State v. Horton , 625 N.W.2d 362 ( 2001 )

LARSON, Justice.

Nannette Horton appealed her conviction for possession of marijuana, Iowa Code section 124.401(5) (1997), claiming her trial counsel was ineffective for failing to raise a timely motion to suppress evidence. The court of appeals affirmed, concluding that because there was no merit in her claim of an illegal search, a timely motion to suppress would not have been successful. On further review, we agree with that conclusion and therefore affirm the decision of the court of appeals and the judgment of the district court.

I. Facts and Prior Proceedings.

Horton was a passenger in a compact pickup truck owned and operated by Timothy Wilkins. The pickup was stopped by Waterloo police officers for a license plate violation. Wilkins was unable to produce proof of insurance, so he was ordered out of the vehicle to remove his license plates. An officer asked Wilkins if he had any contraband in the vehicle, and Wilkins said there were some “roaches” (marijuana cigarettes) in the pickup ashtray. An officer then opened the driver-side door, looked into the cab of the pickup, and saw marijuana butts in plain view in the ashtray. Based on this, the officer ordered Horton out of the vehicle and asked her to empty her pockets (a police department practice for a Terry search when male officers search females).¹ Horton pulled out the bag of marijuana that led to this prosecution. The driver was charged with possession of the marijuana in the ashtray.

II. Issues.

Horton assigns a single issue: the denial of her motion to suppress evidence of the unsmoked marijuana she pulled from her pocket. The district court denied the motion on the ground it was untimely under Iowa Rule of Criminal Procedure 10(2)(c) and (4) (motions to suppress to be filed “when the grounds therefor reasonably appear but no later than forty days after arraignment”).

Horton claims her lawyer provided ineffective assistance of counsel by failing to file a timely motion to suppress. If she can establish ineffective assistance of counsel, of course, she is not precluded from raising the motion-to-suppress issue on appeal. See State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). The State responds she was not denied effective assistance of counsel, and in any event, there would have been no merit in a motion to suppress because (1) Horton consented to the search when she emptied her pockets for the officer, and (2) the search was valid as incident to arrest.

III. Disposition.

We tend to agree with Horton that her compliance with the officer’s request for her to empty her pockets does not amount to a consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875 (1973) (“[W]hen ... the State attempts to justify a search on the basis of ... consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.”).

In response to the State’s search-inei-dent-to-arrest argument, Horton claims the marijuana roaches in the ashtray, presumably midway between the two seats, cannot be the basis for an arrest because “[t]here was no reasonable and particularized suspicion that [she] had violated the law until she emptied her pockets at the direction of law enforcement,” and “[t]he record indicates that she was not under arrest until after she obeyed [the officer’s] commands.”

Horton was not formally arrested until after the “pat down” search that revealed the bag of unsmoked marijuana. However, the timing of the formal arrest is not fatal to the search. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633, 645-46 (1980) (“Where the 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 preceded the arrest rather than vice versa.”); see also State v. Peterson, 515 N.W.2d 23, 25 (Iowa 1994). In Peterson we said “a search incident to an arrest need not be made after a formal arrest if it is substantially contemporaneous with it, provided probable cause for the arrest existed at the time of the search.” Peterson, 515 N.W.2d at 25. In this case, Horton’s formal arrest “followed quickly on the heels of the challenged search of [the defendant’s] person.” Rawlings, 448 U.S. at 111, 100 S.Ct. at 2564, 65 L.Ed.2d at 645-46.

Horton also argues that the marijuana butts in the ashtray could not provide a basis for her arrest because “[l]aw enforcement seems to have imputed [the driver’s] admission, and subsequent verification of the existence of marijuana in the truck ashtray, to Ms. Horton.” Further, she argues “the actions of the driver cannot be attributed to the passenger.” Finally, she quotes Illinois v. Wardlow for the proposition that “[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576 (2000) (holding, in a Terry stop case, that unprovoked flight, in addition to presence in a high-crime area, did constitute grounds for an investigatory stop).

However, the State does not rely on the driver’s admission nor does it attempt to “impute” the admission to this defendant. Rather, the State relies on Horton’s consent to the search and on probable cause (based on her proximity to the marijuana butts) to justify the search. We have already rejected the consent argument, so the sole question is whether the marijuana butts provided probable cause to arrest her.

