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State v. Klinger

Court of Appeals of Iowa

June 21, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
BOBBY RAY KLINGER SR., Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.

         Bobby Ray Klinger Sr. appeals from his conviction and sentence for possession of a controlled substance, third or subsequent offense. AFFIRMED.

          Colista K. Anglese of Hammer Law Firm, P.L.C., Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         Bobby Ray Klinger Sr. appeals from his conviction and sentence for possession of a controlled substance, third or subsequent offense, a class "D" felony, in violation of Iowa Code section 124.401(5) (2015). Klinger asserts the trial court erred in denying his motion to suppress. Klinger also contends trial counsel rendered ineffective assistance. On our de novo review, we affirm the district court's denial of Klinger's motion to suppress. We also conclude the record is inadequate to address Klinger's ineffective-assistance-of-counsel claims, and we preserve such claims for possible postconviction-relief proceedings.

         I. Background Facts & Proceedings.

         On November 5, 2015, at approximately 9:30 p.m., Officer Brian Kelley initiated a traffic stop of Klinger's vehicle for failure to display headlamps, in violation of Iowa Code section 321.384. Officer Kelley testified the vehicle's parking lights were on, but Klinger had not turned on the headlights. The video from Officer Kelley's squad car dash camera affirmatively shows the headlights on Klinger's vehicle were not as bright as the vehicles traveling nearby and one of the headlights was not working.

         Klinger pulled the vehicle to the side of the road, and Officer Kelley and Officer Andrew Becker approached the vehicle. Klinger was cooperative and provided the requested license and registration information. However, Officer Kelley discovered the license plate affixed to Klinger's vehicle belonged to a different vehicle owned by someone other than Klinger. Klinger explained the improper registration was due to the fact he purchased the vehicle approximately one month prior.

         Officer Kelley ordered Klinger to exit the vehicle, performed a pat-down of Klinger's person, and asked Klinger to sit on the curb near the rear of Klinger's vehicle. Officer Kelley returned to the squad car and also discovered Klinger was on active parole for manufacturing methamphetamine. The dash camera video then shows Officer Kelley walked back to Klinger and spoke with Klinger before performing a second, more thorough search of Klinger's person and a search of his vehicle.

         Officer Kelley stated he had

seen it before where drug dealers, users, will exchange vehicles for narcotics, money, whatever. It was clear something was going on. And with that background, that is why I asked him if he had used any recently. And given the conditions of his parole, I was making sure he was in compliance.

         Officer Kelley testified that during the conversation prior to the second search Klinger admitted to using methamphetamine that day and consented to the search of his vehicle. Klinger denied providing consent. Unfortunately, Officer Kelley's body microphone was muted at the time Klinger's consent to search the vehicle was discussed. The body microphone was initially working but was muted between the time Officer Kelley returned to the squad car after Klinger was asked to sit on the curb and when Officer Kelley again approached Klinger. Officer Kelley testified it was possible he bumped and accidentally muted ...


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