State of Iowa v. Anthony Eugene English

IN THE COURT OF APPEALS OF IOWA

No. 14-1724
Filed December 23, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ANTHONY EUGENE ENGLISH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink

(suppression) and Karen A. Romano (trial and sentencing), Judges.

The defendant appeals the district court’s order denying his motion to

suppress and challenges the sufficiency of the evidence supporting his

conviction. AFFIRMED.

Kevin E. Hobbs, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General.

Considered by Danilson C.J., McDonald, J., and Goodhue, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2

MCDONALD, Judge.

Following a trial on the minutes, the defendant Anthony English was

convicted of possession of a controlled substance with intent to deliver, in

violation of Iowa Code section 124.401(1)(c)(3) (2013), and failure to possess a

tax stamp, in violation of Iowa Code sections 453B.3 and 453B.12. On appeal,

English challenges the order denying his motion to suppress evidence obtained

after an allegedly unlawful traffic stop and search of his person. He also

challenges the sufficiency of the evidence supporting his conviction for

possession of a controlled substance with intent to deliver.

I.

Between midnight and three in the morning on March 12, 2014, Officer

Nicolino was surveilling a suspected drug activity house. Nicolino observed a

Chevy Avalanche truck leave the house. Suspecting the driver of the truck was

involved in drug activity, Nicolino followed. Nicolino observed white light emitting

from the left rear brake lamp and observed the vehicle cross the centerline of the

street. Nicolino activated the emergency lights of his vehicle to initiate a traffic

stop, but the driver of the Avalanche did not stop. Nicolino activated the vehicle

siren, but the driver of the Avalanche continued ahead for several blocks before

stopping. Because the driver had not pulled over and stopped in a reasonable

period of time, Nicolino requested backup. As Nicolino approached the stopped

vehicle, the driver put his license or identification outside the window and then

rolled the window up. Nicolino instructed the driver to turn off the truck ignition

and roll the window down. When Nicolino asked the driver where he had come
3

from, the driver provided false information. While the driver, now determined to

be Anthony English, nervously searched through the glove box for the vehicle

registration and proof of insurance, one of the backup officers who had arrived at

the scene observed a large knife inside the glove box. Nicolino then instructed

English to exit the truck for a pat-down frisk.

While Nicolino was conducting the pat-down frisk, English took evasive

action to avoid the frisk and conceal something on his person. At the

suppression hearing, Officer Nicolino testified when he reached the waistband of

English’s pants, English repeatedly moved forward in a crouching motion “as if

he was maybe concealing something and didn’t want me patting down that area

of his person.” Despite English’s evasive action, Nicolino felt a bulge on the front

left side of English’s pants. Nicolino told English he believed English was

concealing something in his pants and he was going to handcuff English and

check. English said, “That’s fine. Go ahead.”

Nicolino escorted English away from his vehicle and towards Nicolino’s

patrol car to conduct a more thorough search. Nicolino pulled up English’s jeans,

which English wore low below his waist, and shook them. When Nicolino patted

down the front of English’s jeans, Nicolino did not feel the bulge in the left front.

Nicolino shined his flashlight down inside English’s jeans, but he did not see any

item or items secreted away. At that point, Nicolino removed the handcuffs and

told English he was free to leave. English initially was reluctant to move away

from the patrol car. When he finally stepped away, Nicolino and one of the

backup officers immediately saw a bag of crack cocaine on the ground where
4

English had been standing. English was handcuffed and placed in the patrol car.

English said the cocaine was not his and claimed the officers were trying to

frame him by planting the drugs. When the police wagon arrived to take English

to jail, Nicolino searched English more thoroughly and discovered another bag of

prepackaged crack cocaine concealed in English’s underwear underneath his

testes. The first bag contained four “rocks” of crack cocaine weighing about 0.6

grams. The second bag contained eight more rocks of crack cocaine weighing

about 1.4 grams.

II.

We review the denial of a motion to suppress based on the claimed

deprivation of the defendant’s constitutional right against unlawful searches de

novo. See State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010). We make an

independent evaluation based on the totality of circumstances shown in the

entire record. See id. Although English raises his claims under both the Federal

and Iowa Constitutions, he does not argue for a different standard under the Iowa

constitution. “Where a party raises issues under the Iowa Constitution and the

Federal Constitution, but does not suggest a different standard be applied under

the Iowa Constitution, we generally apply the federal standard.” State v.

