Opinion
No. 5-770 / 05-0316
Filed January 19, 2006
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman (motion to suppress) and Mary J. Sokolovske (trial), Judges.
Misty Jones appeals from her convictions, following a bench trial, for possession with intent to deliver methamphetamine and failure to affix a drug tax stamp. AFFIRMED.
Martha M. McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Mark A. Campbell, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Misty Jones appeals from her convictions, following a bench trial, for possession with intent to deliver methamphetamine and failure to affix a drug tax stamp. She contends the court erred in rejecting the claim that her first trial counsel's ineffective assistance constituted good cause to excuse the failure to file a timely motion to suppress. We affirm.
Background Facts and Proceedings.
Jones was a passenger in a vehicle that was stopped by Sioux City police officer, Dane Wagner. After the driver was arrested on an outstanding warrant, Officer Wagner searched the vehicle, and discovered a small gram scale. Officer Wagner also arrested Jones, intending to charge both Jones and the driver with possession of drug paraphernalia. Upon their arrival at the jail, Officer Wagner discovered three bags of methamphetamine on Jones's person.
In August of 2003, the State charged Jones with possession with the intent to deliver methamphetamine and failure to affix a drug tax stamp. The district court subsequently appointed the public defender's office to represent her. Jones was arraigned on September 3. Both on September 25 and December 4, the district court granted counsel's motions for extension of pretrial deadlines. The second order granted Jones an extension until January 2, 2004, in which to file pre-trial motions and to take depositions. On December 8, attorney Martha McMinn was retained and entered an appearance on behalf of Jones.
On February 5, 2004, Officer Wagner was deposed, and on February 11, Jones filed a motion to suppress certain evidence. The State resisted, arguing the motion should be denied because it was filed more than forty days after Jones's arraignment. McMinn, on behalf of Jones, responded by asserting that Jones's prior counsel's ineffective assistance constituted good cause to excuse the late-filed motion to suppress. Following an evidentiary hearing, the court denied the motion as untimely. It rejected the claim that ineffective assistance of prior counsel could constitute good cause. Nonetheless, the court concluded that the stop of the vehicle, during which the incriminating evidence was discovered, was illegal and that all evidence obtained following that stop would have been suppressed. Jones appeals, contending ineffective assistance of prior counsel constitutes good cause for her failure to timely file a motion to suppress.
Scope of Review.
We review the district court's ruling on whether good cause exists for an untimely motion to suppress for an abuse of discretion. State v. See, 532 N.W.2d 166, 168 (Iowa Ct.App. 1995).
Good Cause.
Iowa Rule of Criminal Procedure 2.11(4) requires that a motion to suppress evidence be filed not later than forty days after arraignment. Here, Jones's motion to suppress was filed on February 11, 2004, well beyond that forty-day timeframe as extended to January 2, 2004. Thus, when the motion came on for hearing, Jones's second counsel, McMinn, maintained prior counsel was ineffective in failing to have filed the motion in a timely fashion. The court rejected this claim, and Jones asserts on appeal that this ruling was in error.
The failure to raise a timely suppression motion constitutes a waiver of the objection to the evidence. Iowa R. Crim. P. 2.11(3). However, a court, for good cause shown, may grant relief from such waiver. Id. The Iowa Supreme Court has been firm in holding unexcused late motions constitute a waiver. State v. Froning, 328 N.W.2d 333, 335 (Iowa 1982).
We first recognize that counsel may be found ineffective by virtue of having filed an untimely motion to suppress. State v. Hrbek, 336 N.W.2d 431, 436 (Iowa 1983) (holding that trial counsel's failure promptly to move to suppress an inculpatory statement denied a defendant the effective assistance of counsel). However, we fail to see how Jones's prior counsel could possibly be considered ineffective on this record. It is clear that although prior counsel did not file any motion to suppress within the original forty-day timeframe, he had secured two extensions of time in which to file any pre-trial motions and for the taking of depositions. When new counsel entered an appearance on December 8, 2003, there was still almost one full month remaining under the second extension of time in which to file pre-trial motions. Despite this, Jones's second counsel filed no such motion, did not seek another extension of time, nor provided any reason for not doing either.
When considering what constitutes good cause for an untimely motion to suppress, we examine the adequacy of the defendant's reasons for failure to comply with applicable rules of procedure and whether the State was prejudiced as a result. State v. Eldridge, 590 N.W.2d 734, 736 (Iowa Ct.App. 1999). The sole reason asserted below was the ineffective assistance of counsel. We note the record does not reflect defense counsel's reasons for the failure to have obtained certain evidence or to have scheduled the police officer's deposition earlier, both of which counsel now suggests may excuse the late filing. As the district court found, there was nothing in the record to suggest Officer Wagner was not available for deposition at an earlier date. Accordingly, we cannot conclude the court abused its discretion in determining good cause did not excuse the untimely motion to suppress.
Prejudice.
