Opinion
No. 3-745 / 02-2063
Filed October 15, 2003
Appeal from the Iowa District Court forScottCounty, David E. Schoenthaler, Judge.
Isaac Andrew Baldon appeals from his convictions for possession of marijuana with intent to deliver, failure to affix a drug tax stamp, and being a felon in possession of a firearm. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, William Davis, County Attorney, and Robert Weinberg, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Isaac Andrew Baldon appeals from his convictions for possession of marijuana with intent to deliver, failure to affix a drug tax stamp, and being a felon in possession of a firearm. He contends his trial counsel was ineffective because he failed to file a timely motion to suppress the admission of evidence recovered after an alleged illegal stop of his motor vehicle. He also claims the district court erred in denying his motion to suppress. We affirm.
I. Background Facts Proceedings
On July 3, 2002, Davenport police officer Jason Willey pulled over Baldon's car to investigate what he believed was a violation of the city's noise ordinance. After the traffic stop, Willey determined that Baldon's driver's license was suspended. Once Willey became aware of this information he conducted a pat-down search of Baldon for weapons. While performing the search Willey felt what he believed was a bag of marijuana in Baldon's pocket. He asked Baldon what the object he was grabbing was and Baldon admitted the object was a bag of marijuana. Willey then seized the marijuana, arrested Baldon, and placed him in the back of his squad car. Following Baldon's arrest, Willey searched Baldon's car. During his search he discovered more marijuana, a digital scale, a box of plastic bags, a loaded .38 caliber handgun, and ammunition.
On August 15, 2002, the State charged Baldon with: (1) possession of marijuana with intent to deliver, (2) failure to affix a drug tax stamp, and (3) being a felon in possession of a firearm. Baldon chose to waive his right to a trial by jury and his case was scheduled for a bench trial. On the morning of trial, Baldon's attorney made an oral motion to suppress the evidence seized by Officer Willey after he stopped Baldon's car. Although the motion was untimely, the district court agreed to hear and decide the motion. Following hearing the district court denied Baldon's oral motion to suppress. The court ruled the traffic stop of the defendant's vehicle was based on probable cause to believe that Baldon was violating a noise ordinance. Following a trial to the court, Baldon was found guilty on all counts. This appeal followed.
II. Ineffective Assistance of Counsel
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). Usually we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). However, we will resolve such issues when an adequate basis for a decision appears in the record. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). To establish his claim of ineffective assistance of counsel, Baldon must show that (1) his counsel's performance fell below an objective standard of reasonableness, and (2) this deficient performance prejudiced Baldon. See Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Baldon can only establish prejudice if he shows "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).
Baldon claims his counsel was ineffective because he did not file a timely motion to suppress the evidence seized from him on July 3, 2002. He notes a motion was not filed within forty days after arraignment as required by Iowa Rule of Criminal Procedure 2.11(4).
The record reveals the district court held a hearing on the merits of Baldon's oral motion to suppress and then ruled on the issues presented by the motion despite the fact that it was made more than forty days after arraignment. Because we elect to review the district court's ruling on the merits, Baldon has no basis for positing an ineffective assistance of counsel claim premised on the tardy motion to suppress. State v. Bowers, 661 N.W.2d 536, 540 (Iowa 2003).
III. Motion to Suppress
Baldon next argues that his vehicle was illegally stopped and therefore none of the evidence obtained from the traffic stop should have been admitted into evidence. The constitutionality of a search or seizure is reviewed de novo. State v. Seager, 571 N.W.2d 204, 207 (Iowa 1997).
Officer Willey was parked at an intersection in Davenport on July 3, 2002, when he heard loud music coming from south of where he was located. When he first heard the music, Willey could not see the vehicle that was the source of the music. The music got louder as a car approached. Willey then observed the defendant's car stop at the intersection where he was parked. Willey determined Baldon's car was the source of the loud music and pulled over the defendant's vehicle to investigate a possible violation of Davenport's noise ordinance. We agree with the district court's conclusion that these facts establish reasonable suspicion to believe the defendant was committing an unlawful act and justified the stop of Baldon's vehicle. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968). We also find that Officer Willey had probable cause to search and arrest Baldon due to the officer's discovery that Baldon was driving while his license was suspended. Additionally, once Willey arrested Baldon he clearly had authority to search his vehicle. The court did not err in denying Baldon's motion to suppress and admitting the evidence from the traffic stop.