State of Iowa v. Jeremy Rutter ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2098
Filed December 18, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEREMY RUTTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Linda M.
Fangman (suppression) and David P. Odekirk (trial and sentencing), Judges.
Jeremy Rutter appeals his conviction and sentence for two counts of
possession with intent to deliver and a drug tax stamp violation. AFFIRMED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Robert P.
Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Greer, JJ.
2
GREER, Judge.
Jeremy Rutter appeals his conviction and sentence for two counts of
possession with intent to deliver and a drug tax stamp violation as a habitual
offender. Rutter argues the district court should have granted his motion to
suppress evidence found during a warrantless search of his bedroom. The actions
of Rutter’s girlfriend confirm the search was based on voluntary consent. We
affirm.
I. Background Facts and Proceedings.
Early in the morning on November 20, 2017, Waterloo police arrested Rutter
for eluding. An officer acquainted with Rutter knew he lived in Cedar Falls and
was the sole parent of two children after the children’s mother passed away.1 He
also heard rumors of Rutter’s drug use. When the officer learned of Rutter’s arrest,
he contacted the Cedar Falls police and requested a welfare check on Rutter’s
children. The officer also warned Cedar Falls police there might be drug activity
at the home.
Shortly after four in the morning, Captain Jeff Sitzmann and two additional
Cedar Falls police officers went to Rutter’s home and knocked on the door.2
Mandy Way, Rutter’s girlfriend, answered. Captain Sitzmann asked if he could
check on the children because of Rutter’s arrest. Way agreed and let the officers
into the home. The officers observed the children sleeping in the living room.
1
This officer’s father dates Rutter’s deceased wife’s mother.
2
Police body camera footage captured the entirety of the interaction between officers and
Rutter’s girlfriend.
3
Assured of the children’s safety, Captain Sitzmann then asked if he could
look around the house. Way agreed. Captain Sitzmann asked where the
children’s room was. Way showed him and told him “you can look.” He did.
As they moved from the children’s bedroom, the dialogue continued with
Captain Sitzmann discussing potential drug use with Way and the circumstances
of Rutter’s arrest. Way assured Captain Sitzmann that Rutter was currently sober.
Captain Sitzmann asked if there was anything at the house he should be
concerned about, and Way said no. He then asked, “Can I walk around with you
just real quick?” Way responded, “Sure.” Next, Captain Sitzmann walked through
the dining room and kitchen to the basement steps with Way following. As Captain
Sitzmann descended the basement steps he asked if it was all right to go into the
basement. Way said someone was sleeping in the basement but followed him
downstairs.
Captain Sitzmann knocked on a closed door. The occupant opened the
door. Captain Sitzmann spoke to the individuals sleeping in the basement
bedroom. He asked about the children’s welfare and about any drug use in the
home. Captain Sitzmann looked into the room although he respected the
occupants’ wishes not to search the entire room.
Continuing through the home, Captain Sitzmann asked Way if he could look
through the garage. Way agreed and talked with him as he looked around. After
looking through the garage, he asked about other closed doors in the basement.
Way told him he could open the doors and look. Captain Sitzmann returned to the
basement and looked behind the remaining closed doors while Way stayed
4
upstairs. When he finished he met Way upstairs and continued a discussion about
whether she believed Rutter was using drugs.
As the two talked, he asked Way where the master bedroom was located
and if there was anything in there he should be concerned about. She directed
him to her bedroom. He asked, “Can you go with me, Mandy? I don’t want to get
into any of your private clothing or anything like that, you know?” Way responded
by walking past him, opening the bedroom door, and entering ahead of him. She
watched and talked with him as he looked around the room.
While Captain Sitzmann was looking around, he saw a torch, which he
recognized as something used to manufacture drugs. He also saw a scale with
white residue and told Way he believed it was methamphetamine. He kept looking,
and she denied any knowledge about the drug paraphernalia as he looked. He
then saw a baggie inside a partially opened drawer of a jewelry box. He opened
the jewelry box drawer further to get a better look at the baggie and saw that it
contained white powder consistent with methamphetamine. Captain Sitzmann
asked Way about the baggie, and she said it was Rutter’s.
