IN THE COURT OF APPEALS OF IOWA

No. 16-1614

Filed November 8, 2017

STATE OF IOWA,

Plaintiff-Appellee,

Appeal from the Iowa District Court for Black Hawk County, David P.

Odekirk, Judge.

A defendant appeals his convictions for possession of methamphetamine

with intent to deliver and possession of clonazepam with intent to deliver.

AFFIRMED.

Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

MCDONALD, Judge.

Roy Halverson appeals his convictions for possession of

methamphetamine with intent to deliver, in violation of Iowa Code section

124.401(1)(c) (2015), and possession of clonazepam with intent to deliver, in

seizure. He also argues there is insufficient evidence to support his

methamphetamine conviction.

I.

One night, the Cedar Falls Police Department received a report a man,

later identified as Halverson, tried to pull a teenaged girl into a secluded area of

an apartment complex. It was also reported the man tried to sell drugs in the

apartment complex.

The police responded to the report and, upon arriving at the complex,

located a group of people outside the complex, including the teenaged girl. The

they should go into the main portion of the apartment complex. The teen was

scared. Once inside the main portion of the apartment complex, the girl

witnessed Halverson offer to sell drugs to her brother and his friends, who

happened to be in the main portion of the complex. Halverson unscrewed the

back of a flashlight and pulled out several clear baggies, some containing pills

and others containing a white substance. Halverson told the girl’s brother “one

was better than the other.”

After listening to the teen’s recollection of events, the responding officer

found no weapons, but she did find three cell phones, several condoms, a

keychain with a pill vial attached, and a mini flashlight. The officer opened the pill

vial and discovered several pills. She placed these items on the front of her

cruiser and arrested Halverson. Once at the police station, the flashlight was

opened and the drugs inside were identified as methamphetamine and

clonazepam. The methamphetamine was packaged into multiple baggies.

Halverson was charged with three counts: count I, possession of

methamphetamine with intent to deliver; count II, attempting to entice a minor;

and count III, possession of clonazepam with intent to deliver. Halverson moved

on the minutes of testimony, the district court convicted Halverson on counts I

and III.

II.

We first address Halverson’s search-and-seizure claim. The Fourth

Amendment to the United States Constitution and article I, section 8 of the Iowa

Constitution protect the right to be free from unreasonable searches and

under the circumstances presented. See Pennsylvania v. Mimms, 434 U.S. 106,

always ‘the reasonableness in all circumstances of the particular governmental

invasion of a citizen’s personal security.’” (citation omitted)); State v. Kreps, 650

N.W.2d 636, 641 (Iowa 2002) (“The Fourth Amendment imposes a general

reasonableness standard upon all searches and seizures.”).

A search incident to arrest is reasonable within the meaning of the Fourth

Amendment and article I, section 8 of the Iowa Constitution. See State v.

Peterson, 515 N.W.2d 23, 25 (Iowa 1994) (“[W]e hold that in the case of a lawful

custodial arrest a full search of the person is not only an exception to the warrant

requirement of the Fourth Amendment, but is also a ‘reasonable’ search under

that Amendment.” (quoting United States v. Robinson, 414 U.S. 218, 235

warrant.’” State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008) (citation

omitted). The scope of the search is limited to “circumstances in which the

security of an arresting officer is implicated . . . or when the arrested person is

within reach of contraband and thus able to attempt to destroy or conceal it.”

the time of the search, evidence seized remains admissible pursuant to the

the search was conducted incident to Halverson’s arrest. Halverson contends

this was error because the arresting officer lacked probable cause to arrest him.

We disagree. “Probable cause is present ‘if the totality of the circumstances as

viewed by a reasonable and prudent person would lead that person to believe

that a crime has been or is being committed and that the arrestee committed or is

committing it.’” State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005) (citation

omitted). The officer testified she was going to arrest Halverson for at least

simple assault, presumably based on the teen’s claims that Halverson grabbed

her, pulled her toward a dark portion of the apartment complex, and intimated he

based on practical considerations).

