State of Iowa v. Gregory Francis Tennant , 919 N.W.2d 635 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0648
Filed May 2, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GREGORY FRANCIS TENNANT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson (trial),
Judge, and Mark R. Fowler (pre-trial), District Associate Judge.
Defendant appeals his convictions for possession of a controlled substance,
marijuana, and operating without registration. AFFIRMED.
Thomas A. Hurd of Glazebrook & Hurd, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
Gregory Tennant was convicted of possession of marijuana, in violation of
Iowa Code section 124.401(5) (2016), and operating without registration or without
certificate of title, in violation of Iowa Code section 321.98(1)(a), a simple
misdemeanor. The defendant filed notices of appeal following the entry of
judgment for both convictions. The supreme court treated Tennant’s notice of
appeal from the misdemeanor conviction as an application for discretionary review,
granted the application, and ordered the cases be consolidated into this appeal.
On appeal, Tennant maintains the district court violated his right to speedy trial
and erred in denying his motion to suppress evidence. In a pro per brief, Tennant
raises several additional claims.
This case arose out of what should have been a fairly routine police-citizen
encounter. Police officers responded to a report that a large group of motorcyclists
were driving dangerously throughout the city and that one of the motorcyclists may
have assaulted a motorist. The officers located the motorcyclists, many of whom
were in costumes, at a local gas station. One officer observed a man, now known
to be Tennant, dressed in a Super Mario costume, putting gas into a motorcycle.
The motorcycle did not have a license plate. The officer approached Tennant to
inquire further. Tennant stated he did not talk to police and ignored the officer.
Tennant refused to identify himself, refused to answer questions regarding the
motorcycle, and refused to explain the lack of license plate or registration for the
motorcycle. The officer arrested Tennant for the registration plate violation and for
harassment for refusing to provide information regarding his identity. At the police
station, the officer searched Tennant incident to arrest and discovered a baggie of
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marijuana in Tennant’s pant pocket. Tennant was ultimately charged and
convicted for possession of marijuana and operating without registration.
In his first claim of error, Tennant contends the district court erred in
overruling his motion to dismiss based on an alleged violation of Tennant’s right to
speedy trial. Iowa Rule of Criminal Procedure 2.33(2)(b) provides, “If a defendant
indicted for a public offense has not waived the defendant's right to a speedy trial
the defendant must be brought to trial within 90 days after indictment is found or
the court must order the indictment to be dismissed unless good cause to the
contrary be shown.” Pursuant to the rule and case law, “a criminal charge must
be dismissed if the trial does not commence within ninety days from the filing of
the charging instrument unless the State proves (1) defendant's waiver of speedy
trial, (2) delay attributable to the defendant, or (3) ‘good cause’ for the delay.’”
State v. Winters, 690 N.W.2d 903, 908 (Iowa 2005). The good-cause inquiry
focuses on “only one factor: the reason for the delay.” Id. Surrounding
circumstances, including the length of the delay, whether the defendant asserted
his or her right to a speedy trial, and whether prejudice resulted from the delay are
relevant “only to the extent they relate directly to the sufficiency of the reason itself.”
Id. We review the district court’s ruling for an abuse of discretion. See Winters,
690 N.W.2d at 907. However, the discretion afforded the district court in this
circumstance is tightly circumscribed. See id. “The discretion to avoid dismissal
in a criminal case is limited to the exceptional circumstance where the State carries
its burden of showing good cause for the delay.” Id. at 907–08.
In this case, Tennant was charged by trial information with possession of
marijuana on November 16, 2016. Tennant pleaded not guilty and demanded
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speedy trial. Tennant’s trial was scheduled to commence on December 12, 2016.
After Tennant filed a pro se motion to suppress evidence, the district court
rescheduled trial for February 6, 2017. At the pretrial conference held on February
2, the State requested a continuance because the State’s critical witness, the
arresting officer, had a prescheduled vacation. The State sought a trial date one
day after the officer’s return. This requested trial date, February 27, was thirteen
days beyond the speedy-trial deadline. The district court granted the motion to
continue over Tennant’s objection. The district court scheduled the trial for March
due to Tennant’s unavailability. The district court concluded the unavailability of
the essential witness was sufficient “cause” within the meaning of the rule to grant
the State’s motion to continue over Tennant’s objection.
The district court did not abuse its discretion in denying Tennant’s motion
to dismiss. Here, the unavailable witness was central to the State’s case. The
witness was unavailable due to a scheduled vacation and not because of any
action attributable to the State. There is no evidence the State waited to disclose
this information until the last minute or to prejudice the defendant. The defendant
suffered no actual prejudice: the delay was short, only a few weeks beyond the
speedy-trial deadline; and the defendant was at liberty. In similar circumstances,
the supreme court has recognized the unavailability of a witness constitutes good
cause within the meaning of the rule where there is only a short delay in trial. See
State v. McNeal, 897 N.W.2d 697, 704–05 (Iowa 2017) (finding good cause where
key expert witness was unavailable); State v. Petersen, 288 N.W.2d 332, 335
(Iowa 1980) (holding absence of witness can be good cause especially when the
delay is short and the defendant is not prejudiced). Other states have reached the
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same conclusion. See, e.g., Otte v. State, 967 N.E.2d 540, 546 (Ind. Ct. App.