With knowledge of the bedroom contents, Captain Sitzmann asked for
consent to search the bedroom. Way asked if she could say no, Captain Sitzmann
told her that she could, and then Way refused. The officers secured the residence
and obtained a search warrant. Before the warrant was approved, Sitzmann
entered the room again with another officer to show the officer what he had
observed. Later, with the warrant in hand, the officers searched the entire
bedroom and found suspected methamphetamine, packaging materials, a digital
scale, cash in a safe, and other drug paraphernalia.
5
Rutter was charged with one count of possession with intent to deliver
methamphetamine, second offense, one count of possession with intent to deliver
simulated methamphetamine, and a drug tax stamp violation with a habitual
offender enhancement. He moved to suppress, alleging in part that Captain
Sitzmann’s warrantless search of the home was unconstitutional.3 The court
denied the motion.
Rutter waived his right to a jury trial, and the case proceeded to a trial on
the minutes. The district court found Rutter guilty as charged. The court sentenced
him to indeterminate terms of incarceration not to exceed twenty-five years on
each possession charge and fifteen years on the drug tax stamp violation, run
concurrently, plus fines and surcharges. Rutter appeals.
II. Standard of Review.
We review constitutional claims de novo. State v. Ochoa, 792 N.W.2d 260,
264 (Iowa 2010). “In conducting the de novo review, the court ‘make[s] an
independent evaluation [based on] the totality of the circumstances as shown by
the entire record.’” Id. (quoting State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998)).
III. Analysis.
The Fourth Amendment and article I, section 8 protect people against
unreasonable searches and seizures.4 “When both federal and state constitutional
3
He also argued that the search warrant was unconstitutional but he has abandoned this
claim on appeal.
4
See U.S. Const amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause . . . .”); Iowa Const. art. I, § 8 (“The
right of the people to be secure in their persons, houses, papers and effects, against
unreasonable seizures and searches shall not be violated; and no warrant shall issue but
on probable cause . . . .”).
6
claims are raised, we may, in our discretion, choose to consider either claim first
in order to dispose of the case, or we may consider both claims simultaneously.”
Id. at 267.
A warrantless search is per se unreasonable unless it falls under a specific
exception to the warrant requirement. State v. Jackson, 878 N.W.2d 422, 428
(Iowa 2016). One exception to the warrant requirement is a search based on
voluntary consent. Id. at 429. The State must prove by a preponderance of the
evidence that consent was given and that the consent was voluntary. State v.
Reinier, 628 N.W.2d 460, 465 (Iowa 2001). “The first question turns on whether
the [individual] manifested his or her consent, while the second question examines
the validity of the consent given.” Id.
To begin, Rutter concedes Way had authority to consent to the search of
the bedroom. That said, Rutter argues that (1) Way did not consent or (2) her
consent was not voluntary.
Rutter contends Way did not explicitly consent to the search of the bedroom.
Yet consent need not be verbal to be valid so long as the circumstances establish
valid consent. Id. at 467. Consent “may be found not only by words, but by
gestures and non-verbal conduct.” Id. The scope of consent is limited “by what a
‘typical reasonable person [would] have understood by the exchange between the
officer and the suspect.’” State v. McConnelee, 690 N.W.2d 27, 30 (Iowa 2004)
(quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).
In the analysis, voluntariness is a fact inquiry based on the totality of the
relevant circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
The circumstances establish that Way consented to the search of the master
7
bedroom. After checking on the children, Captain Sitzmann asked if he could take
a look around the house. Way consented, and Captain Sitzmann began walking
through the house, room by room, finally reaching the master bedroom. Although
he asked for express permission to look in the children’s room, the basement, and
the garage, he did not say he intended to limit his search to particular rooms of the
house, and Way did not restrict his search. Throughout the search, Way followed
him and answered his questions. Before entering the master bedroom, Captain
Sitzmann explained his intent to look through the room and asked Way to
accompany him so that he did not get into any of her personal items. She opened
the door for him, allowed him into the bedroom, watched him look around, and
talked to him as he did so. The act of opening a door and stepping back can
constitute consent. Reinier, 628 N.W.2d at 467 (citing several federal cases). For
these reasons, we conclude Way consented to the search of the master bedroom.
