IN THE COURT OF APPEALS OF IOWA
No. 22

- 0558 Filed September 27, 2023

STATE OF IOWA, Plaintiff

- Appellee,

vs. BRIAN WAYNE BOYD , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Des Moines County, Mark Kruse , Judge.

Brian Boyd appeals the denial of his motion to suppress. AFFIRMED.

R.A. Bartolomei of Bartolomei & Lange, P.L.C. , Des Moines , for appellant.
Brenna Bird , Attorney General, and Israel Kodiaga and Anagha Dixit , Assistant Attorney s General, for appellee.

Heard by Bower, C.J. , and Ahlers and Chicchelly, JJ.2

AHLERS , Judge

. In July 2019, a Des Moines County d eputy s heriff sought a warrant to search a Burlington property owned by Brian Boyd. The deputy provided an affidavit that (1) described his experience and expertise investigating drug crimes; (2) described the property; (3) noted in 2012 that investigators found large quantities of drugs at Boyd’s separate place of business; (4) stated investigators found drugs, large sums of mo ney, and guns at the property in 2014 ; (5) stated since 2017 investigators received various anonymous tips about Boyd trafficking methamphetamine; (6) stated that, in January 2019 , investigators interviewed Heather West who stated Boyd supplied her with me thamphetamine, she had lived with him, she knew he was involved in drug trafficking, and she had seen a hidden room in his basement she believed he used to hide drugs, money, or guns; (7) stated that within the last forty

- eight hours officers executed a co ntrolled drug buy from an individual who went to Boyd’s property about twenty minutes later, walked in as if he was expected at Boyd’s property, then left about four to five minutes later, and “vehicles were parked in the driveway of Boyd’s residence” ; and (8) explained the individual’s conduct of visiting Boyd’s property after the controlled
b u y was consistent with various aspects of the drug trade. A judge determined the warrant application established probable cause and granted the warrant. The ensuin g search of the property turned up methamphetamine, a digital scale, and small baggies commonly used to package and distribute methamphetamine. The State charged Boyd with possession of methamphetamine with the intent to deliver, in violation of Iowa Code
section 124.410(1)(b)(7) (2019), and a drug tax stamp violation , in violation of3

section 453B.12. Boyd mo ved to suppress the evidence discovered in the search of his residence, claiming the search warrant was not supported by probable
cause. The distric t court denied the motion. Boyd consented to a trial on the minutes, and the court found him guilty as charged. Boyd appeals, challenging the
search warrant under both the Fourth Amendment of the United States Constitution and a rticle I, section 8 of the Iowa Constitution. 1 Reviewing Boyd’s appellate brief, we distill his claims down to three points: (1) he asks us to overturn State v. Groff , 323 N.W.2d 204 (Iowa 1982) and revert
to the test articulated in State v. Boyd , 224 N.W.2d 609, 616 (Iowa 1974) to review a claim that a search warrant application contained false information under a rticle I, section 8 of the Iowa Constitution; (2) he contends the district court should have granted his request for a Franks hearing ; 2 and (3) he claims that the search warrant application did not establish probable cause. As Boyd’s claims are rooted in our constitutions, our review is de novo. State v. McNeal , 867 N.W.2d 91, 99 (Iowa 2015). First, we address Boyd’s request we abando n the standard adopted in Groff to assess claims that a search warrant application contained false or misleading

1 To the extent Boyd attempts to claim his Miranda rights were violated , he has waived any claim by failing to develop a supporting argument. See State v. Tyler , 867 N.W.2d 136, 166 n.14 (Iowa 2015), State v. Vaughan , 859 N.W.2d 492, 503 (Iowa 2015). More over, at oral argument, Boyd’s counsel conceded the minutes on which Boyd was tried included no information gleaned from the pre

