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IN THE COURT OF APPEALS OF IOWA No. 7-704 / 07-0116 Filed December 12, 2007

STATE OF IOWA, Plaintiff-Appellee, vs. RAVIN CORNELIUS MILLER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire (trial) and Charles H. Pelton (motion to suppress), Judges.

Ravin Miller appeals his judgment and sentence for possession of marijuana with intent to deliver and failure to affix a drug tax stamp. REVERSED.

Mark C. Smith, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, William E. Davis, County Attorney, and Robert Weinberg, Assistant County Attorney, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

2 VAITHESWARAN, J. Ravin Miller appeals his judgment and sentence for possession of marijuana with intent to deliver and failure to affix a drug tax stamp. He argues there was insufficient evidence to support the jury's finding that he possessed marijuana. He also challenges the validity of a search warrant. We conclude the first issue is dispositive and requires reversal of Miller's judgment and sentence. I. Background Facts and Proceedings Davenport police officers executed a search warrant on the downstairs apartment of a duplex. The duplex had a common front door with separate private doors inside the entryway. Almost immediately before the search team arrived, two men came out of the duplex and drove away. Officers stopped their car, determined that the men were Kenneth Phillips and Kenneth Parish, and executed arrest warrants on both men. Officers found $1493 in cash on Phillips as well as a cell phone and a set of keys fitting the common door and the door to the downstairs apartment of the duplex. As officers were arresting Phillips and Parish, Miller and a man later identified as Keith Aurthur came out of the front door of the duplex and walked toward the back of the house next door. The two did not appear to be carrying anything. Miller and Aurthur were apprehended about two blocks north of the duplex. Miller had $735 in cash and, like Phillips, keys to the common door and the door to the downstairs apartment in the duplex. Aurthur had $428 in cash and a small amount of marijuana.

3 Officers later followed the path they saw Miller and Aurthur take when the two left the duplex. On the ground, they found a plastic bag containing marijuana packaged in four separate plastic baggies. Meanwhile, officers searched the downstairs apartment of the duplex. The empty apartment was filled with "a big cloud of marijuana smoke." In the living room, officers found a partially-smoked marijuana blunt in an ashtray and a tray containing marijuana stems and seeds. In the kitchen, officers found two vacuum-sealed plastic bags containing large quantities of compressed marijuana. On the counter were a digital scale, a box of plastic baggies, and marijuana residue. In one bedroom, officers found a pair of boots and a pair of jeans with "R Miller" written inside. The State jointly charged Miller and Aurthur with possession of marijuana with intent to deliver and failure to affix a drug tax stamp. Iowa Code

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