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IN THE SUPREME COURT OF IOWA
No. 57 / 06-0431 Filed June 15, 2007 STATE OF IOWA, Appellant, vs. TERRY LYNN McGRANE, Appellee.

Appeal from the Iowa District Court for Cerro Gordo County, John S. Mackey, Judge.

State seeks discretionary review of district court decision suppressing drug evidence discovered in defendant's home and his statements admitting ownership of the contraband. AFFIRMED.

Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellant.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellee.

2 STREIT, Justice. Deputy sheriffs arrested Terry McGrane in his home. They had a valid arrest warrant for violating probation. After McGrane was arrested, handcuffed, and seated at the kitchen table, two deputies went to the upstairs area of the home and discovered drugs, cash, and drug paraphernalia. After this initial search, McGrane was taken to jail and the deputies obtained a search warrant. McGrane moved to suppress all of the evidence seized as well as his incriminating statements concerning the evidence. We find the deputies' initial search violated McGrane's

constitutional right to be free from unreasonable searches. The initial search was neither a search incident to arrest nor a valid protective sweep. Moreover, the evidence was not in "plain view." The State failed to prove the evidence was obtained through an independent source. Consequently, the district court properly excluded all of the evidence and incriminating statements under the exclusionary rule. We affirm the district court. I. Facts and Prior Proceedings

On July 14, 2005, Cerro Gordo County Deputy Sheriff Matt Klunder was surveilling a house in Mason City looking for McGrane. McGrane was wanted on an outstanding arrest warrant for violating the terms of his probation. Shortly after 3:00 p.m., Deputy Klunder saw Alberto Ramon, the brother of McGrane's girlfriend, Rosemary Ramon, leave the residence and drive off in a Chevy Blazer. Deputy Klunder knew Alberto's driver's license was suspended so he stopped him. Alberto told Deputy Klunder McGrane was in the house. Being otherwise occupied with the traffic stop, Deputy Klunder called Chief Deputy David Hepperly to let him know McGrane's whereabouts. Deputy Hepperly and Deputy Nathan Ewalt arrived at the house at approximately 3:20 p.m. Deputy Ewalt knocked on the residence's side

3 door, which leads directly into the kitchen. Rosemary's daughter, Melissa Schutz, who was in her early 20s, answered the door. Schutz initially denied McGrane was there. When the deputies told her they had

information he was there, Schutz's demeanor changed and she allowed the deputies to enter the home. The three proceeded into the kitchen area. Around the corner of the kitchen, there was a stairwell leading to the second floor of the one-and-a-half story house. Schutz yelled up the stairs for McGrane. Deputy Hepperly heard someone moving around upstairs and started up the staircase. When Deputy Hepperly was about a third of the way up the stairs, McGrane appeared from behind a bed sheet curtain which was used to cordon off a small storage area to the right of the top of the steps. Deputy Hepperly saw McGrane put something behind the

curtain as he emerged from behind it. Deputy Hepperly informed McGrane of the arrest warrant and ordered him downstairs. McGrane walked down the stairs and into the kitchen. 1 McGrane was told he was being arrested pursuant to the warrant. Deputy Ewalt searched him, placed him in

handcuffs and sat him down on a kitchen chair. According to Deputy Ewalt, McGrane was cooperative at all times. Deputy Hepperly contacted Deputy Klunder and told him McGrane was in custody. Shortly thereafter, Deputy Klunder arrived at the house and Deputy Hepperly told him McGrane tried to hide something behind the curtain upstairs. Deputy Klunder and Deputy Hepperly then went upstairs, leaving McGrane in Deputy Ewalt's custody. The record does not clearly explain the layout of the second level of the residence. It appears the stairway led to an open area and did not include separate rooms or closets. The living area included a bed,

1It is unclear from the record whether Deputy Ewalt exerted physical control over McGrane on the stairway or at the bottom of the stairs.

4 couch/futon, coffee table, and computer stand. While upstairs, Deputy Klunder observed drugs and paraphernalia strewn on the coffee table. The deputy also saw a scale, some baggies on the bed, and "a pillow type item with a zipper on it that had a baggie sticking out of it." Deputy Klunder removed the baggie and found marijuana and cash. Deputy Klunder also saw marijuana in a tray on the computer stand. Meanwhile, from behind the bed sheet curtain, Deputy Hepperly retrieved a small leather pouch, which contained $60 in cash and thirteen small baggies of what appeared to be methamphetamine. Among the general disarray of the upstairs living area, the deputies also found several items of property in unopened packages. Returning downstairs, Deputy Klunder asked McGrane about the items upstairs, and McGrane admitted "there was drug paraphernalia in the upstairs." Sometime following this exchange, Deputy Ewalt took McGrane to the county jail for processing. Deputies Klunder and Hepperly contacted Investigator Logan Wernet of the Mason City Police Department for assistance in applying for a search warrant. Based on the information Investigator Wernet received from them regarding their initial search of the second floor, the surveillance conducted by Deputy Hepperly the day before, and McGrane's criminal history (which included convictions for possession and delivery of drugs), Investigator Wernet applied for and obtained a warrant to search the house for drugs, weapons, and drug-related evidence. The deputies seized multiple baggies of methamphetamine and marijuana, as well as scales, a scanner and various items of drug paraphernalia. At about 10:30 that night, Deputies Hepperly and Klunder interviewed McGrane at the jail. Deputy Klunder read McGrane the McGrane did not

Miranda warning at the beginning of the interview.

5 request counsel at any time during the interview. He made several

incriminating statements concerning the evidence seized from his home. McGrane was charged with three counts: (1) possession of more than five grams of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1) (2005), a class "B" felony, (2) a tax stamp violation under Iowa Code section 453B.12, a class "D" felony, and (3) possession of marijuana as a third or subsequent offense in violation of Iowa Code section 124.401(5), a class "D" felony. McGrane pled not guilty. He alleged the deputies' initial search of his home following his arrest violated his constitutional rights under the Fourth Amendment of the United States Constitution and Article 1, section 8 of the Iowa Constitution. McGrane moved to suppress all evidence seized as well as any statements made by him after his arrest. The State resisted, citing several exceptions to the search warrant requirement. The parties presented evidence at a suppression hearing. The district court granted McGrane's motion to suppress, in its entirety. We granted the State's application for discretionary review. II. Standard of Review

We review constitutional claims de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000), overruled in part on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). This court independently evaluates the defendant's claim under the totality of the circumstances. State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997) (quoting State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995)). The court gives deference to the district court's factual findings due to its opportunity to assess the credibility of witnesses, but the court is not bound by those findings. N.W.2d at 606. Turner, 630

6 III. Merits

McGrane alleges his constitutional right to be free from unreasonable searches and seizures was violated when the deputies searched the second floor of his home after he was arrested because the deputies did not have a search warrant at the time. See U.S. Const. amend. IV; Iowa Const. art. 1,

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