IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1662
                           Filed September 11, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KAMIE JO SCHIEBOUT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sioux County, Patrick H. Tott, Judge.



      Kamie Jo Schiebout appeals her conviction and sentence for possession of

methamphetamine as a habitual offender. AFFIRMED IN PART, SENTENCE

VACATED, AND REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, (until withdrawal), and Melinda J.

Nye, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and May, JJ.
                                         2


MAY, Judge.

       Kamie    Jo   Schiebout   appeals     her   conviction   for   possession   of

methamphetamine as aN habitual offender. She contends the district court erred

in denying her motion to suppress and in imposing sentence. We affirm the district

court’s suppression ruling, but we remand for resentencing.

       I. Facts and Prior Proceedings

       In May 2017, Schiebout had an outstanding warrant for her arrest. On May

22, the Sioux County Sheriff’s office received a tip that Schiebout could be located

at an Orange City church. A deputy found Schiebout standing in the rear of the

church. He informed Schiebout he was arresting her. He did not handcuff her to

avoid her embarrassment.

       They exited the church. As they made their way to the deputy’s squad car,

Schiebout asked to wait a moment so she could confer with her mother, who was

inside the church. The deputy agreed. Schiebout then walked about ten feet

toward the church. She deposited her purse on the ground next to the church

doors. She then walked away from the purse.

       The deputy did not think this was normal or innocent. He was familiar with

Schiebout’s history of substance abuse. And he knew she was living with a local

drug trafficker. Given this background, and Schiebout’s attempt to abandon her

purse, the deputy believed the purse contained contraband. So, he walked over

and picked the purse up.

       At this point, Schiebout’s mother emerged from the church. Schiebout then

“grabbed the purse” from the deputy “and gave it to her mom.” The deputy
                                         3


responded by taking the purse away from Schiebout’s mother. He secured the

purse in his car and placed Schiebout in the backseat.

       The deputy transported Schiebout and her purse to the sheriff’s office. At

the station, a drug-sniffing dog indicated the purse contained illegal drugs. The

deputy then sought and obtained a search warrant for the purse. The subsequent

search revealed several individual baggies of methamphetamine.

       The State charged Schiebout with possession of methamphetamine, third

or subsequent offense, with the habitual-offender enhancement. Schiebout moved

to suppress the methamphetamine.          The district court denied her motion.

Schiebout agreed to a trial on the minutes. The district court found Schiebout guilty

of possession of methamphetamine, third or subsequent offense, as an habitual

offender, in violation of Iowa Code sections 124.401(5), 902.8, and 902.9(1)(c)

(2017). Consistent with this verdict, the district court sentenced Schiebout to a

term of incarceration not to exceed fifteen years with a mandatory minimum of

three years. Schiebout appeals.

       II. Scope and Standard of Review

       Our review is de novo as to Schiebout’s constitutional claims. See State v.

Vance, 790 N.W.2d 775, 780 (Iowa 2010). “We are required to review the record

and independently evaluate the totality of the circumstances.” State v. Hoskins,

711 N.W.2d 720, 725 (Iowa 2006).

       We review sentencing challenges for corrections of errors at law. State v.

Freeman, 705 N.W.2d 286, 287 (Iowa 2005).
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       III. Analysis

       We first address Schiebout’s challenge to the district court’s suppression

ruling.1   Schiebout has the right to be free from unreasonable searches and

seizures. This right is protected by the Fourth Amendment of the United States

Constitution, and by article I, section 8 of the Iowa Constitution. The State has the

burden of showing that Schiebout’s rights were not violated.

       Police seized Schiebout’s purse without a warrant. Therefore, the seizure

was per se unreasonable unless a recognized exception applies. See State v.

Simmons, 714 N.W.2d 264, 271 (Iowa 2006) (“Unless a recognized exception to

the warrant requirement exists, searches and seizures conducted without a

warrant per se unreasonable.”). “These exceptions include searches based on

consent, plain view, probable cause coupled with exigent circumstances, searches

incident to arrest, and those based on the emergency aid exception.” Id. at 272

(internal quotation marks and citation omitted). The State must prove an exception

applies by a preponderance of the evidence. Id.

       The State claims seizure of Schiebout’s purse was justified by the search

and seizure incident to arrest (SITA) exception. See, e.g., State v. King, 867

N.W.2d 106, 133 (Iowa 2015) (Appel, J., dissenting) (“While the warrant

requirement is central to search and seizure law, there have been well-recognized

exceptions to it, including searches and seizures incident to arrest . . . .”); State v.



1
  Because Schiebout abandoned her purse on the ground near the church doors and
walked away from it, we question whether Schiebout has standing to challenge the
seizure. See State v. Bumpus, 459 N.W.2d 619, 625 (Iowa 1990) (concluding a defendant
did not have standing to challenge the search of a pouch after he abandoned it during a
pursuit). However, because the State does not raise this issue, we assume Schiebout
regained possession of the purse when she took it from the deputy.
                                            5

Halverson, No. 16-1614, 2017 WL 5178997, at *2 (Iowa Ct. App. Nov. 8, 2017) (“A

search incident to arrest is reasonable within the meaning of the Fourth

Amendment and article I, section 8 of the Iowa Constitution.”). This exception

permits a “search [and seizure] of the person arrested and of the immediately

surrounding area, meaning the area from which the person might gain possession

of a weapon or destructible evidence.”2 State v. Vance, 790 N.W.2d 775, 786

(Iowa 2010); see also Gaskins, 866 N.W.2d at 15 (“Our decision today does not

preclude a warrantless SITA under circumstances in which the security of an

arresting officer is implicated . . . or when the arrested person is within reach of

contraband and thus able to attempt to destroy or conceal it.”).

