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Case No. 18-0412

State of Iowa
Austin Michael Muilenberg


State of Iowa


Austin Michael Muilenberg

Attorney for the Appellee

Timothy M. Hau, Assistant Attorney General

Attorney for the Appellant

Theresa R. Wilson, Assistant Appellate Defender

Court of Appeals

Court of Appeals Opinion

Opinion Number:
Date Published:
May 15, 2019

            Appeal from the Iowa District Court for Clay County, Patrick M. Carr (suppression) and Nancy L. Whittenburg (trial), Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Carr, S.J., takes no part.  Opinion by Mullins, J.  Special concurrence by Tabor, P.J.  (18 pages)

            Austin Muilenburg appeals his convictions of three drug-related crimes following a trial on the minutes of evidence.  He argues: (1) the district court erred in denying his motion to suppress evidence, contending the warrant was unsupported by probable cause; (2) his trial counsel rendered ineffective assistance in failing to challenge the probable cause supporting the warrant, specifically the qualifications of the police officer who applied for the warrant; and (3) there was insufficient evidence to support his convictions of possession of cocaine and prescription drugs without a valid prescription.  OPINION HOLDS: We find there was a substantial basis for the issuing magistrate to conclude probable cause existed for the issuance of the search warrant and the search of Muilenburg’s bedroom did not exceed the scope of the warrant.  Accordingly, we affirm the district court’s denial of Muilenburg’s motion to suppress.  We find Muilenburg has not shown he received ineffective assistance of counsel.  We additionally find there is sufficient evidence to support Muilenburg’s convictions for possession of cocaine and prescription drugs without a valid prescription.  SPECIAL CONCURRENCE ASSERTS: I write separately because I disagree with the majority’s assertion that knowledge of the nature of the prescription drugs is not an element of Iowa Code section 155A.21(1) (2017).  The court in State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973), found proof of unlawful “possession” requires the State to establish the accused knew of the nature of the substance in his or her possession.  I believe the same proof requirement applies to the term “possession” in section 155A.21(1).

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