State of Iowa v. Michael Howard Belieu ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0134
Filed October 28, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL HOWARD BELIEU,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Kevin Parker
(motion to suppress), Richard B. Clogg (trial), and Susan Cox (sentencing),
District and District Associate Judges.
A criminal defendant appeals his conviction challenging the denial of his
motion to suppress. AFFIRMED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Tyler J. Buller,
Assistant Attorneys General, John Criswell, County Attorney, and Douglas A.
Eichholz and Richmond Alexander Crabb, Assistant County Attorneys, for
appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
TABOR, Judge.
Michael Belieu appeals from his conviction for possession of marijuana,
claiming law enforcement violated his constitutional protection against
unreasonable search and seizure when an officer discovered contraband in the
bedroom used by Belieu in his grandfather’s home. Because we conclude his
grandfather had authority to consent to the search, we affirm.
I. Background Facts and Proceedings
On August 1, 2013, Gayland McDole called law enforcement to report he
had been assaulted by his nineteen-year-old grandson, Michael Belieu.
Sergeant Eldon Emmick of the Warren County Sheriff’s Department went to the
McDole home. Belieu was not there. McDole told the sergeant his grandson
lived there but had not been paying rent, despite some expectation that he
would. McDole described going into his grandson’s bedroom to wake him
because he was supposed to be at work and then chastising him because his
girlfriend was staying over in violation of a no-contact order. McDole told the
sergeant that “some pushing and shoving took place.” McDole also told the
sergeant he suspected Belieu had been using drugs “given his attitude and
actions.” McDole then gave permission for Sergeant Emmick to search the
home.
McDole identified Belieu’s bedroom as the last door at the end of the hall.
Sergeant Emmick found the door to Belieu’s room “standing open.” Inside the
bedroom on the dresser, Emmick found a smaller canister in a felt bag holding a
grinder for processing marijuana. In the same location, the sergeant found small
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electronic scales and a green metal pipe, “[b]oth of which had a green leafy
substance on them.” The substance later tested positive as marijuana.
The State charged Belieu with possession of marijuana, first offense, a
serious misdemeanor, in violation of Iowa Code section 124.401(5) (2013).
Belieu moved to suppress the contraband found during the warrantless search of
his bedroom. The motion cited both the Fourth Amendment of the United States
Constitution and Article I, Section 8 of the Iowa Constitution. The district court
held a suppression hearing at which Sergeant Emmick was the only witness.
The court denied the motion to suppress, concluding McDole had authority to
consent to the search of Belieu’s bedroom. Belieu waived his right to a jury trial
and proceeded to a trial on the minutes of testimony. On October 30, 2014, the
district court found Belieu guilty beyond a reasonable doubt. The sentencing
court imposed no jail time, but required Belieu to pay a fine of $750 plus
surcharges and costs. Belieu now appeals.
II. Standard of Review
The constitutional claims underlying the motion to suppress require de
novo review. See State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013). This review
involves “an independent evaluation of the totality of the circumstances as shown
by the entire record.” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) (citation
and internal quotation marks omitted).
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III. Analysis
A. Preservation of Error
Before we begin our analysis, we address the State’s argument that
Belieu’s claim is limited to the Fourth Amendment. The State first contends
Belieu did not preserve a challenge under Article 1, Section 8 because the district
court did not address the Iowa Constitution. See Meier v. Senecaut, 641 N.W.2d
532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that
issues must ordinarily be raised and decided by the district court before we will
decide them on appeal.”). Alternatively, the State argues if error was preserved
in the district court, it is waived on appeal because Belieu does not advocate for
a more protective standard under the state constitution. See State v. Lyon, 862
N.W.2d 391, 398 (Iowa 2015).
We conclude Belieu preserved his claim under both the state and federal
constitution in his motion to suppress. See State v. Gaskins, 866 N.W.2d 1, 6
(Iowa 2015) (“When there are parallel constitutional provisions in the federal and
state constitutions and a party does not indicate the specific constitutional basis,
we regard both federal and state constitutional claims as preserved. . . . Even in
these cases in which no substantive distinction had been made between state
and federal constitutional provisions, we reserve the right to apply the principles
differently under the state constitution compared to its federal counterpart.”). We
also read his appellate brief, citing State v. Pals, 805 N.W.2d 767, 779 (Iowa
2011), as entertaining the possibility of “greater protection of a guest’s search
and seizure rights” under the Iowa Constitution.
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“Generally, the rights contained in the Fourth Amendment and the Iowa
Constitution are deemed to be identical in scope, import, and purpose.” State v.
Fleming, 790 N.W.2d 560, 564 (Iowa 2010) (internal quotation marks omitted).
But our courts reserve the right to apply a more rigorous test under our state
constitution. Gaskins, 866 N.W.2d at 6.
B. Consent Search
Belieu argues Sergeant Emmick was without authority to search his
bedroom and improperly opened the container he found on the dresser. We
employ a two-step approach to determine if the officer’s actions violated Belieu’s
rights under the Fourth Amendment1 or article I, section 8.2 See State v. Lowe,
812 N.W.2d 554, 567 (Iowa 2012). “First, we decide whether the person
challenging the search has shown a legitimate expectation of privacy in the area
searched. If so, we then consider whether the State has unreasonably invaded
that protected interest.” Fleming, 790 N.W.2d at 564.
Belieu points out that overnight guests have a legitimate expectation of
privacy in their host’s home, see State v. Naujoks, 637 N.W.2d 101, 107 (Iowa
1
The Fourth Amendment reads:
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,
supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
2
The section reads:
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, supported by
oath or affirmation, particularly describing the place to be searched, and
the persons and things to be seized.
