Appeal from the Iowa District Court for Polk County, D.J. Stovall (Motion to Suppress) and Robert B. Hanson (Trial), Judges.
Flavian Hill appeals from his conviction after a stipulated bench trial for possession of a controlled substance with intent to deliver, failure to possess a tax stamp, and two counts of assault while participating in a felony.
Nathaniel A. Tagtow of Tagtow & Lockwood, P.L.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Michael L. Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Flavian Hill appeals from his conviction for possession of a controlled substance with intent to deliver, failure to possess a tax stamp, and two counts of assault while participating in a felony. He argues the district court improperly denied his motion to suppress. In a pro se brief, he argues the State committed prosecutorial misconduct and his counsel was ineffective in several ways. We affirm, finding the district court properly denied the motion to suppress, the prosecutorial misconduct claim is not preserved for our review, and the record is insufficient for our review of Hill's ineffective-assistance-of-counsel claims.
I. Facts and proceedings.
On August 19, 2010, Des Moines Police Officer Scarlett received a call from an informant with concerns about activity occurring in a vehicle in a Radio Shack parking lot. The informant reported two African-American males in the vehicle and that the vehicle had "a lot of short-term traffic, people coming up and approaching the Avalanche for a short period and leaving." The informant said this was not the first time he had seen the vehicle and that activity. Scarlett was not on duty that day, so he passed this information to another officer—Officer Mock, who was on duty.
Mock and another officer, Officer Santizo, arrived at the parking lot and parked directly behind the vehicle matching the informant's description. Mock approached the driver's side of the vehicle, Santizo approached the passenger side. Hill was seated in the passenger side of the vehicle; he was the sole occupant. Santizo requested Hill's identification and returned to the squad car to run a check of the identification through the LENCIR system. Mock stayed on the driver's side of the vehicle and observed Hill. He observed Hill moving quickly in the car and sweating profusely. Hill attempted to initiate conversation with Mock. These observations indicated to Mock that Hill was nervous.
Mock requested Hill step out of the vehicle because, based on his behavior, Mock believed Hill could be armed. Mock told Hill to face the car and place both of his hands above his head with his fingers interlaced. Mock held Hill's hands; Mock felt Hill start to pull his hands apart and tense up before he could start the pat-down search. Mock responded by attempting to handcuff Hill, when Hill pushed off the vehicle and turned to face Mock. Hill then pushed Mock and began to run away. The second officer returned to Hill's vehicle and attempted to gain control of Hill. Hill pushed the second officer and fled. Both officers pursued Hill. Eventually they caught up with him and used a taser to subdue Hill and take him into custody.
Police searched Hill when he arrived at the station and found a bag containing two grams of heroin separated into several smaller baggies and a stack of money in Hill's pockets. Hill was charged by trial information with four counts: possession of a controlled substance with intent to deliver, failure to possess a tax stamp, and two counts of assault while participating in a felony.
Hill filed a motion to suppress the heroin and any statements, arguing they were fruit of an illegal search. Hill argued the officers lacked reasonable suspicion or probable cause for the stop and warrantless search of Hill, the stop and warrantless search was based on an uncorroborated tip which was insufficient to constitute reasonable suspicion, and the arrest was made without probable cause.
The court held a hearing on the motion on December 17, 2010. Officer Scarlett testified regarding the information provided by the informant prior to the officers approaching the vehicle. He testified the informant was a prosecuting attorney with the drug and gang unit in Polk County who was working out across the parking lot from the vehicle, so he had an extended time to observe the situation. Scarlett had known the prosecutor for over four years, had worked on cases and attended trainings with the attorney, and knew him to be knowledgeable in his field—especially regarding search and arrest warrants. Officer Mock also testified, stating he initiated the stop on the evidence ...