Opinion
No. 4-098 / 03-0247
Filed February 27, 2004
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
Defendant appeals from her judgment and sentence on possession of a controlled substance as a prior offender. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Mark Taylor, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Carla Rae Chiles appeals from her judgment and sentence for possession of a controlled substance as a prior offender, in violation of Iowa Code section 124.401(5) (2001). She contends the district court erred in denying her motion to suppress. She also contends her counsel rendered ineffective assistance in presenting the suppression issue. We review her claims de novo. See State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000); State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001).
On the afternoon of August 27, 2002, Officer Jeff Edwards observed Chiles sitting on a sidewalk in the middle of the 500 block of Forest Avenue. Officer Edwards recognized Chiles from having arrested her on numerous occasions. Officer Edwards understood Chiles to be the subject of numerous complaints from neighbors about prostitution in the area. Officer Edwards was in uniform and driving a marked police vehicle when he decided to pull over to the side of the street to observe Chiles. He believed a warrant for her arrest had been issued a few days earlier, and he called to check on her arrest status.
Officer Edwards observed as Chiles stood up and began walking back and forth on the sidewalk between Fifth Street and Sixth Street. The officer believed this behavior was typical for a prostitute. After Chiles noticed the officer's presence, she approached a man cutting weeds along the fence of an apartment building and spoke with him briefly. Chiles and the man then walked through the front gate of the apartment building and toward the front door. No trespassing signs were posted on the chain link fence surrounding the property.
Although Officer Edwards had not received an answer about the arrest warrant, he approached Chiles and asked her to come with him to the police car to talk with him. When he asked Chiles if she lived in the building, she responded "no." Officer Edwards then asked the man if he knew Chiles and he stated "no," turned around, and walked inside the building. Chiles told the officer she was visiting a friend, and indicated the friend was the man who had gone inside the building. At that point, Officer Edwards instructed Chiles to come with him to his vehicle. Officer Edwards spoke with Chiles about the no trespassing signs posted on the property and about the complaints regarding her activity in the area.
Based on previous experience with Chiles, Officer Edwards asked her "if she wanted to hand [him] her crack pipe." Chiles denied possessing a crack pipe and told the officer he could search her. Officer Edwards called for a female officer to assist him with the search. When the female officer arrived, Chiles said "wait," and indicated the crack pipe was in a cigarette box in her purse. Officer Edwards retrieved the pipe from Chiles's purse and placed her under arrest. The search of Chiles's person found nothing. Chiles then consented to a search of her purse where a rock of crack cocaine was located in a sewing kit.
On October 8, 2002, Chiles was charged with possession of a controlled substance, third offense. On November 20, 2002, Chiles filed a timely motion to suppress. Following a December 6, 2002 hearing, the district court denied the motion.
Chiles contends the district court erred in overruling her motion to suppress because Officer Edwards's stop was an unconstitutional seizure. Searches and seizures conducted without a warrant are per se unreasonable unless they fall within one of the exceptions to the Fourth Amendment's warrant requirement. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. Id. One such exception is an investigatory stop in which the officer has a reasonable suspicion that criminal activity is afoot. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). An investigatory stop is constitutionally permissible only if the officer who has made the stop can point to "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (quoting Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). Reasonable suspicion is an objective determination. Terry, 392 U.S. at 21-22, 99 S.Ct. at 1880, 20 L. Ed.2d at 906. The reasonableness of the stop turns on whether the facts available to the officer at the time of the stop would cause a reasonable person to take action. Id.
We conclude Officer Edwards had reasonable suspicion that criminal activity was afoot. Officer Edwards had previously arrested Chiles and knew of complaints about her prostitution in the area. Chiles was pacing back and forth over the length of one block, activity consistent with prostitution. Chiles then entered private property with a man whom she did not know. The officer could reasonably believe Chiles was committing prostitution or trespassing on the property. Based on his reasonable suspicion, Officer Edwards' stop of Chiles was a valid investigatory stop. Both searches of Chiles purse were consensual, and therefore did not violate the Fourth Amendment. State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998) (stating searches based on consent fall within a recognized exception to the warrant requirement). Accordingly, the court did not err in overruling Chiles's motion to suppress.
Chiles also contends her counsel rendered ineffective assistance in failing to specifically argue both the Iowa Constitution and United States Constitutions were violated. She also contends counsel failed to argue the suppression ruling should have been reconsidered and failed to file a motion in arrest of judgment. To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
We find counsel did not fail to perform an essential duty in arguing both the Iowa Constitution and United States Constitution were violated. The record demonstrates counsel adequately addressed the issue to the court. We also conclude counsel had no duty to urge the court to reconsider its ruling on the motion to suppress and to file a motion in arrest of judgment. The issue was adequately preserved for appeal.