Edouard, 854 N.W.2d 421, 452 (Iowa 2014).

Review of challenges to the sufficiency of the evidence is for the

correction of legal error. See State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996).

We view the “‘evidence in the light most favorable to the State, including

legitimate inferences and presumptions that may fairly and reasonably be
5

deduced from the record evidence.’” State v. Williams, 695 N.W.2d 23, 27 (Iowa

2005) (quoting State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005)).

A.

English challenges the initial traffic stop. “When a peace officer observes

a traffic offense, however minor, the officer has probable cause to stop the driver

of the vehicle.” State v. Harrison, 846 N.W.2d 362, 365 (Iowa 2014). “‘The

motivation of the officer stopping the vehicle is not controlling in determining

whether reasonable suspicion existed. The officer is therefore not bound by his

real reasons for the stop.’” Id. (quoting State v. Kreps, 650 N.W.2d 636, 641

(Iowa 2002)). Officer Nicolino cited two traffic offenses as justification for the

stop: English crossed the center line of the road, a violation of section 321.306;

and Nicolino observed the left rear brake lamp emit white light, a violation of

sections 321.387 (rear lamps) and 321.404 (signal lamps). The traffic violations

here are sufficient grounds to support the traffic stop. See State v. Kinkead, 570

N.W.2d 97, 100 (Iowa 1997).

English argues the evidence does not support a finding that the brake light

was defective. Specifically, English argues the brake light was repaired with red

tape such that white light could not have emitted from the brake light. The district

court received into evidence photographs of the rear of the vehicle at issue, and

there is no white light emitting from the left rear brake lamp. However, none of

the photographs were taken with the brakes activated. The photographs are thus

largely immaterial to the issue. Officer Nicolino testified he observed white light

emitting from the brake light. The district court credited this testimony over
6

English’s contrary assertion. We defer to the district court’s credibility

determination. See State v. Lowe, 812 N.W.2d 554, 566 (Iowa 2012) (“Because

of the district court’s opportunity to evaluate the credibility of witnesses, we will

give deference to the factual findings of the district court.”).

B.

English contends Officer Nicolino unlawfully expanded the scope and

duration of the traffic stop when Officer Nicolino instructed English to exit the

vehicle and when Officer Nicolino conducted a pat-down. “A seizure for a traffic

violation justifies a police investigation of that violation. A relatively brief

encounter, a routine traffic stop is more analogous to a so-called ‘Terry stop’ . . .

than to a formal arrest.” Rodriguez v. United States, 135 S. Ct. 1609, 1614

(2015). “Like a Terry stop, the tolerable duration of police inquiries in the traffic-

stop context is determined by the seizure’s mission—to address the traffic

violation that warranted the stop and attend to related safety concerns.” Id.

Thus, “once a motor vehicle has been lawfully detained for a traffic violation, the

police officers may order the driver to get out of the vehicle without violating the

Fourth Amendment’s proscription of unreasonable searches and seizures.”

Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977). “[T]he government’s

legitimate and weighty interest in officer safety outweigh[s] the de minimis

additional intrusion of requiring a driver, already lawfully stopped, to exit a

vehicle.” Rodriguez, 135 S. Ct. at 1615. In addition to officer safety, if “the

detainees’ responses or actions raise suspicions unrelated to the traffic offense,
7

the officer’s inquiry may be broadened to satisfy those suspicions.” State v.

Bergmann, 633 N.W.2d 328, 335 (Iowa 2001).

Officer Nicolino had legitimate grounds to expand the scope of the traffic

stop. Nicolino observed English leaving a suspected drug activity house in the

middle of the night. English failed to pull over and stop in a reasonable amount

of time after Officer Nicolino activated his lights and siren. Officer Nicolino was

sufficiently concerned that he called for backup. English displayed nervous and

odd behaviors as Officer Nicolino approached the vehicle. For example, English

stuck his license or identification on the outside of the window and rolled the

window up. English provided false information to Nicolino when Nicolino asked

English where he had come from. The officers observed a large knife in the

open glove box. We conclude the expansion of the traffic stop was justified by

concerns for the officers’ safety and by reasonable suspicion of other criminal

activity. See State v. Merrill, 538 N.W.2d 300, 302 (Iowa 1995) (holding furtive

movements coupled with other suspicious circumstances can be sufficient to

establish probable cause); State v. Scott, 405 N.W.2d 829, 832 (Iowa 1987)

(holding frisk was lawful where the officer has reasonable cause to believe the

detainee may be armed with a weapon such as a knife).

