from the Iowa District Court for Polk County, Lawrence P.
defendant appeals his convictions for possession with intent
to deliver crack cocaine, interference with official acts
causing injury, and possession of marijuana.
A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines,
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Leon Kemp appeals his convictions after a trial to the bench
for possession with intent to deliver crack cocaine,
interference with official acts causing injury,
possession of marijuana. Specifically, he argues the evidence
used by the State to secure his convictions was obtained
without reasonable suspicion, in violation of article 1,
section 8 of the Iowa Constitution and the Fourth Amendment
of the U.S. Constitution. He also argues his counsel was
ineffective. We affirm.
Background Facts and Proceedings.
February 27, 2015, Kemp was charged by trial information with
the following: one count of possession of a controlled
substance with intent to deliver, in violation of Iowa Code
section 124.401(1)(c)(3) (2015); one count of failure to
possess a tax stamp, in violation of sections 453B.3 and
453B.12; one count of interference with official acts causing
injury, in violation of section 719.1; and, one count of
possession of a controlled substance, in violation of section
March 15, 2015, Kemp waived formal arraignment and pled not
guilty to the above charges. On May 7, 2015, Kemp filed a
motion to suppress alleging the evidence supporting the three
drug counts was discovered in an illegal pat-down search.
Both parties filed written briefs, and a suppression hearing
was held on July 7, 2015.
hearing, Officers Morgan and Becker testified about their
encounter with Kemp. On or about January 23, 2015, Becker
received an anonymous tip about potential drug-trafficking
activity involving a specifically described car. The tipster
allegedly identified an orange Dodge Avenger, with a specific
license plate number, driven by a man matching Kemp's
physical description in his forties or fifties, who was
engaged in activities consistent with narcotic sales. The
tipster also disclosed drugs were seen in the vehicle. At
1:30 a.m. on January 24, Becker noticed an orange Dodge
Avenger parked in an empty parking lot at a closed business
under a "No Parking" sign. The car was located
adjacent to a bar known by the police for gun and drug
activity. The driver's seat was empty, and a woman was
sitting alone in the passenger seat. Upon further
investigation, the police verified the car's license
plate number matched the information from the tipster. The
district court made the following additional factual findings
regarding the officers' testimony:
At the time the officers approached the vehicle the lone
occupant was Rhonda Claiborne, the owner of the vehicle.
Claiborne was sitting in the front passenger seat of the car
at that time. Morgan, while speaking to Claiborne, noticed
several parts of plastic baggies sticking out of the center
console of the car, which he recognized as baggies used in
the drug industry. As this conversation was occurring,
defendant, Mark Kemp, approached the vehicle by Becker and
inquired why the officers were there. Kemp indicated to
Becker that he came to the bar in the orange Dodge.
at that time requested identification from Kemp. Kemp was
unable to provide any identification. Becker also testified
that Kemp fit the description of the individual given to him
by the concerned citizen. Becker then conducted a pat-down
search of Kemp out of a concern that he posed a threat to the
officers' safety. During the pat-down search, Becker
noticed that Kemp was making furtive movements consistent
with an individual trying to conceal items. Becker also felt
a substance in Kemp's right pocket consistent with small
bundles of crack cocaine. Becker testified that he did not
reach into the pocket at that time. He summoned Morgan to
help detain Kemp, who then attempted to flee by jumping over
the rear of the car. The officers subdued him and ultimately
placed Kemp under arrest. Crack cocaine and marijuana were
discovered in Kemp's right, front pocket after he was
placed under arrest.
September 13, 2015 order, the district court denied
Kemp's motion to suppress on both the procedural ground
and on the merits. First, the court denied Kemp's motion
"for his failure to file the motion within 40 days of
his arraignment in violation of Iowa Rule of Criminal
Procedure 2.11(4) and he failed to present any grounds that
would constitute good cause to excuse the late filing."
Second, the court denied the motion on the merits, finding
the search was constitutional under both the federal and
state constitutions. A bench trial was held on the minutes of
testimony, and the court found Kemp ...