Preview:

IN THE COURT OF APPEALS OF IOWA No. 1-755 / 10-2100 Filed November 23, 2011 STATE OF IOWA, Plaintiff-Appellee, vs. DOYLE WAYNE COWAN, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Wayne County, Gary Kimes, Judge.

Doyle Cowan appeals from his convictions for possession of the precursor anhydrous ammonia with the intent to manufacture methamphetamine and possession of methamphetamine with the intent to deliver. REMANDED. AFFIRMED AND

Jeremy B.A. Feitelson of Feitelson Law, L.L.C., West Des Moines, for appellant. Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant Attorney General, and Alan M. Wilson, County Attorney, for appellee.

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

2

TABOR, J. Doyle Cowan appeals from his convictions for possession of the precursor anhydrous ammonia with the intent to manufacture methamphetamine and possession of methamphetamine with the intent to deliver. Cowan challenges the district court's denial of his motion to suppress and the sufficiency of the evidence to prove the precursor count. Because the search of Cowan's car was reasonable under the warrant exception for impound and inventory, we affirm the suppression ruling. We also find substantial evidence in the trial record supporting his conviction for possession of anhydrous ammonia with the intent to manufacture

methamphetamine. Finally, we remand the case for an evidentiary hearing on the alleged error in the judgment entry and for a determination whether Cowan's sentence was illegal. I. Background Facts and Proceedings In response to reported anhydrous ammonia thefts, Wayne County Deputy Sheriff Lance Smith set up surveillance at the Fowler Elevator just south of Seymour. In the early morning hours of October 17, 2009, the deputy heard

someone walk up to the tank and "start messing with the hoses." The suspect carried a red air tank, converted to hold anhydrous ammonia. Deputy Smith called Seymour Officer Rich Carter for backup. The deputy then turned his

flashlight on the suspect and commanded: "Stop, Sheriff's Department." The suspect tried to run, but "immediately went to the ground" when the deputy deployed his taser.

3

Deputy Smith placed the suspect in handcuffs and identified him as Doyle Cowan. Officer Carter arrived at the time of the arrest and ushered Cowan into his squad car. The officers also discovered that Cowan had an active arrest warrant from Appanoose County. Deputy Smith recovered the red tank Cowan had been carrying near the elevator. The tank had a strong odor and bluing around the valve indicating a corrosive reaction from anhydrous ammonia. Cowan first told the officers that he had been dropped off at the elevator, but eventually admitted that he drove himself. He showed the officers where he parked his car--about one mile away from the Fowler tanks, off a gravel road, blocking access to hay bales in a farm field. The car's location led the officers to believe that Cowan was trying to conceal it from sight. Officer Carter knew that the rural property was owned by Seymour resident Duane Rupalo. Because of the early morning hour, the officers did not try to contact Rupalo. Instead, they informed Cowan that they planned to

impound his car. Officer Carter explained at the suppression hearing: He was being arrested and he didn't want his vehicle left there I didn't think. He told us where to go find it and I don't know what he expected us to do with it. We told him we was going to tow it. He was fine with that. Didn't make any objections in either direction. I mean, he drove us directly to it. The officers inventoried the contents of the vehicle before it was towed. They found a box inside a jacket in the back seat. The box contained a ten-gram scale, two Ziploc baggies filled with a white powdery substance that laboratory testing proved to be 3.3 grams of methamphetamine, and empty baggies.

4

On October 27, 2009, the State filed a two-count trial information charging the defendant with possession of the precursor anhydrous ammonia, in violation of Iowa Code section 124.401(4)(d) (2009), and possession of

methamphetamine, in violation of section 124.401(1)(c)(7).1

On January 20,

2010, the State filed a supplemental trial information accusing Cowan of being an habitual offender under section 902.8. The county attorney withdrew that

allegation before Cowan's sentencing hearing. Cowan filed a motion to suppress on March 9, 2010. The motion alleged the officers' search of his car--based on the impound and inventory exception to the warrant requirement--violated the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Iowa Constitution. On July 7, 2010, the State filed a notice of additional minutes, indicating Officer Carter would testify that law enforcement searched Cowan's vehicle "incident to Cowan's arrest on both the Appanoose County warrant and as a result of the current incident, and as a result of the vehicle being impounded." This filing prompted the defense to file a second motion to suppress, contending that the search of his care was not justified as incident to his arrest under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Deputy Smith and Officer Carter testified at a suppression hearing on August 3, 2010. The district court denied the suppression motions from the bench at the end of the hearing and issued a hand-written calendar note incorporating that oral ruling.

