It Doesn't Count In Iowa

 In State v. Middlekauf, no. 21-0664 (May 27, 2022) an out of state traveler from Arizona was stopped for speeding and the smell of marijuana was encountered.

Pamela Middlekauf admitted to the officer that she had marijuana in her car and handed it over, but was sent on her way as she did not seem impaired. Later she was charged by trial information with possession of marijuana in violation of Iowa Code ch. 124.401(5) and convictedof a serious misdemeanor.

Middlekauf appealed, arguing that her Arizona issued medical marijuana registry card and certification constituted a prescription and thus an affirmative defense under 124.401(5).

The Court affirmed her conviction, stating that the documents did not constitute a valid prescription under Iowa law and precedent, and in fact as a schedule 1 controlled substance marijuana cannot be prescribed in Iowa.

You're Old Enough

 Ed. Note. I'll be working my way backwards through the backlog here at least until I get to the trash diving case. Stay tuned.

State v. Dorsey (19-1917) and State v. Sandoval (20-0396) were handed down on June 10, 2022, and they both present the same argument for the extension of Miller v. Alabama (567 U.S. 465) 2012 in which the United States Supreme Court ruled that sentencing a juvenile below the age of 18 to a sentence of life without parole was cruel and unusual punishment.

Both defendants argued that the Iowa Constitution, Art. 1 section 17 and emerging science on the subject of the development of the juvenile brain militates for a review of the subject at least to the extent of providing meaningful possibilities of rehabilitation and the possibility of parole. To do otherwise, they argue, is cruel and unusual punishment.

Dorsey was 18 years and five days old when he committed a homicide in Des Moines 38 years ago, and Sandoval was 19 at the time he killed two people.

The Iowa Supreme Court disagreed, holding that the sentences each received were not grossly disproportionate.

 

The Great Revival Explained.

This blog has been sitting idle for a number of years as you can see but I have decided to revive it and limit its scope.

I'm going to limit it to cases on search and seizure, use of force, and other matters of interest where law enforcement has some involvement that has been litigated.

In addition I am going to be following the decisions of the Iowa Court of Appeals on the same subject matter.

The idea is that as precedent evolves-something we have seen in the not too distant past-I will report on it, and I'll be working backward to fill in the details as we go, so stay tuned.

Since we talked last, Judy has retired from her service at the Iowa Law Enforcement Academy, and I have put my law license in the exempt category, which is a sort of suspended animation. 

With inflation and the rising cost of anything and everything I've had to cut down on expenses. Should the day come I'll have  to get current on my CLE requirements to reactivate. I could not bring myself to completely do away with the license on the off chance that I may find something useful to do with it.

Another thing. 

Don't expect politics, unless it is directly relevant to the case under study. This is going to be only about helping you do your job better and fairer. 

When we all follow the law and uphold our oaths to the Constitutions (both Federal and State) the process works better and naturally protects the rights of  all of us. 

Jamie Buenting

It is with great sadness that we have to comment on the untimely death of Officer Jamie Buenting of the Rockwell City PD. Officer Buenting was killed in the line of duty by a single shot while trying to serve a warrant on a local man who was alleged to have assaulted his mother.

Mi esposa, who works at the Academy states that she knew Jamie to be one of those genuinely good guys you don't meet too often, and so you remember them for their good qualities, good humor, and most of all kindness.

Officer Buenting leaves behind a wife and two young 'uns.

It's a dangerous job. Be safe out there.

Rest eternal grant unto them, O Lord, and let Light Perpetual shine on them.

David Flores In The News. Again.

The Des Moines Register informs us this day that Iowa's favorite felon,  David Flores,  is once again back in the news. According to the police report, if true in all its particulars, it seems that after luring his former girlfriend to his pad, he beat, choked, and held her against her will overnight. Even discounting for police report hyperbole, this is disconcerting news. At this moment Flores has yet to be arrested-or found maybe.

This is Flores' third or fourth brush with the law since conning the credulous court of the retired Judge Don Nickerson into granting a new trial, which resulted in Flores taking a plea to avoid going back to da joint or risking it all at trial.

Flores' crew of handlers and groupies allege that this is but another example of police harassment, sort of sour grapes, and I do not doubt that he is being watched closely.

Time will tell. One never knows, do one?

Blues For Phyllis Davis, Part III

We've come to the end of a long, sorry road in this case, so I thought I'd post this picture of Phyllis Davis so as to remind my readers what this was all about-the death of an innocent woman of no great pretentions, with nothing more important in mind the day she died than getting home from work and putting her feet up and turning on the television.

