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IN THE SUPREME COURT OF IOWA
No. 25 / 04-1327 Filed May 19, 2006 STATE OF IOWA, Appellee, vs. JESSE LEE SIMMONS, Appellant.

Appeal from the Iowa District Court for Page County, James S. Heckerman (motion to suppress), Timothy O'Grady (trial), and J.C. Irvin (sentencing), Judges.

Defendant appeals his conviction and sentence for manufacturing methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (2003). AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Richard Davidson, County Attorney, and Paul Walter and Tony Almquist, Assistant County Attorneys, for appellee.

2 WIGGINS, Justice. The defendant was found guilty of manufacturing methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (2003). In this appeal, the defendant challenges the district court's ruling on his motion to suppress as to the items seized from his apartment and the statements he made to police officers. Additionally, he claims his trial counsel provided ineffective assistance of counsel by failing to challenge the constitutionality of a sentencing statute, Iowa Code section 901.10(2). Because we find the

defendant's claims are without merit, we affirm the judgment of the district court. I. Background Facts and Proceedings. At approximately 11:37 p.m. on December 3, 2003, police officer Jesse Hitt responded to a complaint of loud music coming from apartment eight of Parkview Apartments in Clarinda, Iowa. The access to the

apartments is from the outside, requiring Hitt to go up an outside set of stairs and then enter a door into a hallway where the apartments are located. While he was at apartment eight, Hitt smelled what he suspected to be anhydrous ammonia coming from apartment nine across the hall. Hitt did not perceive an emergency to prompt him to evacuate the apartment building when he first detected the odor. Hitt went to the police station and contacted lieutenant Keith Brothers at his home at approximately 12:08 a.m. Having safety concerns for the tenants of the apartment building and fearful of a potential fire or explosion, Brothers advised Hitt to contact sergeant David Rine, a state-certified clandestine methamphetamine lab expert. Brothers wanted Hitt and Rine to go to the apartment building so Rine could verify the odor as that of anhydrous ammonia. Brothers further advised Hitt if Rine believed a working

3 methamphetamine lab was inside the apartment, he should knock, announce, and make entry without a warrant. Hitt contacted Rine at his home and they met at the police station. They and another officer went to the apartment building at 12:43 a.m. Rine confirmed the odor in the hallway was that of anhydrous ammonia. Rine was not aware of any legitimate purpose for possessing anhydrous ammonia in an apartment, but he knew it is used to manufacture methamphetamine. Rine also knew the risks created by a methamphetamine laboratory include fires created from the fumes, chemical exposures, inhalation exposures from the toxic fumes, and waste products left over from the chemical reactions. Rine further knew these risks not only affect the people making the methamphetamine, but also affect other residents in a multipleoccupant dwelling. Hitt knocked on the door and a woman asked who was there. Hitt announced it was the police. The woman then asked what they wanted. Hitt responded they were there for a safety check because they could smell anhydrous ammonia, and said the door needed to be opened immediately. Receiving no response, Hitt knocked again because the officers could hear something in the apartment, and advised her to open the door or they would force it open. At this time, Rine became concerned about the strong odor of anhydrous ammonia. Rine did not know whether there was a working methamphetamine lab or a container leaking anhydrous ammonia. He was worried about the safety of the occupants of the apartment as well as the safety of the other occupants of the building. Again receiving no response from the occupants of the apartment, the officers forcibly entered the apartment with guns drawn. anhydrous ammonia was strong. The odor of

The officers observed Cindy Cordell

4 standing in the middle of the room and ordered her to get down on the floor. The defendant, Jesse Lee Simmons, walked into the room from the back of the apartment. Rine had his gun pointed at Simmons. The strong smell of anhydrous ammonia caused Rine's eyes to water. Rine asked Simmons if there was an active methamphetamine lab in the apartment. Simmons responded there was. Rine asked where the lab was located and Simmons told him it was in the bathroom. Rine then asked what stage it was in to determine the chemicals and risks involved. Simmons answered by stating the lab was in the first rinse stage, the lab belonged to him, and Cordell was not involved with the lab. The officers handcuffed Cordell and Simmons, removed them from the apartment, and gave them decontamination suits to wear. Due to the risk of chemical exposure, Rine was unable to conduct a safety sweep of the apartment at that time. He was not concerned about other individuals being in the apartment because either Cordell or Simmons told him no one else was in the apartment. Rine closed the door to the apartment. The officers also evacuated the occupants of apartment eight. Rine then contacted dispatch, performed a perimeter sweep of the building for other risks, and discussed a possible evacuation of the remainder of the building with the fire chief. He reentered the apartment in protective gear with a second lab tech to conduct a safety sweep and remove the containers and chemicals from the apartment. Upon reentry, Rine tested the anhydrous ammonia levels in the apartment. The levels were almost three times the acceptable OSHA levels for short-term exposure. The officers found, among other items, a glass one-gallon container in the bathtub containing a bluish tinted liquid, a funnel, and a blue shop towel. There was also some off-white sludge residue in the bathtub. The officers

