IN THE COURT OF APPEALS OF IOWA

No. 18-0032

Filed February 6, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DAVID PAUL PINNEY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Duane E. 

Hoffmeyer, Judge.

The defendant appeals from his convictions for possession of prescription 

drugs and possession of a controlled substance. AFFIRMED.

Priscilla E. Forsyth, Sioux City, for appellant.

Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.

Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

David Pinney was convicted of possession of a controlled substance 

(methamphetamine), as a habitual offender; possession of a controlled substance 

(OxyContin), as a habitual offender; and unlawful possession of a prescription drug 

(OxyContin). In this direct appeal, Pinney contends the district court erred in 

denying his motion to suppress evidence obtained as a result of an allegedly 

unlawful search of his person. Pinney also claims the district court erred in failing 

to merge his convictions and sentences for possession of a controlled substance 

(OxyContin) and unlawful possession of a prescription drug (OxyContin). 

The relevant events occurred in June 2016 during a sting operation 

conducted by a tristate drug task force. On the day in question, Pinney arrived at 

a gas station with two other people. One of the other people was the target of the 

sting operation. Although the police were not expecting Pinney to be at the scene, 

they recognized Pinney as a known methamphetamine dealer and sought to 

conduct a stop and frisk of his person. An officer ordered Pinney to the ground, 

but Pinney resisted and instead tried to walk away. An officer tackled Pinney to 

the ground, and Pinney continued to resist by refusing to place his hands on his 

back and pinning them under his chest as officers tried to pull his arms behind his 

back. An officer then searched Pinney’s person. While searching Pinney, the 

officer discovered a pill bottle containing OxyContin. After Pinney stood up, the 

officers searched him more thoroughly and discovered a coin pouch containing 

methamphetamine. As a result of Pinney’s refusal to comply with officers during 

the stop and frisk, he was arrested for interference with official acts, in violation of 

Iowa Code section 719.1 (2016). He was convicted of this offense in a separate 
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proceeding not at issue in this appeal. As a result of the officers’ search of Pinney, 

he was charged with and ultimately convicted of the offenses at issue in this 

appeal. 

We first address Pinney’s contention that the search of his person violated 

the Fourth Amendment of the federal constitution and Article I, section eight of the 

state constitution. “We review the denial of a motion to suppress on constitutional 

grounds de novo.” State v. Ingram, 914 N.W.2d 794, 798 (Iowa 2018). In our 

review, “we make an independent evaluation [based on] the totality of the 

circumstances as shown by the entire record.” State v. Baldon, 829 N.W.2d 785, 

789 (Iowa 2013) (alteration in original) (quoting State v. Kurth, 813 N.W.2d 270, 

272 (Iowa 2012)). We afford deference to the district court’s factual findings due 

to the court’s ability to observe the witnesses. See State v. Kreps, 650 N.W.2d 

636, 640 (Iowa 2002).

The Fourth Amendment to the United States Constitution safeguards “[t]he 

right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures.” U.S. Const. amend. IV. Article I 

section 8 “of the Iowa Constitution is substantially identical in language to the 

Fourth Amendment[,]” and both provisions are “usually deem[ed] . . . identical in 

scope, import, and purpose.” Kreps, 650 N.W.2d at 640-41 (citing Iowa Const. art.

I, § 8; State v. Scott, 409 N.W.2d 465, 467 (Iowa 1987)). Although Pinney cites 

the state constitution, he does not independently develop the claim. When a party 

merely adds “a citation to article I, section 8 of the Iowa Constitution but then 

generally adopt[s] federal caselaw in describing the claim . . . we may, in our 

discretion, decide the case based on potentially dispositive federal constitutional 
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grounds.” Ingram, 914 N.W.2d at 800. Because Pinney does not develop 

separate arguments under the federal and state constitution, we do not consider 

them separately.

The touchstone of any search-and-seizure claim is reasonableness under 

the circumstances presented. See Pennsylvania v. Mimms, 434 U.S. 106, 108-09 

(1977) (“The touchstone of our analysis under the Fourth Amendment is always 

‘the reasonableness in all the circumstances of the particular governmental 

invasion of a citizen’s personal security.’” (citation omitted)); Kreps, 650 N.W.2d at

641 (“The Fourth Amendment imposes a general reasonableness standard upon 

all searches and seizures.”). A search incident to a valid arrest is reasonable within 

the meaning of the Fourth Amendment and article I, section 8 of the Iowa 

Constitution. See State v. Peterson, 515 N.W.2d 23, 25 (Iowa 1994) (“[W]e hold 

that in the case of a lawful custodial arrest a full search of the person is not only 

an exception to the warrant requirement of the Fourth Amendment, but is also a 

‘reasonable’ search under that Amendment.” (quoting United States v. Robinson, 

414 U.S. 218, 235 (1973))). A search incident to arrest “allows a police officer ‘to 

search a lawfully arrested individual’s person and the immediately surrounding 

area without a warrant.’” State v. Christopher, 757 N.W.2d 247, 249 (Iowa 2008)

(quoting United States v. O’Connell, 408 F. Supp. 2d 712, 723 (N.D. Iowa 2005)). 

Here, Pinney was arrested for his interference with official acts. His arrest 

must be supported by probable cause to permit consideration of evidence obtained 

through a search of his person incident to his arrest. See id. at 250 (“[I]f there is 

probable cause to arrest a person, then a search of the person arrested and the 

area within the person’s immediate control is lawful.” (quoting State v. Freeman,
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705 N.W.2d 293, 298 (Iowa 2005))). “Probable cause exists if the totality of the 

circumstances as viewed by a reasonable and prudent person would lead that 

person to believe that a crime has been or is being committed and that the arrestee 

committed or is committing it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 

1990). 