- Miranda questioning of Boyd. 2 See Franks v. Delaware , 438 U.S. 154, 155

– 56 (1978) (holding “where the defendant makes a substa ntial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause , the Fourth Amendment requires that a hearing be held at the defendant ’ s request”).4

information under a rticle I, section 8 of the Iowa Constitution in favor of the standard previously set out in Boyd . With respect to a rticle I , section 8, Boyd announced a rule permitting a defendant to inquire into the truth of the representations upon which a search warrant has been issued only upon a preliminary showing under oath that an agent or representative of the state has: (1) intenti onally made false or untrue statements or otherwise practiced fraud upon the magistrate; or (2) that a material statement made by such agent or representative is false, whether or not intentional

. 224 N.W.2d at 616 (emphasis added). Four years later, the Supreme Court issued
Franks “and announced a more rigorous requirement for defendants in challenging the truthfulness of an affidavit” under the Fourth Amendment. Groff , 323 N.W.2d
at 207. Franks held “a defendant could challenge the veracity of an affi davit by showing that the affiant: (1) intentionally and knowingly made a false statement, or (2) made a false statement with reckless disregard for the truth.” Id. In Groff , in effort to harmonize the standards under the state and federal constitutions, our supreme court adopted the Franks standard to assess claims that a search warrant application contained false or misleading information under a rticle I, section 8. Id. We cannot abandon the standard adopted by our supreme court in Groff in favor of a different standard. To do so would require us to overturn controlling precedent from our supreme court, which we cannot do. 3 State v. Beck , 8 54 N.W.2d 56 , 64 (Iowa Ct. App. 201 4 ) (“ W e are not at liberty to over rule controlling supreme court

3 Boyd requested our supreme court retain his appeal and revert back to the standard set out in Boyd , but the supreme court transferred the case to this court instead.5

precedent .”). So we reject Boyd’s request to abandon Groff and its adherence with the Franks standard. Second, we address Boyd’s claim that the district court should have granted his request for a Franks hearing. To warran t such hearing, the defendant must “make[] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” and “the allegedly false statem ent is necessary to the finding of probable cause.” Groff , 323 N.W.2d at 208 (alteration in original) (quoting
Franks , 438 U.S. at 155

– 56). To mandate an evidentiary hearing the challenger’s [preliminary showing] must be more than conclusory and must be supported by more than a mere desire to cross

- examine. There must be allegations of deliberate falsehoods or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.
Id. (alteration in original) (emphasis omit ted) (quoting Franks , 428 U.S. at 171). Boyd claims the affidavit misled the issuing judge to believe West, the identified informant, was “a concerned citizen just trying to help law enforcement” when in fact West had been arrested and criminally charged with drug trafficking and could have been attempting to trade information in exchange for a favorable outcome in her own criminal proceedings. Boyd supported his assertion with a deposition of the deputy wherein the deputy admitted he believed West was li kely subject to her own criminal proceedings and was unaware whether West had ever served as an informant in the past. Boyd contends the deputy ’s failure to include this information impacted the credibility of the information provided by West. He
argues the omission of the information from the deputy ’s affidavit was misleading6

to the point of amounting to a false statement in violation of Franks and Groff

. Additionally, Boyd contends the affidavit was misleading because it failed to disclose Boyd was inc arcerated in 2014 when investigators found drugs, guns, and money at his property. However, the deputy was not aware of Boyd’s incarceration at that time. Boyd contends the deputy ’s failure to include that information and hi s failure to discover it amoun ted to a reckless disregard for the truth. Despite Boyd’s claims, we agree with the district court that Boyd failed to make the necessary showing to entitle him to a Franks hearing. Contrary to Boyd’s assertions, he failed to make a preliminary showing t hat the deputy ’s affidavit included false statements or omissions of material fact and that he did so in an intentionally misleading manner or with a reckless disregard for the truth. “Omissions of fact constitute misrepresentations only if the omitted fa cts ‘cast doubt on the existence of probable cause.’” State v. Green , 540 N.W.2d 649, 657 (Iowa 1995) (citation omitted). It was not necessary for the deputy to disclose West’s checkered history and pending drug charges