We must next decide whether her consent was voluntary.
Lacking any testimony from Way during the suppression hearing, we
consider the totality of the circumstances as reflected by the body cam’s recording
system to determine whether the consent was voluntary under the Iowa
Constitution. See State v. Pals, 805 N.W.2d 767, 782 (Iowa 2011). “Consent is
considered to be voluntary when it is given without duress or coercion, either
express or implied.” Reinier, 628 N.W.2d at 465. The State carries the burden to
prove consent was voluntary by a preponderance of the evidence. State v. Garcia,
461 N.W.2d 460, 462 (Iowa 1990). We consider several factors including “the
circumstances surrounding the consent given and the characteristics of the”
individual giving consent. Reinier, 628 N.W.2d at 465–66 (citations omitted). The
8
individual’s age, mental ability, intoxication, and knowledge of legal protections for
criminal defendants are all relevant; we also consider the location of the search
and whether the individual objected to the search. State v. Lowe, 812 N.W.2d 554,
572–73 (Iowa 2012) (quoting United States v. Golinveaux, 611 F.3d 956, 959 (8th
Cir. 2010)). We ask whether the individual knew they could refuse consent,
whether police asserted authority to search, and whether the police used force,
coercion, or deception to gain consent, including threats to get and execute a
warrant when police lack a sufficient basis for a warrant. Reiner, 628 N.W.2d at
465–66.5 No one factor is controlling.
Our de novo review is supported by the bodycam conversations and Way’s
demeanor and actions. Based on that review, we conclude her consent to the
search was voluntary. Way is an adult, was in her own home, acknowledged she
was sober, and appeared calm throughout the search. While she accompanied
the officers for part of the search, at times she left the officers alone while she
remained upstairs. Captain Sitzmann’s tone throughout the search was calm and
conversational, and he did not threaten her, was clear about his concerns that
Rutter was using drugs, and did not assert authority to search. Even when asked
about the bedroom, Way voluntarily moved ahead of the officer, opened the door,
and led him into the room. Her actions show consent. Until the discovery of drug
materials, Way did not object to the search but cooperated with the officers and
answered their questions throughout the search.
5
The Iowa Supreme Court has not answered whether the police must advise an individual
of their right to decline to consent to a search to establish consent under the Iowa
Constitution. See, e.g., Pals, 805 N.W.2d at 782.
9
Finally, Rutter asserts that under the Iowa Constitution one factor to
consider is whether law enforcement advised Way of her right to refuse the
warrantless search. He also contends that the search unconstitutionally expanded
beyond the welfare check purpose. Pals, 805 N.W.2d at 775–78. It remains
uncontested that law enforcement knew drug activity might be present in a home
where children resided without a present parent. The home check related to
legitimate safety concerns plus the reasonable suspicion of alleged criminal
activity. While Way was not specifically told she had a right to refuse any search
request, “it is not a prerequisite for obtaining voluntary consent,” and without other
factors suggesting threats, pressure, or coercion, the State has met its burden. Id.
at 777. Based on the totality of the circumstances, we conclude Way’s consent
was voluntary and was not unconstitutional under the Fourth Amendment or article
I, section 8. The district court properly denied Rutter’s motion to suppress.6
IV. Disposition.
For the above stated reasons, we affirm Rutter’s conviction and sentence.
AFFIRMED.
6
In his appellate brief, Rutter makes a passing reference to Captain Sitzmann’s entry into
the master bedroom after Way revoked her consent to search but before obtaining a
search warrant. Rutter does not claim that this search expanded upon the consent search
or that it led to the officers finding any additional incriminating evidence.