Opinion
No. 4-208 / 03-0998.
June 9, 2004.
Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden and Mark D. Cleve, Judges.
Ronald Nichols appeals his conviction, following a stipulated trial, for possession of methamphetamine with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Gary Allison, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Ronald Nichols appeals his conviction, following a trial on stipulated evidence, for possession of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2001). We affirm.
I. Background Facts and Proceedings.
On October 19, 2002, Ronald Nichols and friends John Brinson and Terri Willits were trespassing on property near the Cedar River in order to fish. While driving past the area, which he knew had been the subject of previous trespassing complaints and which was posted with a "no trespassing" sign, Deputy Sheriff Terry Harrison observed three small campfires. He then encountered Nichols near a car parked by the side of the road. Nichols informed the deputy that he and the two friends were fishing, that he did not have a fishing license, and that he did not know the area was private property. The deputy told Nichols to go back to the fishing spot and return with his friends. Although Harrison told Nichols to return with both fishing partners, he only returned with Brinson. Upon his approach, Deputy Harrison noticed Brinson had a fishing knife in his shirt's front pocket. He removed the knife and placed it in the squad car. Responding to the deputy's questions, Brinson denied having an identification or any guns in the car. Deputy Harrison cautioned Brinson and Nichols to not move around and ordered them to "hang tight" in order to control their movement. Deputy Harrison then sent Nichols back a second time to retrieve Willits. This time Nichols complied.
During this time frame, Department of Natural Resources Officer Tom Campbell arrived on the scene to assist Deputy Harrison. Campbell subsequently escorted Brinson and Willits back to the river to retrieve their fishing equipment. Deputy Harrison then received information from dispatch that Brinson had a conviction for possession of methamphetamine and Nichols had a conviction for burglary.
After receiving this information, Deputy Harrison asked the trio whether they had any weapons or needles. Brinson informed Harrison that he did not. Harrison then informed Nichols, Brinson, and Willits he was going to pat them down. In response, Nichols handed him a knife which had been on a necklace around his neck. Deputy Harrison described the knife as a "concealed combat" type of knife. Upon patting down Brinson, he discovered a marijuana pipe. Upon further patting down Nichols, Deputy Harrison discovered a lump in the front pocket of his jeans. Believing the lump could be drugs, the deputy removed it and discovered two rocks of methamphetamine and a small bag of marijuana.
After concluding the pat down and searching the vehicle and fishing equipment, Deputy Harrison wrote three citations to Nichols and informed him he would have to come to the jail to be fingerprinted. He then handcuffed Nichols and placed him in the back seat of the squad car. Upon reaching the jail, Deputy Harrison noticed three plastic bags on the floor mat in front of where Nichols had been sitting. Nichols expressed to the deputy, "[t]hat's not mine." It was later learned the bags contained methamphetamine.
Based on this series of events, the State charged Nichols with possession with intent to deliver more than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7), and failure to affix a drug tax stamp, in violation of sections 453B.1, 453B.7, and 453B.12. Nichols subsequently filed a motion to suppress the evidence discovered by Deputy Harrison, claiming it was the result of an illegal search. Following a hearing, the district court denied the motion. It was subsequently discovered, though, that a videotape of the arrest, which had previously been denied by the State, in fact existed. Nonetheless, Nichols, on the advice of counsel, proceeded to waive a jury trial, and agreed to a trial on the minutes of testimony, with the State's agreement to drop the tax stamp count. Based on the stipulated evidence, the court found Nichols guilty as charged.
After subsequently being appointed new counsel, Nichols filed a motion in arrest of judgment on the basis of a defect in the proceedings. The parties then agreed the district court could review the videotape and determine if it would have affected its prior ruling on the motion to suppress. After reviewing it, the court again denied the motion to suppress, and Nichols withdrew his motion in arrest of judgment. The court sentenced him to an indeterminate term of twenty-five years. Nichols now appeals, contending trial counsel provided ineffective assistance in its handling of the motion to suppress.
II. Scope of Review.
Claims of ineffective assistance of counsel are derived from the Sixth Amendment to the United States Constitution and are afforded a de novo review. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999).
III. Ineffective Assistance of Counsel Principles.
Ineffective assistance of counsel claims are generally preserved for postconviction proceedings unless, as here, a satisfactory record exists upon which to base a conclusion. Id. To sustain his petition, defendant must prove, by a preponderance of the evidence, that trial counsel failed in an essential duty and prejudice resulted therefrom. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). There is a strong presumption that counsel's performance meets professional standards. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The resultant prejudice must give rise to a reasonable probability the outcome of the proceeding would have been different had counsel not erred. Pace, 602 N.W.2d at 774. We need not consider whether counsel did in fact abrogate a duty if no prejudice is evident. Id. IV. Motion to Suppress.
Nichols alleges counsel rendered ineffective assistance in failing to timely file the motion to suppress. He notes that trial counsel filed the motion to suppress more than forty days after the date of arraignment and was thus late under Iowa Rule of Evidence 2.11(4), which provides that a motion to suppress must be filed no more than forty days after arraignment.
However, we note that despite the fact the motion to suppress was not made within the allowable time frame, the district court did fully rule on the motion to suppress, and rejected it without comment as to its tardiness. In fact, the court made two different rulings on the motion to suppress. The second time it addressed the issue was after the discovery of the arrest's videotape and upon the agreement and stipulation of the State. Again, the court fully addressed the issues as presented by Nichols and denied his request to reconsider the court's previous ruling. As such, in that the motion to suppress was fully argued and rejected on its merits, we are hard-pressed to find Nichols was prejudiced in any fashion by the late filing.
