                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0913
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MEJDIL AHMETOVIC,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      Mejdil Ahmetovic appeals his convictions of possession of a controlled

substance with intent to deliver and failure to affix a drug-tax stamp. AFFIRMED.




      Kent A. Balduchi of Balduchi Law Office, P.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
                                            2


MULLINS, Judge.

       Mejdil Ahmetovic appeals his convictions of possession of a controlled

substance with intent to deliver and failure to affix a drug-tax stamp. He asserts

the district court erred in denying his motion to suppress evidence, contending the

warrantless traffic stop and subsequent searches of his pocket and an automobile

in which he was a passenger violated his constitutional rights against

unreasonable searches and seizures under the Fourth Amendment to the United

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

I.     Background Facts and Proceedings

       The following facts can be gleaned from the suppression record. Officer

Wilshusen is an officer in the Des Moines Police Department’s narcotics unit. On

June 3, 2016 at approximately 6:00 p.m., Wilshusen received information from a

confidential informant1 that Ahmetovic would be in a “black Volkswagen vehicle” in

a particular McDonald’s restaurant parking lot at approximately 8:30 p.m. the same

evening with approximately one ounce of cocaine in his possession.2 Wilshusen

was off duty at the time he received this tip, so he relayed the information to two

officers assigned to the department’s summer enforcement team,3 Officers

McCarthy and Becker.




1
  Wilshusen had prior dealings with this confidential informant and the informant has
provided Wilshusen credible information in the past. Wilshusen testified on cross-
examination that the confidential informant was receiving favorable treatment in a pending
case in exchange for the provision of information.
2
  Prior to receiving this information, Wilshusen was familiar with Ahmetovic, as there was
an ongoing investigation concerning his sale of cocaine in the Des Moines area.
3
  The summer enforcement team is a unit tasked with targeting drug, gang, and gun
activity.
                                          3


       McCarthy and Becker’s shift started at 8:00 p.m., at which time Wilshusen

followed up with them to advise the information was still valid. McCarthy and

Becker obtained a photograph of Ahmetovic and then “drove straight to the vicinity

of the location that [Ahmetovic] was supposed to arrive at.” McCarthy and Becker

arrived at the location at 8:05 or 8:10 p.m. At approximately 8:50 p.m., a “black

hatchback Volkswagen” arrived at the McDonald’s parking lot. After the vehicle

parked, the officers placed their squad car behind the vehicle and exited their

squad car. As the officers were exiting their vehicle, McCarthy observed the

individual in the front passenger seat “ben[d] over kind of abruptly towards the

floorboard.” The officers approached the Volkswagen, Becker on the driver side

and McCarthy on the passenger side. The vehicle contained two occupants, and

the individual seated in the front passenger seat was identified as Ahmetovic.

During the course of their investigation, the officers learned Ahmetovic was not the

owner of the subject vehicle. The driver was merely giving Ahmetovic a ride to a

party they planned to attend that evening.

       Ahmetovic subsequently complied with McCarthy’s request that he exit the

vehicle. McCarthy then performed a pat-down, weapons search of Ahmetovic’s

person, during which McCarthy “noticed a hard bulge in the right coin pocket of

[Ahmetovic’s] pants.” McCarthy testified: “The immediate feel of it, based on my

experience and the specific information we were given from Officer Wilshusen, at

that point I believed it to be cocaine.” He further testified on cross-examination,

“Based on the touch, I was very certain it was probably a narcotic.” McCarthy

“stayed on the item,” pressed it with his fingers to draw Ahmetovic’s attention to it,

and asked Ahmetovic what it was; Ahmetovic responded he did not know.
                                             4


McCarthy asked, “Can I get it?” upon which Ahmetovic responded, “Yeah.”4

McCarthy removed the object, which appeared to be, and subsequently tested

positive as, cocaine.      Ahmetovic admitted the substance belonged to him.

McCarthy also found more than $1000 in cash on Ahmetovic’s person.

       Ahmetovic was placed under arrest and advised of his Miranda rights.