Probable cause existed to arrest Pinney for interference with official acts. 

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

or obstructs anyone known by the person to be a peace officer . . . . of any civil or 

criminal process . . . .” Iowa Code § 719.1(1)(a). The officers identified themselves 

as law enforcement when approaching Pinney. Their police badges were visible. 

Pinney refused to stop for the officers and pinned his arms under his chest as the 

officers attempted to conduct a stop and frisk. The officers were concerned Pinney 

might have weapons hidden and was attempting to access them. His conduct 

obstructed the officers’ stop and frisk. Further, because of Pinney’s conduct, the

officers’ investigation into the drug transaction was hindered and delayed. This is 

sufficient to establish probable cause of interference with official acts. Because 

the officers’ search of Pinney was contemporaneous to his arrest and there was 

probable cause to arrest Pinney, the district court properly denied the motion to 

suppress the drugs found on Pinney’s person.

We next address Pinney’s claim that the district court should have merged

his convictions for possession of a controlled substance (OxyContin) and unlawful 

possession of a prescription drug (OxyContin). Pinney claims the failure to merge 

the convictions violated the merger statute, Iowa Code section 701.9, and the 

Double Jeopardy Clause. “Alleged violations of the merger statute are reviewed 
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for corrections of errors at law. Double jeopardy claims are reviewed de novo.” 

State v. Stewart, 858 N.W.2d 17, 19 (Iowa 2015) (citation omitted). 

In several cases, this court has observed that our merger statute, Iowa 

Code section 701.9, codifies the protection from cumulative punishment secured 

by the Double Jeopardy Clause of the United States Constitution. See, e.g., State 

v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997); State v. Halliburton, 539 N.W.2d 

339, 344 (Iowa 1995); State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993). The 

supreme court has explained the merger statute as follows:

By its terms, the merger statute protects a person from conviction “of 

a public offense which is necessarily included in another public 

offense of which the person is convicted.” Iowa Code § 701.9. If a 

jury returns a verdict conflicting with this statute, the court must enter 

judgment on the greater offense only. Id.; see Iowa R.Crim. P. 6(2) 

(defendant may be convicted of offense charged, or an included 

offense, but not both).

State v. Daniels, 588 N.W.2d 682, 683 (Iowa 1998).

To succeed on his claim, Pinney must be able to make a threshold showing 

that it is legally impossible to commit possession of a controlled substance without 

also committing unlawful possession of a prescription drug. See Stewart, 858 

N.W.2d at 21. However, “dual convictions might nonetheless be affirmed if there 

is clear evidence the legislature intended two punishments to apply to the same 

acts or omissions.” See id. at 20. 

An examination of the relevant statutes makes clear Pinney’s claim cannot 

pass the legal impossibility test. It is not legally impossible to commit possession 

of a controlled substance without also committing unlawful possession of a 

prescription drug. Possession of a controlled substance prohibits “any person 

[from] knowingly or intentionally . . . possess[ing] a controlled substance unless 
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such substance was obtained directly from, or pursuant to, a valid prescription or 

order of a practitioner.” Iowa Code § 124.401(5). An individual commits unlawful 

possession of a prescription drug when “found in possession of a drug or device 

limited to dispensation by prescription, unless the drug or device was so lawfully 

dispensed.” Iowa Code § 155A.21(1). One must look no further than Pinney’s 

own convictions to highlight when one could be guilty of possession of a controlled 

substance but not unlawful possession of a prescription drug. In addition to his 

convictions for possession of a controlled substance and unlawful possession of a 

prescription drug stemming from his possession of OxyContin, he was also 

convicted of possession of a controlled substance stemming from his possession 

of methamphetamine. However, because methamphetamine cannot be lawfully 

dispensed by prescription, he could not also be convicted of unlawful possession 

of a prescription drug for his possession of methamphetamine. This example 

reveals an additional element found in unlawful possession of a prescription drug 

absent from possession of a controlled substance—the requirement that the drug 

be dispensable by prescription. Because this is not an element of possession of 

a controlled substance, it is possible to commit possession of a controlled 

substance without necessarily committing unlawful possession of a prescription 

drug. 

Further, even if Pinney satisfied the legal impossibility test, the convictions 

would not merge. The statutes serve different purposes and evidence the 

legislature intended double punishment. See Halliburton, 539 N.W.2d at 344 (“If 

the Double Jeopardy Clause is not violated because the legislature intended 

double punishment, section 701.9 is not applicable and merger is not required.”). 
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The purpose of chapter 155A, which prohibits unlawful possession of a prescription 

drug, is “to promote, preserve, and protect the public health, safety, and welfare 

through the effective regulation of the practice of pharmacy and the licensing of 

pharmacies, pharmacists, and others engaged in the sale, delivery, or distribution 

of prescription drugs.” Iowa Code § 155A.2(1). The purpose of chapter 124, which 

prohibits the possession of a controlled substance, is not specifically set out in the 

code, however, its focus on harmful substances indicates it seeks to protect the 

public from the harmful effects of the substances themselves. Cf. Houck v. Iowa 

Bd. of Pharmacy Exam’rs, 752 N.W.2d 14, 19 (Iowa 2008) (noting chapter 124 

“categorize[s] various substances according to their relative potential for abuse, 

the degree to which the substance has an accepted medical use, and likelihood 

that abuse of the substance would lead to psychic or physical dependence”).

In sum, Pinney’s convictions for possession of a controlled substance and 

unlawful possession of a prescription drug do not merge, and the district court 

properly denied Pinney’s motion to suppress. We affirm the judgment of the district 

court.

AFFIRMED.