Probable cause exists when the facts and circumstances within the arresting officer’s knowledge would warrant a person of reasonable caution to believe that an offense is being committed.

State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997). For probable cause

[t]he police need not have firm evidence which might lead to a conviction, or even to an indictment, but merely sufficient information to cause a reasonable man to believe that [the] defendant was involved in [a crime].

State v. Freeman, 297 N.W.2d 363, 366 (Iowa 1980). This is so because “[w]hat constitutes probable cause should be resolved on probabilities based on practical considerations, not on legal technicalities.” Id. at 365.

It has long been the law that probable cause to search a car does not justify the search of a passenger. See United States v. Di Re, 332 U.S. 581, 584-87, 68 S.Ct. 222, 223-25, 92 L.Ed. 210, 215-16 (1948). But that is not the case here. The State argues the evidence in the ashtray gave probable cause to arrest the defendant, totally independent of the grounds for arresting the driver or searching his vehicle. Here, the question is whether the presence of the spent marijuana in the pickup ashtray would be sufficient to “cause a reasonable man to believe” somebody was involved in the illegal use or possession of marijuana. Thus, the probable-cause question is boiled down to whether the marijuana roaches point to this defendant, the driver, both, or neither.

While it is clear probable cause need not rise to the level of proof required for conviction, or even indictment, it requires “more than bare suspicion.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949); see 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(e), at 60 (3d ed.1996) [hereinafter LaFave], Professor LaFave asks rhetorically:

[W]hat degree of probability [is required]? Specifically, is it necessary that the particular matter under consideration (i.e., that a crime has been committed, that a particular person has committed it, that evidence of crime is to be found in a particular place, or that a particular object is evidence of crime) be more probable than not, or will something short of this suffice?

LaFave § 3.2(e), at 60. With respect to the issue in the present case (i.e., whether the roaches pointed to Horton), LaFave states:

One way in which the problem arises is when the police are investigating a known crime and obtain information concerning the offender, which does not point exclusively to one particular individual, in which case the question is whether they may nonetheless arrest a person or perhaps two or more persons from the suspect class.

Id.

Addressing multiple-suspects problems, Professor LaFave notes:

There is commentary supporting the conclusion that probable cause does not mean more-probable-than-not, at least with respect to the identity of a particular individual as the probable offender. The Torts Restatement puts this situation:

A sees B and C bending over a dead man, D. B and C each accuse the other of murdering D. A is not sure that either B or C did the killing, but he has a reasonable suspicion that either B or C killed D. A is privileged to arrest either or both.

Id. at 64 (emphasis added) (quoting Restatement (Second) of Torts § 119 cmt. i (1965)). Professor LaFave continues:

Moreover, the arrest provisions in the Model Code of Pre-Arraignment Procedure permit arrest “without requiring that at the time of the arrest the guilt of the person to be arrested be more probable than not.” The draftsmen [of the Code] explain this as follows:

An arrest standard more stringent than reasonable cause would, to be sure, provide increased assurances against interferences by the police with the liberty of innocent persons. It is a premise of the Code, however, that society would and should be unwilling to pay the price in less efficient crime prevention and prosecution which this assurance would entail. If the “more probable than not” standard were adopted and taken seriously, many arrests made, for instance, on the basis of a victim’s or witness’s description would be illegal. The description which a victim gives of an assailant will very rarely justify an officer in believing that a person who appears to correspond to that description is more probably than not guilty of the assault. To approach this degree of certainty, the victim needs an opportunity to identify the suspect, perhaps even in the carefully controlled context of a lineup. If, however, such a description is not sufficient basis for arrest, an officer in the field must allow the suspect to disappear, and allow to disappear with him a possibility for solving the particular case and for imprisoning a dangerous offender. Present law does not require this conclusion, and the Code also would not.

There is much to be said for the model code position. If the function of arrest were merely to produce persons in court for purposes of the prosecution, then a more probable than not test would have considerable appeal. But there is also an investigative function which is served by the making of arrests.