During a subsequent search of the Volkswagen, the officers discovered “a much

larger baggie of cocaine” underneath the front passenger seat, where Ahmetovic

was sitting. Ahmetovic admitted the cocaine belonged to him.

       Ahmetovic was charged by trial information with possession of cocaine with

intent to deliver and failure to affix a drug-tax stamp. Ahmetovic subsequently

moved to suppress all of the drug evidence obtained as a result of the searches of

his person and the vehicle, contending the warrantless searches were in violation

of his constitutional rights under the Fourth Amendment to the United States

Constitution and article I, section 8 of the Iowa Constitution.               Following a

suppression hearing, the district court denied Ahmetovic’s motion.              The court



4
   In his testimony at the suppression hearing, Ahmetovic denied McCarthy requested
permission to remove the item and that he gave McCarthy permission to remove the item.
The district court made an express credibility finding in favor of McCarthy’s testimony that
Ahmetovic consented to the removal of the item. The court based its credibility finding on
its “evaluation of each witness’s live testimony” and Ahmetovic’s “motivations in these
suppression proceedings.” As discussed below, we give deference to the district court’s
credibility assessments. Furthermore, the video footage of the encounter, which was
admitted into evidence at the suppression hearing, supports McCarthy’s testimony. At the
time of the encounter, Becker was wearing a microphone but McCarthy was not. At the
time the drugs were found, McCarthy and Ahmetovic’s verbal exchanges were not
captured by Becker’s microphone. However, moments before McCarthy removes a
baggie containing a white substance from Ahmetovic’s pocket, the video footage depicts
McCarthy pausing near Ahmetovic’s right pocket. McCarthy’s expressions cannot be seen
at this time, as Ahmetovic is in between the dash camera and McCarthy’s face. However,
shortly after McCarthy’s pause near the right pocket, Ahmetovic is seen mouthing a one-
word statement to McCarthy. Seconds later, McCarthy removes the cocaine from
Ahmetovic’s right pocket.
                                         5


concluded the search of Ahmetovic’s pocket was lawful because the nature of the

item was “immediately apparent” to McCarthy or, alternatively, because the search

was based upon valid consent. As to the search of the vehicle, the court concluded

Ahmetovic—as a mere passenger with no possessory interest in the vehicle—

lacked standing to challenge the search or, in the alternative, the search was lawful

under the automobile exception.

       Ahmetovic waived his right to a jury trial and stipulated to a bench trial on

the minutes of evidence. The court found him guilty as charged. Ahmetovic

appealed following the imposition of sentence.

II.    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. Storm, 898 N.W.2d 140, 144 (Iowa 2017)

(quoting State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017)). “[W]e make ‘an

independent evaluation of the totality of the circumstances as shown by the entire

record.’” Brown, 890 N.W.2d at 321 (quoting In re Pardee, 872 N.W.2d 384, 390

(Iowa 2015)). “We give deference to the district court’s fact findings due to its

opportunity to assess the credibility of the witnesses, but we are not bound by

those findings.” Id. (quoting Pardee, 872 N.W.2d at 390).

III.   Discussion

       A.     Initial Seizure

       Ahmetovic first appears to argue law enforcement was required to obtain a

search warrant before stopping and seizing the vehicle and thereby seizing him.
                                        6


Ahmetovic generally cites to Iowa Code section 808.3 (2016) to support his

position.

       However, that section, entitled “Application for search warrant,” applies to

searches, not to initial encounters with law enforcement or seizures such as a

traffic stop. See Iowa Code § 808.3 (emphasis added); see also State v. Tyler,

830 N.W.2d 288, 292 (Iowa 2013) (noting a traffic stop amounts to a seizure). A

search, whether pursuant to a warrant or an exigency exception to the warrant

requirement, requires probable cause. See Iowa Code § 808.3 (requiring probable

cause for search warrants); State v. Gogg, 561 N.W.2d 360, 368 (Iowa 1997) (“As

a general rule, a search warrant requires probable cause.”); see also State v.

