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IN THE SUPREME COURT OF IOWA
No. 90 / 04-1271 Filed April 20, 2007 STATE OF IOWA, Appellee, vs. KENNETH DALE CARTER, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Webster County, Fredrick E. Breen, District Associate Judge.

Defendant appeals from conviction of possession of marijuana in violation of Iowa Code section 124.401(5) (1997). DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

Mark C. Smith, State Appellate Defender, Shellie L. Knipfer, Assistant State Appellate Defender, and Travis Johnson, Drake Student Intern, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Timothy N. Schott, County Attorney, and Jonathan Beaty, Assistant County Attorney, for appellee.

2 LARSON, Justice. Kenneth Carter appealed his conviction for drug possession, claiming that evidence seized from his home was erroneously admitted into evidence. The district court rejected his argument, as did the court of appeals. On further review, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand. I. Facts and Prior Proceedings. Kenneth Carter was charged with drug offenses based on evidence seized in a March 1997 search of his home. That case was dismissed on application of the State and is not involved in this appeal. After the case was dismissed, the Iowa Department of Revenue and Finance (department) began proceedings under Iowa Code chapter 453B (1997) to collect drug taxes in the amount of $6060, based on Carter's possession of marijuana plants observed during the March 1997 search. Despite the fact that the criminal case arising out of that possession had been dismissed, the department, on December 4, 1997, obtained an administrative search warrant to search Carter's home again. A representative of the department and a police officer served the warrant and, in the process, noted marijuana odor and a marijuana pipe. Based on this information, the police officer applied for, and obtained, a criminal search warrant to search Carter's home again. This search yielded the marijuana that provided the basis for the present prosecution. Carter was convicted, and he appealed. His conviction was affirmed by this court in an unreported decision in 1999. In that decision, we reserved his ineffective-assistance claim for possible postconviction relief proceedings. On Carter's postconviction application, the district court set aside his conviction and ordered a new trial. Prior to the new trial, Carter filed a motion to suppress, claiming that the marijuana evidence was seized in

3 violation of his federal and state constitutional rights. The motion did not provide specific grounds for the constitutional arguments, but the district court at the hearing on the motion put the issue in sharp focus: My understanding is that the legal issue is rather narrowly defined, that says if the officer had the right to be in the place where he was when he made the observations at the time of the execution of the administrative warrant, then the criminal warrant is not invalid. If, on the other hand, he had no right to be where he was because of something improper about the execution or granting of the administrative warrant, then the criminal warrant is no good. As the district court noted, the administrative search warrant provided the basis for the later issuance of the criminal warrant. Carter contends that the administrative warrant was invalid, and the evidence seized as a result of it was therefore inadmissible under the principle of fruit of the poisonous tree. II. Standard of Review. We review challenges to the constitutionality of a statute de novo. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005). Statutes are presumed to be constitutional, and a challenger must prove unconstitutionality beyond a reasonable doubt. Id.; Schroeder Oil Co. v. Dep't of Revenue & Fin., 458 N.W.2d 602, 603 (Iowa 1990). The challenger must refute every

reasonable basis upon which the statute could be found constitutional, and if the statute may be construed in more than one way, we adopt the construction that does not violate the constitution. Iowa Code

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