both a patdown of the suspect as well as the area under the seat in the vehicle he had been driving:  "Bergmann was spotted in a known drug area alongside a nefarious drug dealer.  When the drug dealer saw police, he immediately retreated from Bergmann’s car, and Bergmann drove away quickly.  [The officer] recognized Bergmann from a past weapon and drug arrest.  [The officer] felt concern for his safety.  Bergmann lied to [the officer] about where he had been recently.  Bergmann acted nervous while outside the car.  Given all of these factors, [the officer] had reasonable suspicion to pat down Bergmann for weapons.  Moreover, once [the officer] concluded that further investigation was reasonably necessary, he was warranted to assure his protection by ensuring that those in his presence were not armed." [2] Detention and performance of canine sniff.  A dog sniff of a car's perimeter is not a search.  However,  "police cannot unduly prolong their detention of an individual to secure a drug dog or for any other reason without additional suspicion of wrongdoing that warrants expansion of the stop"  The few minutes required for the canine unit to reach the scene fell within the requirements that "the dog sniff be conducted within a reasonable amount of time from the initial, lawful stop and that the stop is not unduly prolonged without a sufficient basis." [3]  Probable cause based on results of dog sniff.  "When the dog was alerted by smelling the presence of narcotics, this provided police with probable cause to search the vehicle."

State v. Campbell, 633 N.W.2d 302 (Iowa 9/6/2001). Alcohol consumption by underaged person in the home.  An adult under the age of 21 cannot act as his or her own guardian so as to fall within the exception allowing consumption of alcohol in private residences when a guardian consents to the underage person's consumption of alcohol and is present.

State v. Crawley, 633 N.W.2d 802 (Iowa 9/6/2001).  [1] Handwriting exemplar -- disguised sample admissible for same purposes as refusal to give sample.  Defendant's provision of disguised handwriting in response to court order was admissible against him at trial as evidence of his consciousness of guilt, just as his total refusal to provide a handwriting exemplar would have been.  [2] Admission of improper evidence cured.  When the State elicited testimony regarding contempt proceedings, the trial court cured any error by admonishing the jury to disregard the reference to contempt.  The same was true of the State's introduction of evidence of a rash of burglaries in the city, by informing the jury that such evidence "was admitted only to serve as background information."  [3]  Evidence of defendant's drug usage.   Evidence of a defendant's drug usage is admissible when it is not wholly independent of the offense for which defendant is being charged; here, serving as the defendant's motive for the thefts. 

State v. Hoegh, 632 N.W.2d 885 (Iowa 9/6/2001). Appointment of special prosecutors by court as opposed to Board of Supervisors.  Notwithstanding a recent amendment to section 331.754(1) transferring the statutory power of appointment of a prosecutor from the courts to the board of supervisors, the district courts still possess inherent authority to do so "when necessary for the administration of justice."  In the absence of such a showing, as here, the court errs in appointing a special prosecutor.  

State v. Johnson, ___ N.W.2d ____ (Sup. Ct. No. 99-940) (Iowa 9/6/2001) (unpublished)  Defendant waives motion to suppress by failing to timely file it. Unless good cause for the lateness is shown, an untimely motion to suppress under the rules of criminal procedure waives the claims asserted.  (although unpublished, click here to see new amendment to Iowa R. App. P. 14(e) allowing citation to unpublished appellate opinions).