1

The State later amended the trial information to reflect that the correct subsection was (c)(6) and not (c)(7).

5

Cowan waived his right to a jury trial and the State presented its case to the district court on October 6, 2010. The court issued a calendar entry on that date, finding Cowan guilty on both counts. The court entered judgment and imposed sentence on December 22, 2010. Following the State's

recommendation, the court ordered Cowan's sentences to run consecutively. Cowan filed a timely notice of appeal. II. Scope and Standards of Review We examine the suppression ruling de novo because the search of Cowan's car implicates the Fourth Amendment to the federal constitution and Article I, Section 8 of the state constitution. State v. Allensworth, 748 N.W.2d 789, 792 (Iowa 2008). We review sufficiency-of-the-evidence claims for errors at law. State v. Petitothory, 702 N.W.2d 854, 856 (Iowa 2005). In jury-waived cases, the court's findings of fact function as a special verdict. State v. Parkey, 471 N.W.2d 896, 897 (Iowa Ct. App. 1991). Our court is constrained by the district court's finding of guilt unless we find a lack of substantial evidence in the record to support such a finding. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). In deciding if

substantial evidence exists, we view the proof in the light most favorable to the State. Id. Substantial evidence must be able to convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id. In our review, we

consider all of the record evidence, not just that supporting the court's finding of guilt. Id. In assessing witness credibility, a fact finder is guided by its common

6

sense and prior experience. 1998). III. Analysis A. Did the State

State v. Hopkins, 576 N.W.2d 374, 377 (Iowa

establish

an

exception

to

the

warrant

requirement? The district court overruled Cowan's motions to suppress, finding that a "standard inventory search was conducted prior to towing for the reasons set forth in this record." On appeal, Cowan argues the search of his car was not justified under either the impound-inventory exception or the search-incident-toarrest exception to the warrant requirement. The State counters that the officers conducted a valid impound-and-inventory search. The State does not advance an argument on appeal that the officers were entitled to search Cowan's car incident to his arrest. Instead, the State presents an alternative argument the search was reasonable under the automobile exception, citing Allensworth.2 Both the Fourth Amendment and Article I, Section 8 protect against unreasonable searches and seizures. See State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). A warrantless search--like that of Cowan's car--is per se

unreasonable unless it falls within a recognized exception. See id. at 37. A search conducted in compliance with a law enforcement agency's impound -andinventory policy is a recognized exception to the warrant requirement. Colorado

2

The State does not point out in the record where the county attorney argued this exception to the warrant requirement to the district court. See Devoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding neither party may normally assert a claim on appeal they could have, but failed to, raise at trial). But because we opt to decide the suppression issue on the impound-inventory ground, we do not reach the question whether the State preserved the automobile-exception argument.

7

v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739, 745 (1987); State Huisman, 544 N.W.2d 433, 436 (Iowa 1996). This exception exists to

address the practical problems facing officers who arrest the driver of a vehicle and then assume responsibility for the safekeeping of the vehicle and its contents; in such circumstances, officers act as caretakers rather than criminal investigators. State v. Jackson, 542 N.W.2d 842, 845 (Iowa 1996); see South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3097, 49 L. Ed. 2d 1000, 1005 (1976). In deciding the validity of an inventory search, we must examine whether the officers were abiding by reasonable standardized criteria from their department. Huisman, 544 N.W.2d at 437. A standardized policy "need not be exclusively written." Id. "The legality of an inventory search depends on two overlapping inquiries: the validity of the impoundment and the scope of the inventory." Id. at 436. If either is unreasonable, the search is illegal and any evidence discovered must be suppressed. Jackson, 542 N.W.2d at 845. Both Deputy Smith and Officer Carter testified that their departments had established criteria governing impound-and-inventory searches. But the State did not offer written versions of those policies into evidence. While we recognize that such policies do not have to be exclusively written, our review in cases such as this would be aided by reference to the language of the standardized criteria. Nevertheless, Cowan does not contest the existence of standardized criteria in the Wayne County Sheriff's Office or the Seymour Police Department.