Regardless of whether either prior or current counsel for Jones breached an essential duty to file a timely motion to suppress the evidence obtained following the stop of the vehicle in which she was a passenger, we cannot discern any prejudice that Jones suffered. To prove the requisite Strickland prejudice, Jones must prove a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
The Fourth Amendment to the United States Constitution, and article I section 8 of the Iowa Constitution, protect individuals against unreasonable searches and seizures. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). Searches conducted without a warrant are per se unreasonable unless an exception to the warrant requirement applies. Id. One such exception, first recognized in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), allows an officer to stop an individual or vehicle for investigatory purposes based on a reasonable suspicion that a criminal act has occurred or is occurring. Kinkead, 570 N.W.2d at 100 (citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
In determining whether an officer had a reasonable suspicion sufficient to permit a Terry stop, we consider whether the officer had "specific and articulable cause to support a reasonable belief that criminal activity may have occurred." Kinkead, 570 N.W.2d at 100 (citations omitted). In making this determination, we look at the facts available to the officer at the time of the stop. State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995). An officer may make an investigatory stop with "considerably less than proof of wrongdoing by a preponderance of the evidence." State v. Richardson, 501 N.W.2d 495, 496-97 (Iowa 1993) (quoting United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)). When a peace officer observes a traffic offense, however minor, the officer has probable cause to stop the driver of the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1997). Furthermore, an officer may stop a vehicle based on concerns for highway safety. State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993). An objective standard is utilized in reviewing the officer's chosen actions. See State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996) (noting we consider the reasonableness of the stop based on an objective standard, and do not depend upon the actual motivation of the individual officer).
On this record we cannot conclude that the result of the motion to suppress would have been different even if counsel had made a timely motion to suppress. In other words, we conclude the motion to suppress was not meritorious. Officer Wagner testified he stopped the vehicle to investigate what he observed to be a cracked windshield. Based on our review of the record, we conclude the facts known to the arresting officer, at the time, supported his reason for stopping the vehicle in which Jones was a passenger. The district court, however, took a different approach in determining whether the stop was reasonable. In its ruling, the court focused on a careful examination of the physical condition of the windshield, based on the photographic and video evidence, as well as on the court's first-hand inspection of the vehicle.
As noted above, in analyzing whether the officer had sufficient suspicion to support the stop, reviewing courts must look at the facts available to the officer at the time of the stop. Haviland, 532 N.W.2d at 768. We believe the district court went beyond those facts when it proceeded to the street during the suppression hearing to conduct a first-hand viewing of the cracked windshield. The court, in fact, sat in the driver's seat to view the crack and found that "the crack did not prevent [the driver] from having a clear view out the windshield." Unfortunately, this close-up and methodical scrutiny was not available to Officer Wagner at the time he stopped the vehicle. He did not have the luxury of a close scrutiny of the windshield, and certainly did not sit in the driver's seat before deciding to investigate the situation. Instead, Officer Wagner testified
I noticed it had a cracked windshield that went directly within the driver's line of vision in comparison where the driver was sitting in the vehicle. After the vehicle turned on to West 19th, I did perform a traffic stop on that vehicle for the equipment violation of a broken windshield.
Although in retrospect, the driver's vision may not have been significantly impaired by the crack in the windshield, we nonetheless find reasonable the officer's position that at the time of the stop he believed from his vantage point, the crack potentially could have obscured the driver's line of vision. This was reasonable suspicion based on articulated facts, to support a Terry stop.
Moreover, the district court strongly intimated that it believed Officer Wagner used the cracked windshield as a pretext to pull over this vehicle. The court specifically found that "Officer Wagner's objective and purpose for pulling the vehicle over was to investigate for potential drug law violations." Of course, the motivation for stopping a vehicle is not controlling in determining whether reasonable suspicion existed, and the given reason for a stop may be pretextual. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Rather, the test is an objective one. State v. Heminover, 619 N.W.2d 353, 360 (Iowa 2000).
We conclude the officer's stop of the vehicle was objectively reasonable. Although upon a close, retrospective investigation the crack certainly was not severe and excessive, there was indeed a crack that ran the length of the windshield. See Iowa Code § 321.438(1) (2003) ("A person shall not drive a motor vehicle equipped with . . . windows which do not permit clear vision."). It is not unreasonable to believe that the crack could have impeded the vision of the vehicle's driver, and thus constituted a safety hazard. An investigatory stop was reasonable under these circumstances, to confirm or dispel the officer's suspicion. See United States v. Hickman, 523 F.2d 323, 327 (9th Cir. 1975) (recognizing the purpose of an investigatory stop is to allow a police officer to confirm or dispel suspicions of criminal activity through reasonable investigation). The motion to suppress therefore should properly have been denied.
Conclusion.
We conclude the court did not abuse its discretion in determining good cause did not excuse the untimely motion to suppress. Furthermore, even if the motion had been made in a timely fashion, it would have been without merit as the officer has reasonable suspicion to stop the vehicle.