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IN THE COURT OF APPEALS OF IOWA No. 2-253 / 11-0520 Filed June 13, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. GARY ALAN RUSSELL, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, John M. Wright, Judge.

Defendant appeals from the district court denial of his motion to suppress illegal drugs seized from his person, and his subsequent conviction for possession with intent to deliver. AFFIRMED.

Scott Schroeder, Burlington, for appellant. Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Lisa Schaeffer and Tyrone Rogers, Assistant County Attorneys, for appellee.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

2 DANILSON, J. Gary Russell appeals from the district court denial of his motion to suppress illegal drugs seized from his person, and his subsequent conviction for possession with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(2). The evidence from Russell's left pocket was suppressed by

the district court, but we conclude the evidence was obtained pursuant to a valid consent search. Accordingly, the evidence in the right pocket and watch pocket was not "fruit of the poisonous tree."1 We affirm denial of the motion to suppress evidence from the right and watch pockets as it was obtained in a valid search incident to a lawful arrest. Accordingly, we also affirm the subsequent conviction. I. Background Facts and Proceedings. On January 15, 2010, an off-duty West Burlington police officer, Angela Bonar, believed she witnessed a hand-to-hand drug transaction between Russell and an unidentified man at a local bar. Her companion identified Russell as a known drug dealer. Bonar contacted authorities who sent two Burlington officers to investigate. Officers Dale Wyatt and Laura Larger consulted with Bonar upon their arrival at the bar. Bonar identified Russell as the individual she reported. Wyatt's officer microphone recorded the subsequent events, though the quality of the audio recording lacks clarity.

1

As aptly stated in State v. Lane, 726 N.W.2d 371, 380-381 (Iowa 2007): The phrase `fruit of the poisonous tree' refers to indirect or secondary evidence obtained as a result of a prior illegality. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939) (coining the phrase for the first time). Under the doctrine, the `fruits' of the prior illegality are excluded if they were an exploitation of that prior illegality. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed. 441, 455 (1963). Thus, the doctrine operates as an extension of the exclusionary rule.

3 Officer Wyatt asked Russell to step out of the bar. After a brief discussion, Russell consented to a pat-down, which took place out of the view of Wyatt's squad car video camera. Wyatt felt a soft bulge in Russell's left pants pocket. He asked what was in the pocket. Russell responded, "You can pull it out, money." Wyatt then asked, "Can I check it?" The audio then becomes indecipherable, but it is

undisputed that Russell acquiesced. Officer Wyatt believed he had permission to search Russell's entire pocket. Russell now contends he intended to provide limited consent for seizure of the money. Wyatt removed the bulge and discovered a large quantity of money, though the dollar value was unknown. Without another pat-down, Wyatt re-

entered Russell's left pocket and removed a small plastic bag containing white powder. Russell did not object to the re-entry, or withdraw or express a limitation of his consent. While Wyatt reported that he arrested Russell after the entire pat-down was completed, Russell testified that he was arrested after the search of the left pocket. Locking of the handcuffs is audible on the video immediately after the left pocket search. Wyatt obtained consent to search Russell's right pocket, where he found another plastic bag containing white powder. The watch pocket contained

additional contraband. In all, Officer Wyatt confiscated seven plastic bags and two vials of white powder.

4 Russell was charged with possession of a controlled substance with intent to deliver on March 1, 2010. He filed a motion to suppress the evidence seized and sought dismissal of the charge against him. On October 1, 2010, the district court entered a ruling suppressing the controlled substance found in Russell's left pants pocket, finding the officer had limited consent to remove money, but no consent to search the pocket. The court denied the motion to suppress evidence found in the right pocket on the basis of consent and found the search of the watch pocket was supported by probable cause. Russell contends any consent he provided to search the right and watch pockets was not voluntary, and even if there was consent, it was tainted as fruit of the poisonous tree from the unlawful search of the left pocket. Russell filed an application for interlocutory review, which was denied by the Iowa Supreme Court on December 1, 2010. After a bench trial, the court found Russell guilty of possession of a controlled substance with intent to deliver, in violation of section 124.401(1)(c)(2). II. Standard of Review. We conduct a de novo review of a district court's ruling on suppression issues arising from alleged constitutional violations. State v. Lowe, ___ N.W.2d ___, 2012 WL 163027, at *4 (Iowa Jan. 20, 2012). We make an independent evaluation of the totality of the circumstances as shown by the entire record. Id. We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings. Id. III. Discussion. The Fourth Amendment to the United States Constitution provides:

5 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. The language of the Fourth Amendment and article I, section 8 of the Iowa Constitution are substantially identical. Because Russell makes no argument that the federal and state constitutions should be interpreted or applied differently, our discussion applies to both constitutional claims. See Lowe, 2012 WL 163027, at *4. The essential purpose of the Fourth Amendment "is to impose a standard of `reasonableness' upon the exercise of discretion by government officials, including law enforcement agents, in order `to safeguard the privacy and security of individuals against arbitrary invasions . . . .'" Delaware v. Prouse, 440 U.S. 648, 653

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