Opinion
No. 2-805 / 01-1840
Filed January 15, 2003
Appeal from the Iowa District Court for Linn County, Jane F. Spande and Michael J. Newmeister, District Associate Judges.
Samantha Lynn Ross appeals from the judgment and sentence entered following her conviction for operating while intoxicated, in violation of Iowa Code section 321J.2 (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Denver D. Dillard, County Attorney, and Brian D. Claney, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Samantha Lynn Ross appeals from the judgment and sentence entered following her conviction for operating while intoxicated in violation of Iowa Code section 321J.2 (2001). She contends the district court erred in denying her motion to suppress and that her counsel provided ineffective assistance. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
On August 5, 2001, at approximately 3:00 a.m., a Marion police officer observed a vehicle traveling in front of him that did not have a rear license plate as required by Iowa Code section 321.37. The officer activated his top lights and stopped the vehicle driven by Ross. At the suppression hearing the officer testified that he noticed the temporary paper license plate in the rear window of the vehicle as he activated his lights and pulled up behind Ross's vehicle.
The officer then approached the driver's side of the vehicle and informed Ross she was being stopped because she did not have a rear license plate and asked her about the car and for the purchase agreement. Ross explained the car belonged to friend and she did not know any details about it. The officer further testified that while speaking with Ross he noticed the odor of alcohol and, upon questioning, Ross admitted she had a couple of beers or drinks prior to being stopped. The officer had Ross perform several field sobriety tests. Based upon her performance on these tests the officer determined Ross was under the influence of alcohol and placed her under arrest for operating while intoxicated. At the police station Ross consented to and performed an intoxilyzer test. The test showed Ross had a breath alcohol level of .151.
Once the officer activated his lights a video camera automatically began recording and thus these events were captured on videotape.
Ross was charged by trial information with operating while intoxicated (OWI) in violation of Iowa Code section 321J.2. Prior to the filing of the trial information Ross filed a motion to suppress all evidence obtained after the stop. Ross asserted the traffic stop violated her right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution and article 1, section 8 of the Iowa Constitution because the officer did not have a reasonable, specific, and articulable reason to stop her. Following an evidentiary hearing the district court denied the motion to suppress. A stipulated bench trial on the minutes of evidence was held. The trial court found Ross guilty as charged. It sentenced Ross to serve two days in jail and pay a fine of $1000.
II. SCOPE AND STANDARDS OF REVIEW
A challenge to the district court's ruling on a motion to suppress implicates the Fourth and Fourteenth Amendments to the United States Constitution. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). We interpret the scope and purpose of article I, section 8, of the Iowa Constitution as being the same as federal interpretations of the Fourth Amendment. State v. Breuer, 577 N.W.2d 41, 44 (1998). We review constitutional issues de novo. Id. In doing so we independently evaluate the totality of the circumstances shown by the record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give deference to the trial court's findings of fact because of its opportunity to assess the credibility of witnesses, but we are not bound by those findings. Id. Error was preserved here by the district court's adverse ruling on Ross's motion to suppress. Breuer, 577 N.W.2d at 44.
III. MERITS
Ross appeals her conviction and sentence for OWI, arguing the court erred in denying her motion to suppress. She further contends her counsel was ineffective for failing to raise issues relating to due process, equal protection, right to travel, and right to privacy guarantees. We address these issues separately.
A. Motion to Suppress
A law enforcement officer may stop a vehicle for investigatory purposes based on a reasonable suspicion, supported by specific and articulable facts, that a criminal act has occurred or is occurring. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). In order to establish reasonable suspicion for a stop existed, the State bears the burden of showing that the officer had the requisite specific and articulable cause to support a reasonable belief that criminal activity may have occurred or is occurring. Kinkead, 570 N.W.2d at 100.
The parameters of constitutional stops of motor vehicles to check for vehicle registration and driver's license were explained in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). "All that Prouse requires is an articulable and reasonable suspicion that the motorist is unlicensed or that the vehicle being stopped is unregistered [or that the vehicle or the occupant is otherwise subject to seizure for a law violation]." State v. Jackson, 315 N.W.2d 766, 767 (Iowa 1982). Nothing in Prouse or Iowa case law prohibits a stop when there are reasonable grounds to believe a vehicle is not properly registered. Id.
Our supreme court's decision in Jackson is controlling here. We find here, as in Jackson, that the stop of the vehicle driven by Ross was not random or selective. Jackson, 315 N.W.2d at 767. Ross's vehicle did not have a rear license plate displayed. When the officer observed this he reasonably believed this failure was a violation of section 321.37. When he then determined he was mistaken because there was a temporary paper plate in the rear window there arose no requirement that the officer act like he had never seen Ross. Id. Furthermore, notwithstanding the fact that a mistake concerning the license plates led to Ross's stop there was nothing illegal about the officer, once the vehicle was stopped, speaking with Ross to investigate further regarding the validity of the temporary plate. It was during this further investigation the officer noticed the smell of alcohol which led to Ross's arrest and conviction for OWI. Accordingly, the evidence that Ross was intoxicated while operating a motor vehicle should not have been suppressed and the ruling of the district court must be affirmed.
Under Code section 321.25 a vehicle may be operated on the highways of the state without plates for a forty-five day period after purchase if the requisite temporary card is attached on the rear of the vehicle.