       These conditions are met here. The deputy went to the church to execute

a valid arrest warrant. When the deputy located Schiebout in the church, he

notified Schiebout that he was placing her under arrest. Schiebout was not free to

leave the area. As such, we conclude Schiebout was under arrest when, moments

later, the deputy seized the purse from Schiebout’s mother.

       Moreover, we find the purse was in the immediately surrounding area—as

demonstrated by her ability to grab the purse and hand it to her mother. This

conduct exemplifies the need for SITA to preserve evidence: By taking the purse



2
  While SITA challenges most often challenge the resulting search, we recognize the
principles justifying SITA are equally applicable to seizures contemporaneous to arrest.
See State v. Gaskins, 866 N.W.2d 1, 10 (Iowa 2015) (recognizing both searches and
seizures incident to arrest); King, 867 N.W.2d at 133 (Appel, J., dissenting) (recognizing
seizures incident to arrest as a well-recognized exception to the warrant requirement);
State v. Kramer, 231 N.W.2d 874, 878 (Iowa 1975); see also United States v. Robinson,
414 U.S. 218, 236 (1973) (permitting seizure of defendant’s property within immediate
control during an arrest); United States v. Fulton, 192 F. Supp. 3d 728, 731 (S.D. Tex.
2016) (recognizing seizure incident to arrest as a recognized exception to the warrant
requirement).
                                         6


from the deputy and then handing it to another person, we find Schiebout was

carrying out a last-ditch effort to dispose of her contraband. See State v. Saxton,

No. 14-0124, 2014 WL 7343522, at *2 (Iowa Ct. App. Dec. 24, 2014) (finding SITA

permissible because evidence in defendant’s backpack was susceptible to

destruction if the defendant was permitted to leave the backpack with another

person).

      Schiebout contends the SITA exception does not apply because the deputy

was not subjectively “concern[ed] about safety or weapons” and had no subjective

“suspicion” that the purse contained contraband. We disagree for two reasons.

First, as a factual matter, we find the deputy was subjectively concerned that the

purse contained contraband. We accept his testimony that he “grabbed the purse

away from her mother because the behavior with this whole purse was extremely

unusual, and based on [his] experience with this, [he] had reason to believe that

there was probably something illegal in that purse.”

      That aside, our law is clear that the legality of a search or seizure “does not

depend on the actual motivations of the police officers involved.” Simmons, 714

N.W.2d at 272.     Rather, in deciding whether an exception to the warrant

requirement exists, “the court must assess a police officer’s conduct based on an

objective standard.” Id. As explained above, the objective circumstances justified

the deputy’s seizure of the purse under the SITA exception. The district court was

correct, therefore, in denying the motion to suppress.

      Schiebout also challenges her sentence. The State concedes resentencing

is necessary. We agree.
                                          7


      Iowa     Code     section     124.401(5)      criminalizes     possession    of

methamphetamine. It states in pertinent part:

              It is unlawful for any person knowingly or intentionally to
      possess a controlled substance . . . . Any person who violates this
      subsection is guilty of a serious misdemeanor for a first offense. A
      person who commits a violation of this subsection and who has
      previously been convicted of violating this chapter or chapter 124B
      or 453B, or chapter 124A as it existed prior to July 1, 2017, is guilty
      of an aggravated misdemeanor. A person who commits a violation
      of this subsection and has previously been convicted two or more
      times of violating this chapter or chapter 124B or 453B, or chapter
      124A as it existed prior to July 1, 2017, is guilty of a class “D” felony.

      The district court found Schiebout guilty of possession of methamphetamine

as a third or subsequent offense, a class “D” felony under Iowa Code section

124.401(5). She was sentenced accordingly.

      The parties agree, however, that a violation of section 124.401(5) is only

considered a third offense—and a felony—when the defendant has been

previously “convicted two or more times of violating [Iowa Code chapter 124] or

chapter 124B or 453B, or chapter 124A as it existed prior to July 1, 2017.” The

parties also agree Schiebout has not been previously convicted “two or more

times” under any of those chapters. She does have two prior drug convictions,

one of which involved a violation of Iowa Code chapter 124. But her other prior

drug conviction involved federal law, not the Iowa Code. Therefore, it does not

“count” as a prior conviction for purposes of section 124.401(5).
                                     8




      Because Schiebout has only one relevant prior conviction, her current

offense should be treated as an aggravated misdemeanor under section

124.401(5). We vacate her sentence and remand for resentencing.

      AFFIRMED IN PART, SENTENCE VACATED, AND REMANDED FOR

RESENTENCING.