Preview:

IN THE COURT OF APPEALS OF IOWA No. 1-709 / 11-0134 Filed November 23, 2011 STATE OF IOWA, Plaintiff-Appellant, vs. PETER WHATELEY KLAICH, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.

Peter Klaich appeals from his conviction for serious misdemeanor marijuana possession, claiming error on evidentiary rulings by the district court and ineffective assistance of counsel. AFFIRMED.

Matthew G. Whitaker and Janelle L. Neibuhr of Whitaker, Hagenow, GBMG, Des Moines, for appellant. Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Stephen Holmes, County Attorney, and Bryan J. Barker, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Vaitheswaran and Tabor, JJ.

2

TABOR, J. Peter Klaich appeals from his conviction for serious misdemeanor marijuana possession. He contends the district court should have suppressed the evidence found in his hotel room and abused its discretion in overruling evidentiary challenges to the drug evidence. Klaich also claims his attorney did not provide him with effective assistance with respect to the presentation of witnesses and moving for a new trial. The district court believed the officer's testimony Klaich consented to the search of his hotel room; we defer to that credibility finding and affirm the suppression ruling. Because we find no abuse of discretion in the district court's admission of the drug evidence over the defendant's objections based on the minutes of evidence and chain of custody, we also affirm the evidentiary rulings. Finally, because a more fully developed record would assist us in deciding whether his counsel's performance fell below professional norms and prejudiced the defendant, we preserve those claims for postconviction proceedings. I. Background Facts and Proceedings An employee of the Holiday Inn Express called Ames police on the evening of July 1, 2010, complaining about the smell of marijuana smoke coming from one of the guest rooms. responded to the call. Officers Blake Marshall and Mike Arkovich

They knocked on the door of room 116, which was

registered to Peter Klaich. While waiting for an answer, they could hear the sound of what turned out to be air freshener being sprayed in the hotel room.

3

Eventually, sixty-one-year-old Klaich opened the door. The officers explained why they were there and asked if they could look around the hotel room. Klaich agreed and stepped aside to allow the officers to enter the room. Once inside, they discovered a burnt roach clip, a marijuana cigarette, a grocery sack containing two baggies of marijuana, and an empty baggie lined with what appeared to be marijuana residue in a suitcase. All together, the officers found about nine grams of marijuana. According to Officer Marshall, Klaich admitted to smoking marijuana, telling the officers that it helped ease his chronic back pain. On July 29, 2010, the State charged Klaich with possession of marijuana, a serious misdemeanor in violation of Iowa Code section 124.401(5) (2009). On October 1, 2010, Klaich filed a motion to suppress the evidence found in his hotel room. At an October 27, 2010 hearing, the court heard differing versions of the warrantless search from Officer Arkovich and Klaich. Explicitly finding the

officer's version more credible, the court denied the motion to suppress in an order issued on November 29, 2010. On November 30, 2010, the court held a jury trial. The State offered testimony from Officer Marshall and evidence technician Mark Wheeler to establish the possession charge. The defendant objected to the admission of the marijuana found in his hotel room, alleging that the State did not provide him proper notice of Officer Marshall's testimony concerning its chain of custody. The court admitted the evidence. The defendant called his former girlfriend, Chris Bowman, and Bowman's friend to testify. Klaich also took the stand in his own defense, telling the jurors

4

that he did not know the marijuana was in his hotel room.

He claimed his

girlfriend smoked in the room before he arrived there. He also said he told the officers that the smell drawing the complaint was not from marijuana smoke, but probably from a bag of "immature compost" he kept in the refrigerator for his environmental work. The jury returned a verdict of guilty. The State and the defense both recommended the defendant receive a deferred judgment given his lack of criminal history and his professional achievements. But the district court rejected that recommendation and

sentenced Klaich to the mandatory minimum sentence for marijuana possession. The court reasoned that Klaich was "not young" and "not immature" and at trial "obviously blamed other people for what happened." Klaich appeals on several grounds. II. Did Klaich voluntarily consent to the search? A. Legal principles governing consent searches

Both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect citizens from unreasonable searches and seizures.1 State v. Reinders, 690 N.W.2d 78, 81 (Iowa 2004). A warrantless search is unconstitutional unless it falls within a recognized exception. Id. at 83. Consent searches are one exception to the warrant requirement. Reinier, 628 N.W.2d 460, 464

Download STATE OF IOWA, Plaintiff-Appellant, vs. PETER WHATELEY KLAICH, Defendant-Appelle

Iowa Law