Naujoks, 637 N.W.2d 101, 108 (Iowa 2001) (noting warrant requirement is

excepted for a “search based on probable cause and exigent circumstances”).

       To justify a traffic stop and briefly detain an individual for investigatory

purposes, “the police need only have reasonable suspicion, not probable cause,

to believe criminal activity has occurred or is occurring.” State v. Tague, 676

N.W.2d 197, 204 (Iowa 2004); accord Rodriguez v. United States, 135 S. Ct. 1609,

1615 (2015) (noting only reasonable suspicion is required to detain an individual

for investigatory purposes); Navarette v. California, 134 S. Ct. 1683, 1687 (2014);

State v. Pettijohn, 899 N.W.2d 1, 15 (Iowa 2017). “Reasonable suspicion is a less

demanding standard than probable cause,” Alabama v. White, 496 U.S. 325, 330

(1990), and Ahmetovic does not argue the officers lacked the reasonable suspicion

necessary to justify encountering him and his driver in the McDonald’s parking lot.

In fact, Ahmetovic conceded in oral argument that under the totality of the

circumstances, when Ahmetovic arrived at the McDonald’s parking lot, thus
                                             7


verifying the confidential informant’s tip, the officers had not only reasonable

suspicion, but probable cause to detain Ahmetovic and his driver and conduct a

search.

       We conclude the police were not required to obtain a search warrant before

they made contact with Ahmetovic and the driver of the vehicle.                 We reject

Ahmetovic’s arguments to the contrary.

       B.      Search of Ahmetovic’s Pocket

       Ahmetovic next contends the evidence concerning or flowing from the

cocaine found in his pocket during the Terry5 pat-down search should be

suppressed as obtained in violation of his constitutional rights. He concedes the

Terry pat-down search was justified under the totality of the circumstances but

contends the warrantless search of his pocket amounts to a constitutional violation.

       “Warrantless searches are per se unreasonable if they do not fall within one

of the well-recognized exceptions to the warrant requirement.” State v. Lowe, 812

N.W.2d 554, 568 (Iowa 2012) (quoting Naujoks, 637 N.W.2d at 107).                      The

exceptions to the warrant requirement include, among others, searches pursuant

to valid consent and searches of items in plain view. Naujoks, 637 N.W.2d at 107;

see generally Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent

searches); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plain-view doctrine).

The plain-view exception has also been extended to include certain “plain-feel”

situations:




5
  See Terry v. Ohio, 392 U.S. 1, 30 (1968) (noting officers are entitled “to conduct a
carefully limited search of the outer clothing . . . in an attempt to discover weapons which
might be used to assault” the officer or others).
                                        8


      If a police officer lawfully pats down a suspect’s outer clothing and
      feels an object whose contour or mass makes its identity immediately
      apparent, there has been no invasion of the suspect’s privacy
      beyond that already authorized by the officer’s search for weapons;
      if the object is contraband, its warrantless seizure would be justified
      by the same practical considerations that inhere in the plain-view
      context.

Minnesota v. Dickerson, 508 U.S. 366, 376–77 (1993).

      As to the plain-feel exception, Ahmetovic forwards the following argument:

      McCarthy did not believe that the contents of [his] pocket contained
      a weapon. He did, however, continue to manipulate the contents of
      the pocket in an attempt to further discern what said contents might
      be. The additional manipulation by Officer McCarthy makes it clear
      that the contents of [Ahmetovic’s] pocket were not immediately
      identifiable as narcotics. While absolute certainty may not be
      required, an item’s incriminating nature is not “immediately apparent”
      if an officer is torn between multiple-choice options.