All that changed in an instant as a rolling gun battle between the city's crip and blood factions (capitalization deliberately omitted) ended with the death of Davis. She drove into the midst of a group of urban gangster wannabes, caught a stray slug, and bled to death in her car at the intersection of 9th and University in broad daylight.

We have written about this before in 2009, describing the multiplicity of prosecutions and convictions that came out of this. The occupants of the brown Oldsmobile could not properly argue that they were not there because they were, and they were caught and convicted fair and square.

David Flores was convicted of murder and sentenced to a life term, but as occasionally happens, memories fade and new synthetic memories are created that sometimes are enough to convince a judge somewhere to order a new trial-and that's what happened here. We've heard of false memory syndrome, and people, when subject to enough arm twisting, often recollect things that did not, in fact, occur. And, of course, if you repeat a lie often enough it becomes the functional equivalent of truth.

Flores' original attorney-who did a poor job of defending him the first time, is conveniently dead and could not be called on the carpet for his mishandling of the case. The credulous judge, Don Nickerson, has since retired.  The lawyer who got the ball rolling for Flores, Mary Kennedy, has had three reprimands and six suspensions to her discredit. People unassociated with the case suddenly remembered things they'd never thought of before, twelve years later. The alleged shooter was very  conveniently dead, and we have no reason to think he did the foul deed except the offhanded remarks of a jailbird which, allegedly were not disclosed to the defense. That was enough to earn Mr. Innocence the possibility of a new trial.

I was looking forward to getting my sack lunch and sitting in on the trial, but as it happens-you guessed it-Mr. Innocence copped a plea.

Oh, I know, I know, it was an Alford plea,  but that is in truth a mere fig leaf for a defendant to hide his nakedness.

In exchange for Flores' plea to terrorism, attempted murder and manslaughter, he was sentenced to a term that got him out of jail. Part of the agreement was that Flores would not be prosecuted for his alleged participation in a home invasion robbery while out on bond. He's also currently being prosecuted for heaving rocks at some neighbor's car. A grand fellow, all things being equal.

At sentencing, Judge Gamble did not join in the Flores Love fest and group hug. Here's an excerpt from the Register:

“I understand the way you feel about me but I’m not a bad person,” Flores, now 36, said in court Thursday to the Davis family during the sentencing hearing.

He then began to sob: “I may have had a bad childhood and I may have made some bad decisions when I was young, but I’m not a killer.”

During Flores’ statement, he mentioned that he spent all of his 20s and half of his 30s to prison and that he was ready to choose freedom.

That statement was rebuked by Polk County Judge Arthur Gamble, who told Flores that he had pleaded guilty to “a serious, heinous, violent, criminal offense.” Gamble sentenced Flores to 35 years, the maximum prison sentence that he could impose under the law.

“Now you may claim you lost your 20s, your teens and your 30s. Phyllis Davis lost her life,” Gamble said. “We may never know for a certainty what occurred that day but we do know that you appeared before this court two days ago and you entered a plea of guilty.”

That's a good summary of the proceedings.

He says now that he feels sorry he took the plea, and wants to move out of the area. That might be the first useful thing he's done with his life.



A Note to my readers. I've neglected this blog for some time now but I intend to pay more attention to the things that matter here. Stay tuned.

EDITOR'S NOTE: This is an update of a post I did about four years ago.

About this time of year many Iowans get the urge to head out to the field and do a little hunting and one of the things that happens is that there's a fresh crop of felon in possession charges that come across the county attorney's desk. Often the offenders are people who may have had a third operating while intoxicated conviction a few years ago, and memory has faded. I had more than a few at the county attorney's office myself. There are also a number of people who have had convictions for domestic violence or who are subject to protective orders who ask the same things.

One question that always gets asked is "Well, can I hunt with an antique weapon like a muzzle loading rifle or shotgun?" The answer is decidedly "no", even though some folks may argue that federal law doesn't forbid it. 

Our state has not specifically defined a "firearm" in the code-such things are subsumed in the definition of a dangerous weapon found in Iowa Code Chapter 702, which specifically exempts a bow and arrow possessed for hunting and other lawful purposes. In State v. Lawr, 263 N.W.2d 747 (Iowa 1978) the Court did say that a firearm is a small arms weapon from which a projectile is fired by gunpowder. It must be able to propel a projectile and it must do so by explosive force.

