State of Iowa v. Jeremiah Ray Janes

IN THE COURT OF APPEALS OF IOWA

No. 22-0748
Filed June 21, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JEREMIAH RAY JANES,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Terry Rickers, Judge.

The defendant appeals his conviction for possession of methamphetamine.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., and Greer, Schumacher, Ahlers, and Badding, JJ.
2

TABOR, Presiding Judge.

Jeremiah Janes appeals his conviction for possession of methamphetamine

with intent to deliver after the police arrested him and found the substance in his

pocket. He contends the police officer’s detection of marijuana odor in the hotel

parking lot where he was standing did not provide reasonable suspicion to seize

him. From there, he argues the search violated the Fourth Amendment of the

United States Constitution and Article I, section 8 of the Iowa Constitution.

We find, even if the seizure were unreasonable, Janes could not lawfully

resist his arrest. That resistance gave an independent basis to search, resulting

in the discovery of the methamphetamine. So we affirm.

I. Facts and Prior Proceedings

West Des Moines Police Officer Andrew Hofbauer was patrolling along

Jordan Creek Parkway around 11:50 p.m. and circled the Motel 6 parking lot with

his windows down to smell the air.1 While going around the southeast corner of

the motel, he “could smell an odor of marijuana and could see several people

outside.” Hofbauer circled a second time and noticed the marijuana smell

especially at the southeast corner of the hotel. On his second lap, he saw two

people standing next to a motorcycle and two other people next to a car parked a

few spots away from the motorcycle. He parked his car and radioed for support

officers on a “suspicious vehicle.”

1 Hofbauer testified he is assigned to the department’s “entertainment response
unit,” which focuses on hotels, motels, and bars in the West Des Moines
“entertainment district.” The unit handles calls related to narcotics, prostitution,
and other criminal activities.
3

Bypassing that vehicle, a Nissan Rogue, Hofbauer first approached the

couple standing near the motorcycle. He would eventually identify them as Janes

and Janes’s friend, Hailey Rusk. While talking with them, the officer noticed “a

strong odor of marijuana.” He recalled that it was “stronger, more prevalent than

when I was driving around the area.” When asked whether he smelled burnt or

raw marijuana, Hofbauer testified, “I can’t distinguish or recall what the actual odor

was, burned or raw.”

Hofbauer asked Janes and Rusk for identification, but they refused. Janes

asserted he was a “private American national,” and chose not to “contract with” the

law enforcement officer. Hofbauer responded:

. . . Okay. Well, I’m gonna have you guys stay here until we can
figure out where this odor of marijuana is coming from, okay?
Because I have reasonable, articulable suspicion to believe that
there’s marijuana in this area and that you guys both are in the area
where an odor of marijuana is coming from, okay?

Just as Hofbauer walked away, Officer Brandon Condon walked up to Janes and

Rusk. Condon engaged them in conversation for about three minutes until

Hofbauer returned. Condon asked Janes why he parked his motorcycle on the

curb, too close to a fire hydrant. Condon also testified that he could smell

marijuana “emitting in the area” during this conversation. A third officer, Jaime

Ballesteros, likewise testified to smelling marijuana on the scene. None of the

officers could specify if they smelled burnt or raw marijuana.

Meanwhile, Hofbauer spoke with the other two people in the parking lot.

They both provided Hofbauer with identification, which he checked for warrants.

And he decided the marijuana scent was not coming from them. Then he returned

to Janes and Rusk. On Hofbauer’s bodycam, Rusk can be seen setting down a
4

backpack she was wearing during their initial encounter. After reaching them,

Hofbauer told Janes and Rusk, “I can smell marijuana right now” and hypothesized

that it “poofed up” from Rusk’s backpack.

Their conversation then turned back to the unauthorized spot where the

motorcycle was parked before Hofbauer again asked for identification. When

Janes remained recalcitrant, Hofbauer explained the reason for seizing Janes and

Rusk was that he smelled marijuana “right here.” Hofbauer also said he would

arrest Janes for interference with official acts based on his refusal to show

identification when “lawfully ordered” to do so. During this discussion, Janes

disclosed that he had “paraphernalia” in his pocket, but he didn’t believe that the

officers could smell marijuana from it.