Regardless, we conclude that the district court correctly denied the motion to suppress. Nichols first asserts `there was no valid exception to the warrant requirement which would have applied" in his case. In this regard, he argues the search was not a valid "search incident to arrest" and that no probable cause existed to sustain the search. Furthermore, he maintains all evidence found pursuant to the illegal search should have been suppressed.
However, the State disagrees that this court need address whether the search was a valid search incident to arrest or whether probable cause existed to support the search. Rather, it maintains the proper analysis focuses on the objective test of whether a reasonable officer under the circumstances had reasonable and articulable suspicion to believe Nichols was armed and dangerous for purposes of a Terry pat down. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We agree. The district court appears to have concluded the search was a valid Terry pat down. In this regard, it found the facts "gave Harrison sufficient concern for his safety to conduct a pat-down search" and it held "[t]he pat down search by Deputy Harrison of the defendant was justified." For reasons which will follow, we conclude Deputy Harrison's action constituted a valid investigatory pat down.
Our analysis of this question is governed by the principles set forth in Terry v. Ohio and its progeny. Under Terry, an officer has authority to conduct a reasonable search for weapons for the officer's own protection, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual. Id. at 27, 88 S.Ct. at 1883, 20 L. Ed.2d at 909; see also Michigan v. Long, 463 U.S. 1032, 1047-50, 103 S.Ct. 3469, 3480-81, 77 L.Ed.2d 1201, 1218-19 (1983).
The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L. Ed.2d at 909 (citations omitted). In justifying this particular intrusion upon Nichols' constitutionally protected interests, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Id. at 21, 88 S.Ct. at 1880, 20 L. Ed.2d at 906.
In determining whether the particular search or seizure is reasonable, the court judges the facts against an objective standard. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Whether reasonable suspicion exists for an investigatory pat down must be determined in light of the totality of the circumstances confronting a police officer, including all information available to the officer at the time the decision to search is made. Id.
We are first compelled to credit Nichols' observation that Deputy Harrison's testimony at trial differed to some degree from the evidence actually shown by the videotape. For example, Deputy Harrison testified that he discovered both a marijuana pipe and methamphetamine paraphernalia on Brinson's person, while in actuality he only found the pipe. Moreover, while perhaps unclear from Deputy Harrison's testimony, his pat downs occurred well after his first contact with the trio and only after he learned from dispatch that Brinson had a drug conviction and Nichols a burglary conviction. However, like the district court, we do not believe these factual discrepancies alter our ultimate conclusion that the motion to suppress was correctly denied.
First, this encounter took place in a remote area near the Cedar River. Prior to his pat down search of both Nichols and Brinson, Deputy Harrison found and took a fishing knife from Brinson's front pocket and was given a "concealed combat knife" by Nichols. Moreover, he had just learned Nichols had a burglary conviction and Brinson had a conviction for possession of methamphetamine. In addition, as the State notes, Deputy Harrison and Officer Campbell were outnumbered. We conclude that based on these facts alone, a reasonably prudent officer in such circumstances would be warranted in the belief that Nichols was armed and dangerous.
Nichols finds significance in the fact that Deputy Harrison only patted him down after learning of his and Brinson's criminal histories. He argues:
Mr. Nichols was not searched because Deputy Harrison feared for his safety. It is clear he did not have such fear. Furthermore, he was not searched to discover evidence in support of the trespassing and fishing citations when he had already obtained all possible evidence of those violations. Nichols was searched because he had a burglary conviction and his friend had a drug conviction. Harrison's own words on the videotape make clear why they were searched. Brinson "is your drug user" and Nichols "is your felon."
We believe Nichols' focus on the subjective reasons harbored by Deputy Harrison misconstrues the central question. The constitutional reasonableness of a search is determined by an objective standard. See State v. Jones, 586 N.W.2d 379, 382 (Iowa 1998). Consequently, the legality of a search and seizure under circumstances such as those present here "does notdepend on the actual motivation of the individual officers involved." State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996). The State is not limited to the reasons stated by the investigating officer in justifying the challenged search or seizure. See Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229, 242 (1983).
We place a different significance on the fact Harrison only searched Nichols and his cohorts upon being informed of their criminal pasts. The fact that Nichols had a burglary conviction and Brinson a drug conviction merely provided one more piece of evidence and added to the weight of objective facts which provided Deputy Harrison reasonable suspicion that Nichols was potentially armed. When knowledge of an individual's criminal background is coupled with the additional factors noted above — the remote location, the unlawful trespassing behavior, the fact two knives had already been taken from the suspects, and the fact the officers were outnumbered — more than adequate justification for the pat down search was supplied. See State v. Peck, 329 N.W.2d 680, 685-86 (Iowa Ct.App. 1992) (stating that defendant's conduct of immediately leaving area where stolen car was found, combined with officer's knowledge of fact he had been previously convicted of car theft, was sufficient to justify an investigatory stop and subsequent pat down search for weapons).
Accordingly, we conclude trial counsel breached no duty and thus did not provide ineffective assistance in failing to file a timely motion to suppress in that such a timely motion would not have been granted. Nor was counsel otherwise ineffective in his handling of the motion to suppress arguments. We therefore affirm the conviction.