Opinion
No. 114 / 00-0940
Filed September 6, 2001
Appeal from the Iowa District Court for Tama County, L. Vern Robinson, Judge.
Appeal challenging the district court's ruling on a suppression motion filed seventy-eight days after arraignment.
AFFIRMED.
Michael L. Mollman of Mollman Law Office, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Brent D. Heeren, County Attorney, and Richard Vander Mey, Assistant County Attorney, for appellee.
The question the present appeal asks us to decide is if the "community caretaker" power of police allows it to make investigatory stops when there is no reasonable suspicion or probable cause of any wrongdoing. Because we determine that this issue was waived, we will not pass judgment upon it. Accordingly, the judgment of the district court is affirmed.
This case suffers from a terminal procedural illness. In this regard, only a few facts are important. Jamie Johnson was arraigned for OWI, third offense on August 12, 1999. On October 28, 1999, nearly eighty days after arraignment, Johnson filed a motion to suppress the evidence against him. The State resisted the motion as untimely, but the district court never addressed this issue. Rather, it set a suppression hearing. The issue raised in Johnson's suppression motion is the same issue we are being asked to decide on this appeal.
Generally, a motion to suppress must be made within forty days of arraignment. Iowa R. Crim. P. 10(2)(c), (4). "Failure of the defendant to timely raise defenses or objections . . . which must be made prior to trial under this rule shall constitute waiver thereof . . . ." Iowa R. Crim. P. 10(3) (emphasis added). The only exception to this rule is if good cause can be shown by the defendant for the motion's lateness and such good cause is accepted by the district court. Id.
At the hearing, no mention was made as to the untimeliness of the motion. Further, no good cause determination for allowing the late filing of the motion was made by the district court. In fact, the transcript is devoid of any discussion of this issue and at no time did the defendant argue good cause existed.
This history is important because we have very clear jurisprudence in Iowa that an untimely motion to suppress, unless good cause for the lateness is shown, waives such constitutional arguments being raised on appeal. See State v. Ball, 600 N.W.2d 602, 604-05 (Iowa 1999) ("[F]ailure to file the motion in time constituted a waiver of [defendant's] constitutional objection unless there was good cause shown to grant relief from such waiver."); State v. McCowen, 297 N.W.2d 226, 227-28 (Iowa 1980) ("The late filing was unexcused, and the motion was therefore waived."). This is true even if a ruling was nonetheless secured or the State failed to object to the motion as untimely. See, e.g., McCowen, 297 N.W.2d at 227 ("Even though the State did not resist the motion in the trial court as untimely, we will uphold a ruling of the court on the admissibility of evidence on any ground appearing in the record, whether urged below or not.").
The foremost case on this issue is State v. Terry, which states:
The arraignment order provided that pretrial motions should be filed in accordance with the requirements of Iowa Rule of Criminal Procedure 10(4). According to Rule 10(4), such motions must be filed "no later than forty days after arraignment." Motions to suppress are subject to this time limitation. Failure to file a pretrial motion within the time limitation constitutes a waiver of the grounds forming the basis for the motion, unless the court "for good cause shown" excuses the untimely filing.
Terry filed the suppression motion fifty-seven days after his arraignment. The motion was late and Terry made no effort to show good cause to excuse the untimely filing. For these reasons the motion was waived. Even though the State did not resist the motion in the district court as untimely and unexcused for good cause, we will uphold the ruling on the admissibility of the evidence on this or any other ground appearing in the record, whether urged or not.State v. Terry, 569 N.W.2d 364, 368 (Iowa 1997) (emphasis added) (citations omitted). We are persuaded by this language that the result we reach today is controlled by our holding in Terry. Moreover, the present case is even stronger in that the State did file a resistance to Johnson's motion to suppress on the ground that it was untimely. Likewise, it is of no consequence that the State did not restate its objection to the timeliness of the motion at the hearing.
It is true that good cause may be shown where a defendant is unrepresented at the time of arraignment and has not formally waived his right to counsel. See State v. Eldridge, 590 N.W.2d 734, 736-37 (Iowa Ct.App. 1999). Such is not the case here. Johnson's attorney filed a notice of appearance on July 27, 1999, two weeks prior to the arraignment. The same attorney represented Johnson throughout. This procedural error by counsel eliminates our ability to review the merits of the suppression motion on appeal.
In response to the State's waiver argument, Johnson claims that a timely motion to reconsider the court's suppression motion ruling (one that was never ruled upon) and his notice of appeal, preserved error on this issue for our court. We fail to see how a subsequent motion can preserve error on an issue that was waived. Accordingly, because there was no showing that the good cause exception in Rule 10(3) applied nor any affirmative ruling that good cause was shown, we hold that the argument raised in the untimely suppression motion was waived. As such, the decision of the district court is affirmed.
AFFIRMED.
Snell, S.J. participates in lieu of Streit, J., who takes no part.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).
This opinion shall not be published.