C.

English also challenges the search following the initial frisk. As discussed

above, the initial frisk was done to protect the officers’ safety and to investigate

criminal activity. During the course of the lawful frisk, Officer Nicolino felt a bulge

in the front of the defendant’s pants and observed the defendant taking evasive,
8

crouching action to avoid the frisk. Officer Nicolino concluded that further

investigation was warranted. We conclude the limited secondary search did not

violate the defendant’s right to be free from unreasonable searches and seizures.

First, English consented to the search. When Nicolino felt the bulge in

English’s pants and told English he suspected English was hiding something in

his pants and wanted to search further, English replied, “That’s fine. Go ahead.”

Even before Nicolino requested consent, English voluntarily gave it. See State v.

Garcia, 461 N.W.2d 460, 462 (Iowa 1990) (“It is well established that a

warrantless search, with voluntary consent, is valid under the fFourth

Amendment.”).

Second, under the facts and circumstances of this case, the secondary

search was justified. Officer Nicolino observed the defendant leaving a drug

activity house, knew the defendant had provided false information in response to

questioning, and observed a dangerous weapon in the defendant’s vehicle.

Officer Nicolino felt a bulge that, based on his training and experience, he

believed to be contraband in the front of the defendant’s pants. The officer’s

suspicion was heightened by the defendant’s attempts to evade the frisk. The

district court thus did not err in denying the motion to suppress. See, e.g., State

v. Heitzmann, 632 N.W.2d 1, 10 (N.D. 2001) (“Heitzmann’s demeanor and

actions justified a pat-down search, and when Heitzmann became uncooperative

and began exhibiting evasive behavior, a more intrusive pocket search was

justified.”); State v. Willis, 481 S.E.2d 407, 412 (N.C. Ct. App. 1997) (holding

officer search of interior pocket was justified where the defendant exited a
9

suspected drug house and the defendant exhibited nervous and evasive

behavior).

Finally, it should also be noted there was no evidence seized as a result of

the frisk and expanded search. After Officer Nicolino completed the search of

English’s person, the officer informed English the encounter was terminated and

English was free to leave. After English walked back toward his vehicle, the

officers observed contraband on the ground where English had been standing.

The officers’ subsequent arrest and seizure of the contraband was thus

independently supported by probable cause. See, e.g., United States v. Binion,

570 F.3d 1034, 1040 (8th Cir. 2009) (affirming denial of motion to suppress

where drugs were seized after falling out of the defendant’s pants leg); U.S. v.

Cochran, 309 Fed. Appx. 2, 6 (7th Cir. 2009) (“After Cochran got out of his car, a

baggie containing what the officers thought to be (and what was later confirmed

to be) crack cocaine fell out of his pants leg. That entitled the officers to seize

the baggie . . . and gave them reason to place him under arrest for drug

possession.”); People v. Simpson, No. 3139/00, 2002 WL 523089, at *6 (N.Y.

Sup. Ct. Feb. 8, 2002) (“As the defendant approached the vehicle, a package

containing small packets of crack-cocaine fell out of his pants leg. This was

clearly visible to the detectives, who seized the package and placed the

defendant under arrest.”).

D.

English contends his conviction of possession with intent to deliver is

against the weight of the evidence. Although he states his issue as a weight-of-
10

the-evidence claim, his argument and the authority he cites all relate to the

sufficiency of the evidence. The district court found English possessed twelve,

individually-packaged rocks of crack cocaine weighing a total of 2.32 grams. The

quantity of drugs and the manner in which they were packaged for resale support

an inference of intent to deliver. See State v. See, 532 N.W.2d 166, 169 (Iowa

Ct. App. 1995) (“The quantity and packaging of a controlled substance may be

indicative of an intent to deliver.”).

III.

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

motion to suppress. We also affirm his conviction of possession with intent to

deliver.

AFFIRMED.