The last time I did this piece a fellow took issue with me, saying that black powder and pyrodex are not gunpowder and therefore a muzzle loader is not a dangerous weapon subject to regulation. I would like to see that fellow try to sell that to the veterans of the Civil War, but nevermind.

There's a recent case from Nevada that applies. In State v. Pohlabel, a defendant argued that the state's statute prohibiting felons from possessing firearms violated his second amendment right to keep and bear arms. Pohlabel's argument was that 18 U.S.C 921(a)(3) does not forbid felons from possessing antique or black powder firearms:

(3) The term “firearm” means

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

(B) the frame or receiver of any such weapon;

(C) any firearm muffler or firearm silencer; or

(D) any destructive device. Such term does not include an antique firearm. 

 

Further we find this:

 

(16) The term “antique firearm” means—

(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or

(B) any replica of any firearm described in subparagraph (A) if such replica—

(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or

(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or

(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. 

 

Next, to further confuse the issue is 26 U.S.C. 5845 a/k/a the National Firearms Act:

 

(a) Firearm

The term “firearm” means

(1) a shotgun having a barrel or barrels of less than 18 inches in length;

(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;

(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

(5) any other weapon, as defined in subsection (e);

(6) a machinegun;

(7) any silencer (as defined in section 921 of title 18, United States Code); and

(8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.

 

Of course the NFA serves only to regulate weapons, rather than regulating who has command and control over the weapons as 18 U.S.C. 921 does. 

 

I tend to disagree with such a liberal interpretation of the definition in 18 U.S.C. 921(a)(3)  myself because I think that the exception, if there is one, means only that an antique firearm is not considered a destructive device. But nevermind.

 

The Court disagreed with Pohlabel's argument, saying that while federal law currently permits felons to possess black powder rifles, that does not mandate that Nevada (should) follow suit.

At this point, the answer's clear. If you're a felon in Iowa you might want to consider taking up archery, and the same applies if you've been convicted of a domestic violence offense or are subject to a protective order in a domestic violence case, no matter how minor.

I Always Feel Like Somebody's Texting Me

Folks, I  have been away from my desk at the Iowa Law Enforcement Reporter for a while but I promise that I will faithfully execute the duties of my office henceforth and forevermore til death do us part.

With that said, there are a couple of very interesting cases kicking around, both  of which are from outside the jurisdiction. I'll get to the other one later.

Cell phone text messaging has become commonplace but extracting the information and authenticating it so as to use it as evidence presents a number of problems for law enforcement.

In Commonwealth v. Koch, no 1669 MDA 2010 (Pa. Sup. Ct. 2011) a Pennsylvania case,  a defendant was convicted of possession with intent.The police had seized two cell phones, one of which belonged to Koch and one to her brother. The text messages extracted from the phone were transcribed and offered into evidence over timely objections. On appeal, Koch argued that the text messages were not properly authenticated, the author of the messages could not be determined, and were inadmissible hearsay.

The court first noted that under Pa. R. Evid. 901(a) to introduce evidence it must first be authenticated. This rule is similar to the Iowa rule. The proponent must introduce sufficient evidence that the matter is what it purports to be.Electronic writings typically show their source, and hence can be authenticated in the same way a written document can be. Police could not determine the source of drug related text messages, and some had been deleted.

The difficulty lies in establishing authorship, but text messages are sent from a phone bearing the number identified in the message. There was no evidence tending to show the defendant sent any of the messages. Thus, the defendant could not be identified as the source of the messages.

That led to the question of hearsay, which is an out of court statement offered in evidence to prove the truth of the matter asserted. In this case, the only relevance of the text messages was to show that they demonstrated intent to deliver. Because the defendant's authorship could not be identified they could not be admitted as a statement of a party opponent.

Iowa has not comprehensively addressed the matter. In State v. Simpson, 804 N.W.2d 314 (Iowa Ct. App. 2011). In this case Simpson attacked a text message on foundational matters, but the message was sent contemporaneously with the underlying criminal investigation, another person was present and saw the message as it was received,  and the victim confirmed that the message presented was the same message he had been sent. it was also the admission of a party opponent.

So where's this taking us? There's no doubt that text messages, even when inadmissible, are extremely relevant to an investigation. However, unless they can be reliably authenticated it is not good practice to bet the ranch on them from a prosecutions standpoint.

And we haven't even touched the issue of whether a warrant is needed to extract the contents of a cellphone, whether it's stored messages, contacts, locational data or whatever else can be gleaned from it. The conservative approach would be to err on the side of caution and obtain a warrant.