After roughly twelve minutes of back-and-forth, Hofbauer again expressed

his intent to arrest Janes. Janes stated, “no you’re not,” and asked, “on what

grounds?” Hofbauer replied “you’re under arrest . . . for interference.” Hofbauer,

Condon, and Ballesteros then surrounded and advanced on Janes. Janes backed

up shouting “don’t touch me” and turned away, but was blocked by a railing. The

officers wrestled Janes to the ground and handcuffed him. Janes at first kept his

arms to his front so the officers could not cuff him. During the tussle, Hofbauer’s

body camera mount broke.

After taking Janes to the ground, officers searched his pockets, as well as

Rusk’s backpack. On Janes, they found a bag containing over 100 grams of

methamphetamine and a pipe that appeared to have marijuana residue in it.

Condon testified that the pipe could have been the source of the marijuana odor.

Inside the backpack, officers found 2.3 grams of marijuana in a plastic bag, that
5

was inside a cloth case, that was inside of a purse. Condon also testified that he

believed it “could be possible” to detect the smell of that amount of marijuana in

that state of packaging from thirty feet away.

The State charged Janes with possession of methamphetamine with intent

to deliver, as a class “B” felony, in violation of Iowa Code section 124.401(1)(b)(7)

(2021), and failure to affix a drug tax stamp, a class “D” felony, in violation of Iowa

Code sections 453B.1, .3, and .12. And it charged him as a habitual offender, in

violation of section 902.8.2

Janes moved to suppress everything found after he was first seized by

Officer Hofbauer. After a suppression hearing, where Janes represented himself,

the court denied the suppression motion.

The State agreed to dismiss the tax stamp violation and reduce the

possession charge to five grams or less, a “C” felony, in violation of Iowa Code

section 124.401(1)(b)(6). In return, Janes waived a jury and agreed to a bench

trial on the minutes of evidence. The court found him guilty as charged.3

Janes now appeals.

2 In a separate case, the State charged interference with official acts and
possession of drug paraphernalia but dismissed those counts at sentencing.
3 Janes stipulated that he had two previous drug convictions and was subject to

the habitual offender enhancement. See Iowa Code § 124.411. The court
sentenced him to a term of not more than thirty years.
6

II. Scope and Standard of Review

“When a defendant challenges a district court’s denial of a motion to

suppress based upon the deprivation of a state or federal constitutional right, our

standard of review is de novo.” State v. Hauge, 973 N.W.2d 453, 458 (Iowa 2022).

That review means we consider the entire record to independently evaluate the

totality of the circumstances. Id. In doing so, we defer to the district court’s fact

determinations but are not bound by them. Id. “In our review of the suppression

ruling, we consider not only the evidence at the suppression hearing but also the

evidence at trial.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).

II. Discussion

Janes argues police officers seized him without reasonable suspicion or

probable cause. In his view, the whiff of marijuana in an open-air parking lot

occupied by several people was not particular enough for a seizure. And even if

the odor did provide reasonable suspicion to seize him, Janes insists police went

too far in detaining him for “a prolonged period of time without likelihood of

furthering their investigation.”

In his suppression argument, Janes relies on the Fourth Amendment to the

United States Constitution and article I, section 8 of the Iowa Constitution.4 Both

documents protect individuals against unreasonable searches and seizures. State

v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001). Evidence obtained following a

violation of these constitutional protections is generally inadmissible at trial. Id. at

4 Janes does not argue there is a different standard under the Iowa Constitution.
“[I]n our discretion we choose to apply the federal framework . . . .” State v. Baker,
925 N.W.2d 602, 610 (Iowa 2019). But we may apply the federal framework in a
different manner. State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019).
7

111. To justify an investigatory stop, an officer must have reasonable suspicion,

backed by specific and articulable facts, to believe criminal activity is afoot. Terry

v. Ohio, 392 U.S. 1, 21 (1968). The officer “must be able to articulate something

more than an inchoate and unparticularized suspicion or hunch.” Alabama v.

White, 496 U.S. 325, 330–31 (1990) (cleaned up for readability) (citations omitted).