Halverson contends the search-incident-to-arrest doctrine is inapplicable

here because he could not have been arrested without a warrant for the offense

of simple assault. Specifically, Iowa Code section 804.7(3) authorizes a

warrantless arrest only for an indictable offense, and simple assault is not an

indictable offense. This claim is not preserved for appellate review. Halverson

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (setting forth error

under section 804.7(3) “is lawful if the facts available to the officer at the time of

arrest provide reasonable ground for believing an indictable offense has occurred

and the arrestee committed it—even if the officer announces a lesser offense as

the reason for the arrest.” Veatch v. City of Waverly, 858 N.W.2d 1, 9 (Iowa

2015). The officer testified she intended to arrest Halverson for at least simple

assault, there were reasonable grounds to believe an indictable offense occurred

based on the teen’s account that Halverson threatened her with a gun, although

he ultimately was not in possession of a gun, and as evidenced by Halverson’s

eventual charge for attempting to entice a minor. Halverson’s argument is thus

search. As a general matter, we note litigants frequently make the request to

interpret article I, section 8 “more strictly” or “more broadly” than the Fourth

Amendment. It is true that “[d]epending upon the particular issue, our precedents

interpreting article I, section 8 may provide greater or lesser protection than

4543957, at *1 (Iowa Ct. App. Aug. 31, 2016). However,

[t]he right question, is not whether a state’s guarantee is the same

as or broader than its federal counterpart as interpreted by the

Supreme Court. The right question is what the state’s guarantee

means and how it applies to the case at hand. The answer may

Id. at *2 (quoting Hulit v. State, 982 S.W.2d 431, 437 n.11 (Tex. Crim. App.

1998)).

Turning to the specific question presented, we question whether this issue

was preserved for appellate review. Regardless, on the merits, we decline the

invitation to deviate from established federal law. “We usually interpret the scope

and purpose of the Iowa Constitution’s search and seizure provisions to track

with federal interpretations of the Fourth Amendment.” Christopher, 757 N.W.2d

at 249. Halverson has not presented any compelling rationale to deviate from

established law in the area, and we see none. The touchstone of any Fourth

(“Where [a] formal arrest followed quickly on the heels of the challenged search

of petitioner's person, we do not believe it particularly important that the search

Neither the connotation nor the denotation of the word “incident” demands the

conclusion that a search “incident” to arrest can be conducted only immediately

after formal arrest. Instead, the search only need be “connected with” the formal

directed to the supreme court for constitutional relief or the legislature for

statutory relief. See Spencer v. Philipp, No. 13-1887, 2014 WL 4230223, at *2

(Iowa Ct. App. Aug. 27, 2014) (“As a general rule, the task of materially altering

substantive or procedural rights is best left to the General Assembly or the

Supreme Court of Iowa.”).

For the foregoing reasons, we affirm the district court’s denial of

Halverson’s motion to suppress evidence. Because we conclude the search at

issue was lawfully conducted incident to Halverson’s arrest, we need not address

his claims regarding the application of the doctrine of inevitable discovery.

or about April 30, 2015, Halverson in Black Hawk County, Iowa knowingly

possessed methamphetamine; 2) Halverson knew that the substance he

possessed was methamphetamine; and 3) Halverson possessed the substance

Halverson only challenges the sufficiency of the evidence supporting the third

element.

“Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A verdict is upheld

beyond a reasonable doubt.” Id. at 76. In conducting our review, “we view the

evidence in the light most favorable to the State, including legitimate inferences

and presumptions which may fairly and reasonably be deduced from the

evidence in the record.” State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006).

When the evidence is viewed in the light most favorable to the State, there

is sufficient evidence Halverson intended to deliver the methamphetamine. Here,

the teenager saw Halverson pull out a baggie of pills and another baggie with a

white substance from the flashlight and try to sell them to her brother and his

friends. She also heard Halverson state one was better than the other, indicating

an inference the methamphetamine was packaged for resale. See State v.

Grant, 722 N.W.2d 645, 648 (Iowa 2006). While Halverson is correct that there

was no evidence he was carrying enough cash to infer he was in the business of

selling methamphetamine, the fact is not dispositive. The issue is whether the

evidence, when viewed in the light most favorable to the State, establishes guilt

beyond a reasonable doubt. Here it does.