Iowa Const. art. I, § 8
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2001), and asserts he was “far more” than an overnight guest in his grandfather’s
home. We agree Belieu had a legitimate expectation of privacy in his bedroom
and consider the second question, whether law enforcement unreasonably
invaded his protected interest.
Sergeant Emmick did not have a search warrant. To be reasonable,
searches executed without warrants must fall within a recognized exception to
the warrant requirement. See State v. Kelly, 284 N.W.2d 236, 238 (Iowa 1979).
Consent is one of those exceptions. Id. Consent to search “may be given by a
third party who possesses common authority over or other sufficient relationship
to the premises.” See State v. Bakker, 262 N.W.2d 538, 546 (Iowa 1978) (citing
United States v. Matlock, 415 U.S. 164, 171 (1974)). The authority to consent
may be actual or apparent. Lowe, 812 N.W.2d at 576. Apparent authority will
validate a search where the officer reasonably believes the person who has
consented has the authority to do so. Id. The question is whether the facts
available to the officer at the time of the search would warrant a reasonably
cautious person in the belief that the consenting party had authority over the
place to be searched. Id.
In this case, McDole gave Sergeant Emmick permission to search his
entire two-bedroom residence. Emmick knew McDole was a valid occupant of
the residence. But Belieu argues the consent search was invalid because the
incriminating items found were in Belieu’s separate bedroom which had a door
with a lock. Belieu asserts although he “could expect his grandfather to have
guests, it is not reasonable to expect that his grandfather would allow said guests
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to enter [Belieu]’s room and search through [Belieu]’s personal belongings and
things concealed.”
Iowa case law does not support Belieu’s position. The district court aptly
relied on State v. Don, 318 N.W.2d 801 (Iowa 1982), in deciding the grandfather
had authority to consent to the search of Belieu’s bedroom. In Don, our supreme
court found a father had authority to consent to a search of his nineteen-year-old
son’s room in the basement of his home. 318 N.W.2d at 804 (noting authority
stemmed from mutual use of the property by persons having joint access and
control). The Don court explained the father never went to the basement due to
knee problems, but the father owned the home and “insisted no one could keep
him out of any part of it.” Id. The court also noted the son did not pay rent and
lived in the home as “an ordinary family member.” Id.
Given the similarity of the facts before us, Don dictates our result on the
Fourth Amendment question. McDole allowed Belieu, his nineteen-year-old
grandson, to occupy a bedroom in the grandfather’s residence. McDole told
Sergeant Emmick that Belieu did not pay rent. Compare Fleming, 790 N.W2d. at
566, with Don, 318 N.W.2d at 804. McDole also shared with the sergeant that
McDole maintained access to Belieu’s room—having been in there earlier that
day to roust his grandson from bed. Moreover, the door to the bedroom was
unlocked and standing open at the time the sergeant entered. Using an objective
standard, the sergeant could have reasonably believed McDole had authority to
consent to the search of the bedroom. See Lowe, 812 N.W.2d 576. The
situation faced by Sergeant Emmick was not so ambiguous as to require
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additional questioning of McDole. Contra State v. Grant, 614 N.W.2d 848, 854
(Iowa Ct. App. 2000) (requiring further inquiry where couple found sleeping
naked in bedroom of third party’s residence and police could not tell relationship
between parties or what belonged to whom). We conclude the consent search of
Belieu’s bedroom was valid under the Fourth Amendment.3
Belieu also focuses on the fact that Sergeant Emmick opened a container
to find the grinder used to process marijuana. The district court clarified in the
suppression ruling that the sergeant saw the scales and drug paraphernalia in
plain view which gave him cause to open the canister found in proximity to the
other incriminating items. The court cited State v. Dickerson, 313 N.W.2d 526,
532 (Iowa 1981), which held that officers who were in a place they had a right to
be did not intrude on the defendant’s reasonable expectation of privacy by their
visual observations. Whether the sergeant had valid consent to search the
closed container depends upon McDole’s common authority over the items on
the dresser, or mutual use of the property, or whether the grandfather generally
had joint access or control for most purposes. See Matlock, 415 U.S. at 171-
172. But we do not need to reach the question of consent to search the closed
container, because the sergeant found marijuana on the other items in plain
view.
3
A majority of other jurisdictions take this same view. See Wayne R. LaFave, 4 Search
& Seizure: A Treatise on the Fourth Amendment § 8.4(b) Consent by parent (5th ed.)
(collecting cases and noting even when the offspring have reached adulthood, courts are
disinclined to find that the son or daughter had exclusive possession of a particular room
in the parents’ residence).
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Finally, we turn to the question whether article I, section 8 of the Iowa
Constitution requires a different resolution. We recognize that in Fleming, our
supreme court relied on the state constitution to find a violation of the defendant’s
protected interest in his rented bedroom which was searched pursuant to a
warrant for the house he shared with the target of the police investigation. 790
N.W.2d at 563. The Fleming court rejected the community living exception to the
need for a separate warrant, reasoning: “when single, unrelated persons live
together in a house, the kitchen, living room, bathroom, hallways and entryways
are communal space, but the individual bedrooms remain private.” Id. at 567.
Fleming does not control the state constitutional question here. Fleming did not
involve an issue of authority to consent to the search of a bedroom where a close
family member was staying rent free. Belieu has not provided us with any reason
to interpret the state constitutional provision any differently than the Don court
interpreted the Fourth Amendment. See Lowe, 812 N.W.2d at 577. Accordingly,
we agree with the district court’s denial of the motion to suppress, and affirm
Belieu’s conviction.
AFFIRMED.