— the affidavit made clear
West knew of Boyd’s drug dealing because she got drugs from him, implicating her as an illegal drug user. As to the deputy not disclosing that Boyd was incarcerated during 2014 when investigators found the drugs in his home, the deputy had no reason to disclose th at information because he didn’t even know it. Certainly , the deputy could have checked around as to what Boyd was doing at that time, but his decision not to do so did not amount to a reckless disregard for
the truth , nor does it cast doubt on the existe nce of probable cause. As Boyd failed7

to establish the necessary preliminary showing, the district court properly denied his motion for a Franks hearing. 4 Finally, we address Boyd’s claim that the warrant was not supported by probable cause. “The test for probable cause is whether a person of reasonable prudence would believe a crime was committed on the premises to be searched or evidence of a crime could be located there.” State v. Bracy , 971 N.W.2d 563, 567 (Iowa 2022) (internal quotation marks omitted) (quoting State v. Baker , 925 N.W.2d 602 , 613 (Iowa 2019). That said, “we do not make an independent determination of probable cause; rather, we determin e ‘whether the issuing judge had a substantial basis for concluding probable cause existed.’” Id. (quoting State
v. McNeal , 867 N.W2d. 91, 99 (Iowa 2015)). We review the information as it was presented to the judge and “do not strictly scrutinize the suf ficiency of the underlying affidavit.” Id. (quoting McNeal , 867 N.W.2d at 99). We review the affidavit of probable cause in a common sense manner rather than scrutinizing it in a hypertechnical manner. Id. “We draw all reasonable inferences to support the judge’s finding of probable cause and decide close cases in favor of upholding the validity of the warrant.” Id. (quoting Baker , 925 N.W.2d at 614). Boyd attacks the deputy ’s probable cause affidavit from nearly all angles. In doing so, he separates each statement presented in an attempt to demonstrate no individual statement supports a finding of probable cause. “Perhaps, no single piece of information in the application would have sustained probable cause on i ts

4 T o the extent Boyd attempts to claim some other bas e s entitled him to a Franks hearing, those claims are not preserved for our review because he only raised these two bases before the district court.8

own. But that is not required.” Id. at 568. Instead we review all of the information together to determine whether it amounts to probable cause. See id. Certainly the probable cause affidavit referenced events long since passed that would not pro vide probable cause standing alone. See State v. Gogg , 561 N.W.2d 360, 367 (Iowa 1997) (recognizing the basis for a warrant should not be remote in time). But here, long

- past events provide context and help establish a pattern that reveals Boyd’s deep co nnection with drug trafficking. Those long

- past
events , when viewed in conjunction with events from the prior six months , gave the issuing judge a substantial basis to find probable cause that Boyd’s involvement in drug trafficking was not only in the pas t , but was still ongoing. The warrant application paints a picture of an individual and property long involved in drug trafficking. It establishes Boyd kept drugs in his place of business seven years prior. Then it explains that , two years after that, investigators found drugs at the property that was the subject of the search warrant . Three years later anonymous sources started to implicate Boyd in drug trafficking (though no corroborating evidence was provided). Six months pri or to the warrant , a named informant , West, outed Boyd as her drug supplier. 5 And about forty

- eight hours before investigators sought the warrant , a known drug dealer visited Boyd less than half an hour after completing a drug sale in a manner the deputy described as consistent with drug trafficking. Individually, these facts could be discounted as stale, lacking a nexus connecting criminal activity to Boyd’s property, or unreliable.

5 To the extent Boyd argues the warrant did not comply with Iowa Code section 808.3 by not establishing West’s credibility, he is entitled to no relief because section 808.3 only requires written credibility findings when the informant is unnamed. See Stat

e v. Weir , 414 N.W.2d 327, 331 (Iowa 1987).9

But put together, they tip the scales in favor of determining the issu ing judge had a substantial basis to find probable cause. See Bracy , 971 N.W.2d at 567 (recognizing “we do not make an independent determination of probable cause” and we “decide close cases in favor of upholding the validity of the warrant” (citations om itted)).
As we conclude the district court properly den ied Boyd’s request for a
Franks hearing and the issuing judge had a substantial basis to find probable cause supporting the warrant, we affirm.
AFFIRMED.