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IN THE COURT OF APPEALS OF IOWA No. 8-920 / 08-0107 Filed December 17, 2008

STATE OF IOWA, Plaintiff-Appellee, vs. TERRY LYNN McGRANE, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Cerro Gordo County, John S. Mackey (motion to suppress), James M. Drew (trial), and Colleen D. Weiland (sentencing), Judges.

Defendant appeals his conviction for possession of a controlled substance with intent to deliver, contending the district court improperly denied his motion to suppress. AFFIRMED.

Mark C. Smith, State Appellate Defender, and E. Frank Rivera, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellee.

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

2 MAHAN, J. Terry McGrane appeals from judgment entered upon his conviction of possession of a controlled substance with intent to deliver. He contends the district court erred in denying his motion to suppress because: (1) the supporting affidavit did not provide a sufficient basis for a finding of probable cause and (2) the application failed to establish the reliability and veracity of sources relied upon by applicant officer. We affirm. I. Background. A Cerro Gordo magistrate was presented with an application for a search warrant prepared by Mason City police officer David Tyler. The application

sought to search the dwelling and garage of Terry McGrane and Rosemary Ramon Peters (Ramon) expecting to find certain stolen property and/or drugs and evidence of drug dealing and use. In his affidavit, Officer Tyler stated that on February 23, 2007, he had authored a search warrant application to search Nick Wilmarth and his residence for stolen items from recent burglaries; Wilmarth was subsequently interviewed and admitted committing numerous burglaries and trading the stolen items for drugs; one of the trade locations named by Wilmarth was the home of McGrane and Ramon; Wilmarth indicated specific stolen items he had traded there for methamphetamine or marijuana, including "a Craftsman Powerdrill, a Sony receiver, an Ultra Violet Cannondale bicycle, a red Cannondale bicycle, Sockets and wrenches"; "Wilmarth made the statements against his penal interests" after Miranda warnings were given; and Wilmarth had seen one of the Cannondale bicycles at the McGrane/Ramon house two days prior. Officer Tyler also stated McGrane had two prior drug convictions: a 1995

3 "felony conviction for cocaine" and a 2004 "conviction for delivery of methamphetamine." Also attached to the warrant application was the affidavit of North Central Iowa Narcotic Task Force Officer Logan Wernet, which describes the typical conduct of drug dealers and users, including that "drug dealers commonly have stolen property in their possession" that is "usually traded for narcotics" and includes such items as "bicycles, electronics, tools, jewelry and money." The magistrates endorsement finding probable cause to issue a search warrant cited the sworn testimony of Officer Tyler, specifically that portion of the application which stated: Wilmarth admitted committing numerous burglaries in recent weeks (prior warrant taken into consideration as well). Wilmarth stated that this home was location of some of stolen property--trade in exchange for methamph. or marijuana. McGrane has history of drug convictions. "Trades" have been made recently. On February 24, 2007, the search warrant was executed. The search of the McGrane/Ramon residence pursuant to that warrant resulted in the seizure of drugs, drug paraphernalia, cash, and stolen property. McGrane and Ramon

were charged with possession with intent to deliver a Schedule II controlled substance. McGrane filed a motion to suppress, alleging the warrant was not supported by probable cause. McGrane later joined Ramons amended motion to suppress, alleging the warrant application omitted material facts that would cast doubt on the existence of probable cause. Specifically, the defendants

contended the warrant application omitted the fact that Wilmarth was under the influence when he was being interviewed.

4 The district court held a hearing on the motions to suppress at which officer Steve Klemas testified that he had conducted the February 23, 2007 interview of Nicholas Wilmarth as part of a burglary investigation after a string of recent burglaries in eastern Mason City. Officer Klemas testified: I believed that was possible for [Wilmarth] to be under the influence based on the commission of the crimes prior to that night. I believe he was stealing things to supplement his drug problem. Other than that, there was no signs of intoxication in the sense of speech, balance, recollection, things of that issue. Officer Klemas also testified: Q. And when he was giving you that interview this evening at the police station, did in fact you approach him and ask him whether or not he was under the influence at the time? A. I believe I questioned him very early on, yeah, in reference I was trying to determine the level of impairment or of intoxication, if there was any question there. Q. Were there verbal cues or visual cues that led you to believe that he was under the influence at the time? A. No. The reason I believed is based on my experience. A lot of folks that go out and commit burglaries and theft are stealing for their drug problem, and some prior history that I had gotten during the course of the investigation led me to believe that Nick is stealing to support his. As far as him saying any verbal or nonverbal communication to alert me that he was impaired, I didnt have any. Officer Klemas testified that Officer Tyler watched at least some of the interview from a nearby room through a DVR camera system. He stated he and Officer Tyler did discuss where items Wilmarth had taken had gone; they did not discuss the issue of Wilmarth being under the influence. Officer Klemas testified that he "felt Mr. Wilmarth was sober enough to conduct an interview and ascertain or gain information from him and I found out through the course of it it was reliable."

5 The district court denied the motion to suppress, concluding there was probable cause to issue the warrant. The court noted that the magistrate relied on a very detailed and specific affidavit and the details contained in the warrant established the named informants reliability. The court found the fact that

Wilmarth "was high" could go directly to his reliability. Nonetheless, the court concluded that under the totality of the circumstances, the warrant application was supported by probable cause. McGrane appeals. II. Validity of the Search Warrant. A. Probable Cause. McGrane contends the search warrant was

defective because the affidavit did not provide a sufficient basis for a finding of probable cause. We disagree. Based upon the warrant application presented here, a person of reasonable prudence could believe stolen property or illegal drugs and indicia of drug sales would be found at McGranes residence. The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961) (stating the Fourth Amendment to the federal constitution is binding on the states through the Fourteenth Amendment to the federal constitution). The language of article I, section 8 of the Iowa Constitution is nearly identical to the language of the Fourth Amendment; therefore, we "usually deem the two provisions to be identical in scope, import, and purpose." State v. Kreps, 650 N.W.2d 636, 640-41 (Iowa 2002).

6 The Fourth Amendment requires a search warrant to be supported by probable cause. U.S. Const. amends. IV, XIV,

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