B. Ineffective Assistance of Counsel
Ross further claims her counsel was ineffective for failing to raise challenges to the stop based on her constitutional rights to procedural due process, equal protection, free travel, and privacy. The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142-45 (Iowa 2001). When there is an alleged denial of constitutional rights, such as the right to effective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). While we often preserve ineffective assistance claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Neither party suggests that we should preserve Ross's ineffective assistance claims for a postconviction proceeding, and we find the record adequate to address her claims on direct appeal.
Ross also claims that should we find error was not preserved on her challenge to the motion to suppress her counsel was ineffective for failing to preserve such issue. The State concedes, and as set forth above we agree, error was preserved on the motion to suppress and thus we need not address this claimed ground of ineffective assistance.
Ross first claims counsel was ineffective for failing to raise a procedural due process challenge to the traffic stop, alleging it is "fundamentally unfair to stop an individual for reasons that do not exist and which are violative of statutory law." However, the officer stopped the vehicle because it did not have a rear license plate and thus there was a valid reason for the stop. Furthermore, the essence of procedural due process is "notice and the opportunity to be heard prior to depriving one of life, liberty, or property." State v. Izzolena, 609 N.W.2d 541, 552 (Iowa 2000). Accordingly, while procedural due process claims implicate issues regarding fundamental fairness at trial, including notice and opportunity to be heard, they do not govern police conduct in carrying out an otherwise routine traffic stop. Therefore, counsel did not breach an essential duty by not claiming the traffic stop violated Ross's procedural due process rights because a challenge to the seizure of her person is more appropriately brought as a claim her rights under the Fourth Amendment and article I, section 8 of the Iowa Constitution were violated, precisely what counsel here did. We find Ross's counsel did not breach an essential duty in not challenging the stop based on an alleged violation of Ross's procedural due process rights as such claim would have been without merit. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (holding that counsel is not ineffective for failing to pursue meritless issues); State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (same).
Ross next claims counsel was ineffective for failing to challenge the stop based on equal protection grounds. However, there is only a passing reference to this claim in her appeal brief and she does not argue or cite authority regarding how her right to equal protection was allegedly violated. Failure in the brief to argue or to cite authority in support of an issue may be deemed waiver of that issue. Iowa R.App.P. 6.14(1)( c). We believe Ross has waived this issue on appeal. Furthermore, in complaining of the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The defendant must state specific ways in which counsel's performance was inadequate and how competent representation probably would have changed the outcome. Id. Ross does not state how her equal protection rights were violated or on what facts or law her attorney should have based such an argument. Therefore, this claim is also too general in nature to allow us to either address it or preserve it for possible postconviction relief. Id.
Ross also claims her counsel was ineffective for failing to assert the stop violated her right to interstate travel. First, we note that Ross's brief does not argue she was engaged in interstate travel at the time of the stop, nor does any evidence in the record support a claim she was in fact engaged in interstate travel. However, presuming such a finding could be made, we find Ross's right to travel was not violated when she was stopped because the State was merely attempting to enforce a statute reasonably related to the public health, safety and welfare. Inherent in the police powers of any sovereign state is the power to regulate the use of the public highways in order to insure the safety of the citizens using them. State v. Hartog, 440 N.W.2d 852, 856 (Iowa 1989); Doyle v. Kahl, 242 Iowa 153, 158, 46 N.W.2d 52, 55 (1951). Thus, the right to interstate travel does not encompass the commission of a crime while driving a vehicle. The officer had a legitimate interest in investigating a potential traffic violation (the vehicle did not have a rear license plate) and his investigation cannot be seen as penalizing or preventing interstate travel, contrary to Ross's vague argument on appeal. Furthermore, we note that driving is a privilege and not a right. State v. Hraha, 193 N.W.2d 484, 491 (Iowa 1972); State v. Holt, 261 Iowa 1089, 1094, 156 N.W.2d 884, 887 (1968). Further, the privilege is enjoyed under the conditions imposed by the legislature and no one has to accept the conditions imposed and thereby make himself or herself subject to such regulations. Holt, 261 Iowa at 1094, 156 N.W.2d at 887. Therefore, the otherwise reasonable traffic stop could not have impinged on Ross's constitutional right to free travel. Counsel was not ineffective for not raising this meritless claim. Greene, 592 N.W.2d at 29.
Finally, Ross claims her right to privacy was violated and her counsel was ineffective for failing to raise this issue. However, this issue is indistinguishable from, and thus merely part and parcel of, her Fourth Amendment claim. It is the Fourth Amendment that protects an individual's privacy interest. State v. Naujoks, 637 N.W.2d 101, 106-07 (Iowa 2001); see also State v. Grant, 614 N.W.2d 848, 852 (Iowa Ct.App. 2000) (the capacity to invoke the protection of the Fourth Amendment depends upon whether the person who is claiming the protection has a reasonable expectation of privacy in the place invaded). "The essential purpose of the Fourth Amendment is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents in order to safeguard the privacy and security of individuals against arbitrary invasion. . . ." Naujoks, 637 N.W.2d at 107(citations and internal quotations omitted). Accordingly, counsel was not ineffective for failing to separately challenge the stop based on a violation of Ross's right to "privacy" while traveling in a vehicle, because any such claim was encompassed in the Fourth Amendment claim made by counsel in the motion to suppress.
IV. CONCLUSION
The district court did not err in denying Ross's suppression motion. Ross's claims of ineffective assistance are either without merit or too general to allow us to address or preserve.