January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
LAMONT COLEMAN, Defendant-Appellant.
from the Iowa District Court for Black Hawk County, Joseph M.
Moothart (suppression) and James D. Coil (trial), District
defendant appeals following his conviction contending the
court should have granted his motion to suppress, there is
insufficient evidence to support his conviction, and his
counsel was ineffective. AFFIRMED.
M. White of Jane White Law Office, Des Moines, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., Tabor, J., and Scott, S.J.
Coleman was convicted following a jury trial of operating
while intoxicated and possession of marijuana. He claims the
court should have granted his motion to suppress evidence
because the officer who initiated the traffic stop did not
have probable cause to justify the stop. He asserts there was
insufficient evidence to support the jury's guilty
verdict on possession of marijuana. He also claims his
counsel was ineffective in failing to subpoena a necessary
defense witness or request a continuance to secure the
presence of the witness. We affirm his conviction.
Scope and Standard of Review.
review of the district court's denial of Coleman's
motion to suppress is de novo. See State v. Ruhs,
885 N.W.2d 822, 825 (Iowa Ct. App. 2016). We consider the
entire record, and "[w]e give deference to the district
court's fact findings due to its opportunity to assess
the credibility of witnesses, but we are not bound by those
findings." Id. (citation omitted). We also
review de novo his claim that counsel was ineffective.
See State v. Schlitter, 881 N.W.2d 380, 388 (Iowa
2016). Our review of the sufficiency of the evidence is for
the correction of errors at law. Id.
Motion to Suppress.
contends the officer who initiated the stop of his vehicle
did not have probable cause to justify the stop. Thus, he
contends the court should have granted his motion to suppress
evidence admitted at trial indicates Sergeant Rob Camarata was
conducting a traffic stop of another vehicle on March 29,
2014, at about 2:45 a.m., when he observed a silver Chevrolet
Blazer traveling at a high rate of speed-he estimated at
seventy miles per hour. As it passed him, it nearly collided
with his police vehicle. He radioed to other officers a
description of the vehicle and its direction. Officer Tyler
Brownell heard that communication and observed a silver
Blazer pass his location. After confirming with Sergeant
Camarata the description of the vehicle, Officer Brownell
pursued the vehicle and was able to determine by using his
vehicle's radar system that the Blazer was going
fifty-three miles per hour in a forty-five mile-per-hour
zone. Officer Brownell radioed the speed and location
information to other officers in area. Officer Josh Wessels
heard that communication, located the vehicle, and initiated
a traffic stop. Coleman was the driver of the Blazer.
denying Coleman's motion to suppress, the district court
[T]he investigatory stop of [Coleman's] vehicle by
Officer Wessels was based on specific and articulable facts
to reasonably believe that [Coleman] was exceeding the speed
limit based on the report from [Sergeant] Camarata and
Officer Brownell's radar reading of [fifty-three] miles
per hour in a [forty-five] mile-per-hour zone. Officer
Wessels could rely on observations reported by other
officers. State v. Schubert, 346 N.W.2d 30, 32 (Iowa
appeal, Coleman maintains Officer Wessels lacked probable
cause to justify the stop of his vehicle. We conclude the
district court correctly denied Coleman's motion to
suppress. "[W]here law enforcement authorities are
cooperating in an investigation, . . . the knowledge of one
is presumed shared by all." Id. (citation
[I]n order to uphold an investigatory stop based upon a
communication between law enforcement officers it must be
shown that (1) the officer making the stop acted in objective
reliance on the communication, (2) the agency which issued
the communication possessed a reasonable suspicion justifying
a stop, and (3) the stop which was made was not significantly
more intrusive than would have been permitted the agency
issuing the communication.
State v. Bailey, 452 N.W.2d 181, 183 (Iowa 1990),
abrogated on other grounds by State v.
Heminover, 619 N.W.2d 353 (Iowa 2000). Here, Sergeant
Camarata and Officer Brownell both observed Coleman exceeding
the speed limit, which would have given both officers
probable cause to stop Coleman's vehicle. See
State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004)
("When a peace officer observes a violation of our
traffic laws, however minor, the officer has probable cause
to stop a motorist."). Both officers communicated that
information to Officer Wessels, who effectuated the stop
relying on that communication. The stop conducted by Officer
Wessels was not any more intrusive than the stop that could
have been conducted by Sergeant Camarata and Officer
Brownell. We find no Fourth Amendment violation in Officer
Wessels's stop of Coleman's vehicle and the district
court correctly denied Coleman's motion to suppress.
Sufficiency of the Evidence.
Coleman challenges the sufficiency of the evidence to support
his conviction for possession of marijuana. He claims the
marijuana found in the car was in a location where all three
occupants of the car could reach it and it was out of plain
view. He notes he did not make any suspicious moves, did not
make any admissions indicating he was aware of the drugs in
the car, and did not have any personal items with the drugs.