LaFave § 3.2(e), at 64-65 (emphasis added) (quoting Model Code of Pre-Arraignment Procedure 14 (1975)).

Cases involving probable-cause issues under circumstances similar to this case have not required specific identity when two or more possible suspects are involved. For example, State v. Mitchell, 167 Wis.2d 672, 482 N.W.2d 364 (1992), involved two individuals in a car in which someone had been smoking marijuana. The court said:

Based on the presence of both the odor of marijuana and the smoke, Officer Smith had reason to believe that defendant, his passenger, or both had been smoking marijuana, and thus possessing, marijuana. The fact that there were two occupants in the vehicle is not fatal to a finding of probable cause to arrest defendant because probable cause does not mandate that it is more likely than not that the defendant committed the offense. We hold that, based on the marijuana odor and smoke inside the vehicle, Officer Smith had probable cause to arrest defendant and therefore the arrest was lawful.

Id. at 684, 482 N.W.2d at 368-69 (citation omitted).

In Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990), arresting officers could not initially establish which of two individuals had committed a crime. The court reversed an order that had suppressed the evidence, stating

we must take issue with the trial judge’s commentary on probable cause. We do not agree that the police could never have probable cause to arrest two persons if only one person has committed the crime. “While the law requires that probable cause have a fairly narrow focus, thereby precluding, for example, dragnet operations, we do not believe that the focus must in all situations narrow down to a single suspect....” Under some circumstances, there may be probable cause to believe that either of two suspects was the perpetrator of the criminal act.

Id. at 176, 575 A.2d at 578 (citation omitted).

In State v. Jordan, 36 Or.App. 45, 583 P.2d 1161 (1978), the Oregon court noted that, while officers may lawfully arrest more than one person, considerations of reasonableness limit the number of persons that may be arrested; a dragnet would not be allowed. In Jordan officers went to a house to serve an arrest warrant, but because the women there would not truthfully identify the subject to be served, the officers were not sure who they should arrest. The defendant argued they could not arrest more than one. The Oregon court said in this interesting observation:

The underlying assumption of defendant’s theory is that probable cause is finite and, if it is expended on one suspect, there cannot be enough left for another suspect. That theory is no more tenable than would be its opposite: that with probable cause, as with love, there is always plenty for everybody. The statement of principle most harmonious with the fundamental predicate of the Fourth Amendment, reasonableness, fits between those two extremes.

Id. at 48, 583 P.2d at 1163. The Oregon court continued:

Probable cause may justify the arrest of more than one person. If, for example, a policeman sees A and B bending over a dead man and each accuses the other of killing the victim, there is probable cause for the arrest of either or both and the arrest of A does not preclude the arrest of B. Similarly, if A is found one block north of a recently robbed bank and matches the description of the robber, the arrest of A does not preclude the subsequent arrest of B who also matches the description and is found one block south of the bank.

Id. at 49, 583 P.2d at 1163 (emphasis added).

In People v. Sutherland, 683 P.2d 1192 (Colo.1984), two occupants of a vehicle were involved in an accident, and both had alcohol on their breath. Each accused the other of being the driver. The court held the officers had probable cause to arrest both of them and obtain blood samples. Sutherland, 683 P.2d at 1196.

The officers in Horton’s case could have reasonably believed the marijuana had been smoked by Horton, her companion, both, or perhaps neither. Mere proximity to the marijuana butts will not support a conviction of constructive possession under our cases, see State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000), but the issue here is not whether there was sufficient evidence to convict, or even indict, Horton. The issue is whether the evidence “would warrant a person of reasonable caution to believe that an offense is being committed.” Ceron, 573 N.W.2d at 592. We believe a reasonably cautious person would be warranted in believing Horton was in possession of marijuana, and this satisfies the test for probable cause to arrest and search her. Close proximity to contraband, especially when it is in plain view, is sufficient to justify a suspect’s arrest, at least for further investigation. There was no merit in defendant’s motion to suppress, therefore she was not prejudiced by the untimely nature of the motion. Horton’s ineffeetive-assis-tance-of-counsel claim cannot, therefore, be sustained.

We affirm the decision of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except SNELL, J., who dissents.

1 . This procedure is not challenged on appeal, and we express no opinion on the legality of it.