2012) (“The absence of a key witness through no fault of the State is good cause
for extending the time period requirements. Such absence may be due to a long-
planned vacation.”); State v. Workman, 2008 WL 2020370, at *2 (Minn. Ct. App.
May 13, 2008) (“Normally, the unavailability of a witness constitutes good cause
for delay.”); Jackson v. State, 924 So.2d 531, 544 (Miss. Ct. App. 2005) (“In the
present case, the State has shown good cause for requesting a continuance
because Love was an essential witness, and because Love's failure to appear was
not due to any action by the State.”); Commonwealth v. Weaver, 525 A.2d 785,
788 (Pa. Super. Ct. 1987) (“[W]hen a witness becomes unavailable towards the
end of the Rule 1100 run date-due to illness, vacation, or other reason not within
the Commonwealth's control, the Commonwealth is prevented from commencing
the trial within the requisite period despite due diligence, and an extension of time
is warranted.”); State v. Kindell, 326 P.3d 876, 882 (Wash. Ct. App. 2014)
(“Scheduling conflicts such as a preplanned vacation and the unavailability of
witnesses constitute valid grounds to continue a trial date under CrR 3.3(f)(2).”);
State v. Grilley, 840 P.2d 903, 904–05 (Wash. Ct. App. 1992) (“The right to a
speedy trial is a significant right. However, if conflicts with previously scheduled
vacations of investigating officers could never be considered as a proper basis for
a relatively brief continuance beyond the speedy trial period, we doubt that some
officer witnesses would ever be able to take vacations.”). The district court did not
abuse its discretion in denying the motion to dismiss.
In his pro per brief, Tennant argues the district court erred in denying his
motion to suppress evidence on the ground the arrest that led to the search of
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Tennant’s person was invalid. Our review of the denial of a motion to suppress
evidence is de novo. See State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).
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 seizures. The touchstone of any search-and-seizure claim is
reasonableness under the circumstances presented. See Pennsylvania v.
Mimms, 434 U.S. 106, 108–09 (1977) (“The touchstone of our analysis under the
Fourth Amendment is 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 (1973))). A
search incident to arrest “allows a police officer ‘to search a lawfully arrested
individual's person and the immediately surrounding area without a warrant.’”
State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008).
Iowa Code section 804.7(3) authorizes a peace officer to make an arrest for
a public offense committed in the officer’s presence and allows “a peace officer to
make an arrest without a warrant [w]here the peace officer has reasonable ground
for believing that an indictable public offense has been committed and has
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reasonable ground for believing that the person to be arrested has committed it.
The ‘reasonable ground for belief’ standard within section 804.7(3) is tantamount
to probable cause.” See State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005).
“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.”
Id.Tennant was arrested for operation without registration in violation of Iowa
Code section 321.98 and harassment of a public official in violation of Iowa Code
section 718.4. Tennant contends his arrest for harassment was unfounded, but
he does not challenge his arrest for the violation of section 321.98. The
unchallenged arrest is sufficient grounds authorizing the search incident to arrest.
Even if Tennant had challenged the arrest for the violation of section 321.98, the
challenge would have failed. Iowa Code section 321.98 provides that “a person
shall not operate . . . any vehicle required to be registered and titled under this
chapter unless . . . a valid registration card and registration plate or plates issued
for the vehicle for the current registration year are attached to and displayed on
the vehicle.” Here, the officer observed Tennant filling up the gas tank of a
motorcycle without a registration plate attached to the vehicle. There were no
other potential operators near the motorcycle or Tennant. Upon inquiry, Tennant
refused to provide the vehicle registration or any information regarding the vehicle.
The officer had probable cause to believe Tennant had and was operating a
vehicle without a registration plate attached to the vehicle and had probable cause
to arrest Tennant for the same. Because the arrest was lawful, there was no basis
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to invalidate the search. The district court did not err in denying the motion to
suppress evidence.
Tennant raises several additional arguments in his pro per brief and his pro
per reply brief. He challenges the personal and subject matter jurisdiction of the
courts. He contends his right to be indicted by a grand jury was violated. He
contends there was fraud upon the court because there is no “Corpus Delecti” and
no evidence of an injured person. He raises a standing claim. Tennant also
contends there was juror misconduct due to one conspiracy related to the
criminalization of having a license plate frame that blocks or obscures the county
name and a second conspiracy related to a chiropractic college’s “appeasement
policy of silence on the explosive issue revealing the Risks and Failures of
Vaccinations.” We have reviewed each of the pro per claims, whether or not
explicitly identified herein, and we conclude none provide an entitlement to any
relief.
We affirm Tennant’s convictions.
AFFIRMED.