5 removed these items and preserved them as evidence. After neutralizing the problem in the apartment by removing the hazardous items and ventilating the apartment, the officers left the apartment and waited for Brothers' instructions. Brothers arrived at the apartment building twenty to thirty minutes after the initial entry into the apartment. Simmons was in handcuffs and accompanied by an officer. Upon seeing Simmons, Brothers said, "[H]ello, Jesse, what's going on." Simmons responded by repeating what he told Rine, that the lab was all his and Cordell had nothing to do with it. Later, Brothers talked to Simmons again. This conversation took place in a police car. After Brothers advised Simmons of his Miranda rights, Simmons again stated the lab was his and Cordell had nothing to do with it. Brothers talked to Cordell when she was in a police car. Brothers asked her to consent to a search of the apartment. She eventually did so after some discussion between her and Brothers. After receiving Cordell's consent, Rine entered the apartment for a third time and collected nonhazardous items used in the methamphetamine-making process. Simmons was charged with two counts: (1) conspiring or acting with others to manufacture, deliver, or possess more than five grams of a schedule II controlled substance (methamphetamine) with intent to manufacture or deliver in the presence of a minor and within one thousand feet of certain real property, in violation of Iowa Code sections 124.401(1)(b)(7), 124.401A, and 124.401C(1), (2)(b)-(c), 2(e); and (2) unlawful possession of a precursor substance in violation of Iowa Code section 124.401(4)(b). The State filed an amendment to the trial information alleging Simmons was a habitual offender in count two in violation of Iowa Code sections 902.8 and 902.9(3).

6 Simmons pled not guilty and filed a motion to suppress evidence and a waiver of jury trial. He subsequently filed an amended motion to

suppress. The district court overruled the motion to suppress. The parties submitted the case to the court based on the minutes of testimony in order to preserve Simmons' right to appeal the suppression ruling. The State agreed to amend count one by deleting all enhancing charges and dismiss count two. The court found Simmons guilty of

manufacturing methamphetamine in violation of Iowa Code section 124.401(1)(b)(7), a class "B" felony. The court sentenced Simmons to a term of imprisonment not to exceed twenty-five years. Simmons appeals. II. Issues. There are two issues on appeal: (1) whether the district court erred in overruling Simmons' motion to suppress evidence as to the search of the apartment and the statements made to officers; and (2) whether Simmons' trial counsel provided effective assistance of counsel in regards to the failure to challenge the constitutionality of Iowa Code section 901.10(2). III. Scope of Review. The first issue presented in this case is whether the district court erred in not suppressing certain physical evidence and statements. Simmons claims the district court should have granted his motion to suppress based on the federal and state constitutions; therefore, our review is de novo. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). This review requires us to " `make an independent evaluation of the totality of the circumstances as shown by the entire record.' " State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001) (citation omitted). We give deference to the factual findings of the district court due to its opportunity to evaluate the credibility of the witnesses, but we are not bound by such findings. Id.

7 The second issue presented in this case is whether Simmons' trial counsel provided effective assistance of counsel in regards to the failure to challenge the constitutionality of Iowa Code section 901.10(2). Simmons asserts his ineffective-assistance-of-counsel claim based on the federal and state constitutions. Although these claims are typically preserved for

postconviction relief actions, "we will address such claims on direct appeal when the record is sufficient to permit a ruling." State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). IV. Analysis. A. The initial search of the apartment. Simmons asserts the initial search of the apartment was in contravention of the Fourth Amendment to the United States Constitution. The Fourth Amendment assures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Fourth Amendment is binding on the states through the Fourteenth Amendment of the federal constitution. Freeman, 705 N.W.2d at 297. Simmons also asserts the search violated article I, section 8 of the Iowa Constitution. That section guarantees "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated." Iowa Const. art. I,

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