8

Cowan challenges only the validity of the officers' decision to impound his car under the policies they articulated at the suppression hearing. An officer's decision to impound is reasonable if it is made "according to standardized criteria and on the basis of something other than suspicion of evidence of criminal activity." Huisman, 544 N.W.2d at 437 (citing Bertine, 479 U.S. at 375, 107 S. Ct. at 743, 93 L. Ed. 2d at 748). Deputy Smith testified the policy of the Wayne County Sheriff's Office provided that when the driver of a vehicle was arrested, the vehicle would be towed and its contents inventoried. In response to cross-examination questions, the deputy was unsure if the policy provided for vehicles to be towed whenever they were parked on private property not belonging to the driver. But he testified that doing so was his past practice. Like the situation in Huisman, this police custom limited opportunities for the exercise of police discretion regarding impoundment of vehicles, and thus did not increase the risk of arbitrary searches of an arrested person's automobile. See id. at 438. Officer Carter described the Seymour police impound policy as follows: If the person is arrested and the vehicle is left on somebody's property or in the road or whatever, it gets towed. That is just policy, I mean. Unless there is someone there to take control of the vehicle and take it to their house or whatever, we always tow the vehicle. Accordingly, even if the deputy did not strictly follow the Wayne County impoundment policy, the Seymour police policy dictated the same result. Cowan argues on appeal that the impoundment of his car was not reasonable because his arrest was "independent and unrelated to his vehicle or

9

the location of his vehicle." This argument may be a valid attack on a search incident to arrest, but does not apply to the impound-and-inventory exception. An impoundment decision can be valid even if the reason for the driver's arrest lacks any connection to the vehicle. In fact, peace officers are not supposed to impound a vehicle and conduct an inventory search as a means to look for evidence of a crime. Id. at 439 (explaining that "an impound is unconstitutional if it is done to investigate suspected criminal activity"). Contrary to Cowan's contentions, we conclude his car was parked in a location warranting impoundment under the peace officers' policies. He left the car on private property in a spot that could have been a nuisance to the property owner in accessing hay bales and moving equipment into a farm field. See id. at 440 (upholding the administrative reason for impoundment where the defendant's "vehicle could have become a nuisance" if left in the motel parking lot). The impoundment also protected Cowan's car from the possibility of theft or vandalism at the secluded location. See United States v. Ramos-Morales, 981 F.2d 625, 626 (1st Cir. 1992) (noting many precedents finding police impoundment to protect a car from theft or vandalism to be reasonable). On appeal, Cowan makes much of the officers' failure to check with the property owner to see if Cowan had permission to park his car at that location. Significantly, Cowan did not tell the officers he had permission to park there and did not object to his car being towed. Moreover, the officers could reasonably infer Cowan did not have permission to leave his car there, given the remote venue and the late-night timing of his mission to steal anhydrous ammonia from

10

the Fowler elevator. Finally, it is not a constitutional requirement that police pursue a less intrusive alternative to impoundment. Huisman, 544 N.W.2d at 439. The officers' impoundment of Cowan's car followed the standardized criteria established by their departments. The inventory search they conducted before the tow truck arrived was reasonable in its scope. Accordingly, the district court properly denied the motion to suppress the methamphetamine found in the back seat. B. Did the State present substantial evidence showing that

Cowan possessed anhydrous ammonia with the intent to manufacture methamphetamine? In his second assignment of error, Cowan challenges the sufficiency of the evidence to prove he violated Iowa Code section 124.401(4)(d). That offense is described in the code as follows: A person who possesses any product containing any of the following commits a class "D" felony, if the person possesses with the intent that the product be used to manufacture any controlled substance: . . . Anhydrous ammonia. Iowa Code

Download STATE OF IOWA, Plaintiff-Appellee, vs. DOYLE WAYNE COWAN, Defendant-Appellant..p

Iowa Law