      As did the district court, we find Ahmetovic’s argument and its underlying

factual assertions unsupported by the suppression record.           The evidence

presented reveals that, while McCarthy was conducting a brief weapons search of

Ahmetovic’s person, he “noticed a hard bulge in the right coin pocket of

[Ahmetovic’s] pants.” McCarthy testified: “The immediate feel of it, based on my

experience and the specific information we were given from Officer Wilshusen, at

that point I believed it to be cocaine.” He further testified on cross-examination,

“Based on the touch, I was very certain it was probably a narcotic.” No evidence

or testimony was presented at the suppression hearing that McCarthy, in any way,

shape, or form, “manipulated the contents of the pocket in an attempt to further

discern what said contents might be” before he reached his conclusion. Rather,

the evidence shows that, when McCarthy noticed the bulge, based on his training,

experience, and the information he received, it was immediately apparent to him
                                         9


that the item was contraband.      It was not until after McCarthy reached this

conclusion that he “stayed on the item” and pressed it with his fingers to draw

Ahmetovic’s attention to it before questioning him what it was.

       In the course of a lawful Terry search, McCarthy felt an object that was

immediately apparent to him to be contraband, and there was therefore no invasion

of Ahmetovic’s privacy beyond that already authorized by the Terry search. We

conclude the warrantless search of Ahmetovic’s pocket was valid under the plain-

feel exception to the warrant requirement.

       We choose to continue our analysis of the search, however, because this

case alternatively contemplates the consent exception to the warrant requirement.

“A warrantless search conducted by free and voluntary consent does not violate”

constitutional protections against unreasonable searches. State v. Reinier, 628

N.W.2d 460, 465 (Iowa 2001). Consent cases pose two questions: (1) whether

the consent was given and (2) if so, whether it was given voluntarily. Id. As he did

in his testimony at the suppression hearing, Ahmetovic “denies that he consented

to the removal of the contents of his pocket.” Upon our de novo review and giving

deference to the district court’s credibility findings, we conclude the consent was

manifested. Whether the consent exception applies to validate this warrantless

search therefore turns on whether the consent was voluntary.

       “Consent is considered to be voluntary when it is given without duress or

coercion, either express or implied.” Id. Voluntariness of consent is “a question of

fact based upon the totality of the relevant circumstances.” Id. Consideration of

the following factors is helpful in determining the voluntariness of consent: (1) the

defendant’s knowledge of the right to refuse consent, (2) “whether police asserted
                                          10


any claim of authority to search prior to obtaining consent,” (3) any “show of force

or other types of coercive action,” (4) the use of deception, (5) threats to obtain a

search warrant, and (6) other illegal police action prior to the giving of consent. Id.

       Although it is unclear whether Ahmetovic knew he could refuse consent, it

is clear that the police did not assert any claim of authority to search, engage in a

show of force or other types of coercive action, threaten or attempt to deceive, or

engage in other illegal police action prior to the giving of consent. In weighing

these factors, we conclude Ahmetovic’s giving of permission to McCarthy to

remove the contraband from his pocket was voluntary.

       We conclude the warrantless search of Ahmetovic’s pocket was valid under

the plain-feel and consent exceptions to the warrant requirement. We therefore

affirm the district court’s denial of Ahmetovic’s motion to suppress evidence

concerning or flowing from the search of his pocket.

       C.     Vehicle Search

       Finally, Ahmetovic challenges the search of the vehicle, contending the

application of the automobile exception to the warrant requirement is not “justified

under the facts of this case.” However, Ahmetovic does not challenge the district

court’s alternative conclusion that he, as a mere passenger with no possessory

interest in the vehicle, lacked a reasonable expectation of privacy in the vehicle,

and therefore lacked standing to challenge the search. See Rakas v. Illinois, 439

U.S. 128, 148–50 (1978); State v. Haliburton, 539 N.W.2d 339, 342–43 (Iowa

1995). Because Ahmetovic does not challenge that ground for validation of the

search, we deem such an argument waived and affirm the district court. See Iowa

R. App. 6.903(2)(g)(3). We decline to entertain Ahmetovic’s request that we
                                        11


examine the automobile exception’s “application in light of technological advances

since its creation 92 years ago,” as our supreme court recently elected to retain

the automobile exception when faced with the same request. See Storm, 898

N.W.2d at 156.

IV.   Conclusion

      We affirm in all respects the district court’s denial of Ahmetovic’s motion to

suppress.

      AFFIRMED.