In denying the motion to suppress, the district court found that Officer

Hofbauer possessed both reasonable suspicion to detain and probable cause to

arrest Janes.5 The reasonable suspicion was Hofbauer’s “credibl[e] testi[mony]”

that he smelled marijuana while driving through the parking lot “where [Janes] was

located.” The court reasoned that Hofbauer questioned other people in the parking

lot and “eliminated them as potential sources of the marijuana aroma.”

But Janes points out that Hofbauer detained him before confirming the other

couple was not the source of the smell. According to Janes, he was seized when

Officer Hofbauer told him to “stay here until we can figure out where this odor of

marijuana is coming from.” See United States v. Mendenhall, 446 U.S. 544, 553–

54 (1980) (holding that seizure occurs when a reasonable person under the

circumstances would not feel free to leave).

Janes next focuses on particularity. He contends the smell of marijuana did

not furnish reasonable suspicion because Officer Hofbauer never determined with

any precision that the smell was coming from him. See United States v. Cortez,

449 U.S. 411, 417–18 (1981) (“An investigatory stop must be justified by some

objective manifestation that the person stopped is, or is about to be, engaged in

5 The district court also found the officer had probable cause when Janes gave an
“unprompted admission that he had illegal drug paraphernalia in his possession.”
8

criminal activity. . . . [D]etaining officers must have a particularized and objective

basis for suspecting the particular person stopped of criminal activity.”).

The State responds that the low bar of reasonable suspicion allowed the

officers to detain Janes while they ruled out other possible sources of the odor.

But the State’s response does not end there. It goes on to offer alternative grounds

for resolution. First, that the illegally parked motorcycle justified the seizure and

request for identification. See State v. Warren, 955 N.W.2d 848, 860–62 (Iowa

2021) ([P]police officers have probable cause to stop a motorist if they witness the

motorist commit a traffic violation” and traffic violations include parking violations.).

And second, that Janes’s interference with official acts—refusing to provide

identification6 and, later, resisting arrest—gave independent bases to take him into

custody. The State asserts that Janes physically resisting the ultimate arrest falls

under the “new crime” exception to the exclusionary rule. See State v. Dawdy,

533 N.W.2d 551, 555 (Iowa 1995) (“Even though an initial arrest is unlawful, a

defendant has no right to resist the arrest. If the defendant does so, probable

cause exists for a second arrest for resisting.”); see also United States v. Bailey,

691 F.2d 1009, 1016–18 (11th Cir. 1982) (“[E]xtending the fruits doctrine to

immunize a defendant from arrest for new crimes gives a defendant an intolerable

carte blanche to commit further criminal acts so long as they are sufficiently

connected to the chain of causation started by the police misconduct.”).

6For this point, the State cites Hiibel v. Sixth Judicial District Court, 542 U.S. 177,
180–81 (2004) (“A state law requiring a suspect to disclose his name in the course
of a valid Terry stop is consistent with Fourth Amendment prohibitions against
unreasonable searches and seizures.”).
9

Having thoroughly reviewed the arguments and record, we choose to

resolve this appeal on the State’s final rationale. Because even if we were to

decide that the seizure was unlawful, Janes could not lawfully resist the arrest.

We pause to address Janes’s concern that the State did not preserve this

rationale. Generally, we do not allow an appellee to urge a basis to affirm that it

did not raise before the district court or that the district court did not have the

chance to consider. See DeVoss v. State, 648 N.W.2d 56, 60–61 (Iowa 2002). In

DeVoss, the supreme court recognized an exception for evidentiary rulings. Id. at

62–63. And our court has found in unpublished dispositions that a suppression

ruling is an evidentiary ruling. See State v. Boll, No. 19-0487, 2020 WL 4200838,

at *2, n.2 (Iowa Ct. App. July 22, 2020) (finding the State did not waive a

suppression argument when raised for the first time in Boll’s appeal and noting “[a]

motion to suppress challenges the admissibility of evidence seized from a

defendant; thus, we may affirm the suppression ruling on any ground appearing in

the record, whether urged by the parties”); State v. Rave, No. 09-0415, 2009 WL

3381520, at *2–3 (Iowa Ct. App. Oct. 21, 2009) (noting “the [district] court’s ruling

on the motion to suppress was an evidentiary ruling” so the appellate court “may

affirm on any ground appearing in the record”).