He finally notes the passengers were left in the car for
twenty minutes while he performed field sobriety tests,
allowing the passengers plenty of time to stash the marijuana
facts produced at trial indicate that upon contacting
Coleman, Officer Wessels noted the vehicle was filled with
smoke; there was a smell of burnt marijuana; Coleman had
watery, bloodshot eyes; and he smelled of an alcoholic
beverage. Coleman performed field sobriety tests as directed
by Officer Wessels, and Officer Brownell and Sergeant
Camarata kept watch over the other two passengers, who
remained in the car. Eventually, officers had the passengers
exit the vehicle to conduct a search in light of the strong
smell of burnt marijuana. A small wooden box containing
marijuana was located between the center console and the
driver's seat. A marijuana pipe was located on the floor
of the front passenger seat.
prove Coleman was in possession of marijuana, the jury was
instructed the State had to prove: "1. On or about the
29th day of March 2014, the defendant, Lamont Coleman,
knowingly or intentionally possessed marijuana. 2. The
defendant knew that the substance he possessed was
marijuana." The jury instructions defined possession to
include actual and constructive possession. Constructive
possession was defined as, "A person who is not in
actual possession but who has knowledge of the presence of
something and has the authority or right to maintain control
of it, either alone or together with someone else." When
the location searched is a motor vehicle, as in this case,
additional factors are considered in determining whether the
defendant had constructive possession. State v.
Carter, 696 N.W.2d 31, 39 (Iowa 2005). Those factors
(1) was the contraband in plain view, (2) was it with the
accused's personal effects, (3) was it found on the same
side of the car seat as the accused or immediately next to
him, (4) was the accused the owner of the vehicle, and (5)
was there suspicious activity by the accused.
case, we conclude there was sufficient evidence to prove
Coleman possessed marijuana. While the wooden box was not in
plain view or located with Coleman's personal effects, it
was found on his side of the vehicle, immediately next to his
seat, wedged down between the driver's seat and the
center console. He was the owner of the vehicle, and the
officers on scene kept watch over the passengers while
Coleman was performing the field sobriety tests. The officers
testified that they would have been able to see if either the
front seat or backseat passenger attempted to place the
wooden box between the driver's seat and the center
console. Upon our review of all the facts and circumstances,
viewed in the light most favorable to the verdict, we
conclude there was "a reasonable inference that
[Coleman] knew of the [controlled substance's] presence
and had control and dominion over [it]." See
id. at 39-40 (second and third alterations in original)
Ineffective Assistance of Counsel.
Coleman asserts his counsel provided ineffective assistance
during trial when counsel failed to subpoena the passenger in
the backseat of the car. Coleman notes his counsel attempted
to solicit testimony from Officer Brownell as to what the
backseat passenger said at the scene. The State objected to
the testimony based on hearsay, and because defense counsel
had not established the backseat passenger was unavailable,
pursuant to Iowa Rule of Evidence 5.804(a), the court did not
admit the testimony from Officer Brownell. On appeal, Coleman
claims the backseat passenger's statements could have
provided evidence that Coleman was not the individual in
possession of the marijuana. He asserts if the backseat
passenger was available by subpoena, and if his testimony
would have created reasonable doubt as to the possession
charge, then Coleman was prejudiced by counsel's failure
to issue the subpoena or request a continuance of the trial
so the backseat passenger could be located.
prove his claim of ineffective assistance of counsel, Coleman
must establish by a preponderance of the evidence that (1)
counsel failed to perform an essential duty and (2) he
suffered prejudice as a result. State v. Morgan, 877
N.W.2d 133, 136 (Iowa Ct. App. 2016). "We generally
preserve such claims for postconviction-relief proceedings
where a proper record can be developed." Id.
claim must be preserved for possible postconviction relief
because it is unclear based on this record what, if any,
testimony this backseat passenger could have offered as to
the marijuana at issue or whether issuing a subpoena would
have made him "unavailable" under rule 5.804, such
that Officer Brownell's testimony could have come into
evidence. In addition, defense counsel may have had strategic
reasons for not subpoenaing this witness. See State v.
Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (noting
strategic decisions are virtually unchallengeable unless
counsel's trial strategies are based on an investigation
that is "less than complete"); State v.
Kirchner, 600 N.W.2d 330, 335 (Iowa Ct. App. 1999)
("Even a lawyer is entitled to his day in court,
especially when his professional reputation is
impugned." (citation omitted)). Because the record is
inadequate on direct appeal to resolve this claim, it is
preserved for possible postconviction-relief proceedings.
[*]Senior judge assigned by order
pursuant to Iowa Code section 602.9206 (2017).
 See State v. Brooks, 760
N.W.2d 197, 203-04 (Iowa 2009) ("Under Iowa law, an
appellate court reviewing the validity of a search may
consider not only evidence admitted at the suppression
hearing, but also evidence admitted at trial.").