State v. Legg, 633 N.W.2d 763 (Iowa 9/6/2001)  [1]  Garage -- legitimate expectation of privacy.  A garage is deemed part of the house's curtilage in which the owner has a legitimate expectation of privacy as evidenced by the following facts:  the garage is in very close proximity to the home, is attached to the residence, is included within an enclosure—the walls—surrounding the home, the door to which is closed, and is used as to store vehicles and other items incident to the use of the premises as a home. person has a legitimate expectation of privacy in an attached garage as part of the property's curtilage.  [2]  Warrantless search -- exigent circumstances and probable cause.  Warrantless entry of defendant's garage were reasonable so as to be within the bounds of the 4th Amendment "probable cause and exigent circumstances" exception where the officer saw defendant's vehicle run a stop sign, gave chase after activating his lights, chased defendant who then accelerated and ran another stop sign, weaving from curb to curb.  Upon reaching her home, defendant exited her car and went inside the garage, ignoring the pursuing officer's command to stop.  The officer took three steps inside the garage in the process of stopping and speaking to defendant, then arresting her for OWI and interference with official acts.  "Although Legg had a legitimate expectation of privacy in her garage, there were exigent circumstances and probable cause that justified Killpack's minimal invasion of this privacy interest."

State v. Lopez, 633 N.W.2d 774 (Iowa 9/6/2001)   [1] Counsel -- substitute counsel.  No abuse of discretion in denying request for substitute counsel where the court made adequate inquiry of the complaint, which yielded no information bearing on the question.  [2]  Vienna Convention warning -- failure to give.  Defendant determined not to be entitled to a new trial due to the State’s failure to notify him of his right to contact the Mexican consulate.  Assuming without deciding that Article 36 of the Vienna Convention creates an individually enforceable right of notification and that the arresting officers knew Lopez was a Mexican national yet failed to advise him of his right to contact the Mexican consulate, the court concludes that defendant failed to show prejudice.   "He did not and is unable to show that contacting the consulate would have resulted in assistance in arranging for alternate legal counsel or in accepting a plea agreement. We need not determine whether the violation had an effect on the trial."

State v. Mitchell, 633 N.W.2d 295 (Iowa 9/6/2001).   404(b) evidence -- sexual acts toward other children.  The district court abused its discretion in admitting other children's testimony (bearing on severed charges) concerning defendant's prior bad acts.  Such testimony went only to defendant's propensity to abuse young girls. "Any other result would cause exclusion of prior-bad-acts evidence under Iowa Rule of Evidence 404(b) to become the exception rather than the rule."  Dissent by Neuman and Ternus, JJ.

State v. Ramirez,  636 N.W.2d 740 (Iowa 9/6/2001)  Guilty pleas -- deportation still considered a collateral consequence.  Deportation is a collateral consequence about which the court is not required to advise the defendant at guilty plea.  However, it "would ... be proper and probably desirable for the court to advise a defendant of such matters."  Likewise, the possibility of deportation remains a collateral consequence for purposes of determining the effectiveness of defense counsel's representation, although "foreign-national defendants should be apprised of all applicable federal laws, especially federal deportation consequences of state guilty pleas."

State v. Royer, 632 N.W.2d 905 (Iowa 9/6/2001)  Drugs -- manufacture charge.  In order to establish a violation of section 124.401(1)(b)(7), the State must show that the manufacturing process actually yielded five grams or more of methamphetamine or any compound, mixture, or preparation that contains any quantity or detectable amount of methamphetamine. The State may aggregate any manufactured substance falling under either or both of these alternatives, but it is not sufficient for the State to rely on the potential yield of methamphetamine that might have been obtained from the ingredients found in the defendant's home and car. 

Taylor v. State, 632 N.W.2d 891 (Iowa 9/6/2001)  [1] Recusal did not constitute abuse of discretion.  While trial courts should provide factual basis on the record for recusing themselves, the appellate court has never found -- and does not here -- an abuse of discretion in recusal.  [2]  Remedy:  recusal of judge to whom case is transferred during appeal for ruling on 179(b) motion.  Postconviction petitioner is not entitled to a new trial when original judge recuses himself from consideration of 179(b) motion upon transfer back to district court during appeal.  "As a matter of public policy, when a Rule 179(b) motion is pending, but the presiding judge recuses himself, it is the new judge who has the authority under Iowa Rule of Civil Procedure 367(a) to decide if a new trial is required."