In reply, Janes cites State v. Bingham where we stated we could “reverse

the district court’s suppression ruling on [a newly raised ground] only if the State

sufficiently presented it to the district court.” 715 N.W.2d 267, 271 (Iowa Ct. App.

2006). But Bingham was a State’s appeal of a suppression grant, so it was

incumbent upon the State to show it preserved error. DeVoss only allows us “to

sustain an evidentiary ruling on any proper ground even if not urged in the district
10

court.” State v. Marcelino, No. 18-0374, 2020 WL 564738, at *2 (Iowa Ct. App.

Feb. 5, 2020). It does not allow us “to reverse the . . . ruling on a ground not

raised.” Id. Janes also cites State v. Gaskins, where the supreme court noted,

“[t]he State did not assert any other theory or exception to the warrant requirement

justified the warrantless search” of a locked safe within Gaskin’s car. 866 N.W.2d

1, 4 n.3 (Iowa 2015). In that case, the county attorney only argued the search was

justified as incident to arrest, and the State asserted no new grounds on appeal.

Id. The majority found the search was not justified as incident to arrest and

addressed no other grounds. Id. at 16–17. A dissent read DeVoss as allowing

appellate courts to “affirm the district court’s suppression ruling on any ground

appearing in the record, whether urged by the parties or not.” Id. at 44–45

(Waterman, J., dissenting). So Janes cannot rely on Gaskins.7

Moving to the merits, our courts have long held that “a person may not resist

an arrest reasonably effected by one whom the arrestee knows or has good reason

to know is a peace officer, despite legality or illegality of the arrest.” State v.

Thomas, 262 N.W.2d 607, 611 (Iowa 1978). As the State says, “[T]he proper place

to fight the legality of the officers’ action was inside the courtroom, not the parking

lot . . . .”

7 In State v. Smith, the supreme court reiterated, “[W]e may affirm a ruling on the
admission of evidence by using a different rationale than relied on by the district
court.” 876 N.W.2d 180, 184 (Iowa 2016). But it recognized the rule is
“discretionary” and cautioned “we must be careful not to exercise our discretion to
decide an issue concerning the admissibility of evidence on an alternative ground
when the parties have not had an opportunity to properly develop or challenge the
foundation for the evidence.” Id. In this case, the suppression issue is well-
developed and appropriate for resolution.
11

The supreme court recently reaffirmed this principle in State v. Wilson. 968

N.W.2d 903, 918–19 (Iowa 2022). There, the supreme court found that police—

responding to a noise complaint—illegally entered Wilson’s home after she refused

to give her real name. Id. at 907. When officers tried to arrest Wilson, she tossed

a cocaine vial that she had been holding. Id. at 907. Then Wilson physically

resisted her arrest. Id. at 908–09. The court determined that the evidence

obtained as a result of the illegal entry must be suppressed. Id. at 917. Still, the

court affirmed her conviction for interference with official acts for resisting the

unlawful arrest. Id. at 917–18.

“A person commits interference with official acts when the person knowingly

resists or obstructs anyone known by the person to be a peace officer, . . . in the

performance of any act which is within the scope of the lawful duty or authority of

that officer . . . .” Iowa Code § 719.1(1)(a). Janes knew Hofbauer was a peace

officer, and knowingly resisted the arrest by backing away and then keeping his

arms down so the officers could not secure them behind his back. Janes’s

subjective belief that the arrest was illegal did not permit his resistance. And the

State is correct that the officers gave Janes many chances to comply in a non-

violent manner.

In the end, Janes cannot overcome the fact that he committed a new crime

in physically resisting the arrest. The search of his person incident to arrest

revealed the bag of methamphetamine. That evidence was admissible because

of the new crime, even if the initial seizure were unlawful.8 See Dawdy, 533

8For the same reason, it is also admissible whether or not there was probable
cause to arrest based on his parking or his admission that he possessed a pipe.
12

N.W.2d at 555 (finding, after resisting the first arrest, “[a] search incident to the

second arrest is lawful”). So we affirm Janes’s conviction for possession of

methamphetamine.

AFFIRMED.