DONNIE R. ROSE, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Lee County (South), John M.
Rose appeals the denial of his application for postconviction
relief contending trial counsel and appellate counsel
rendered ineffective assistance.
William R. Monroe of the Law Office of William Monroe,
Burlington, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
by Danilson, C.J., and Potterfield and Bower, JJ.
DANILSON, Chief Judge.
Rose appeals the denial of his application for postconviction
relief (PCR) contending trial counsel and appellate counsel
rendered ineffective assistance. Rose maintains officers
unconstitutionally prolonged the traffic stop and searched
his vehicle, and trial and appellate counsel were ineffective
in failing to previously raise these arguments. Because we
conclude the traffic stop and search of the vehicle were
carried out within constitutional parameters, Rose has not
established trial or appellate counsel rendered ineffective
assistance, and we affirm the PCR court's ruling denying
Rose's PCR application.
Background Facts & Proceedings.
facts of this case are stated in our previous opinion,
State v. Rose, No. 11-0243, 2012 WL 652440, at *1
(Feb. 29, 2012):
On May 29, 2010, around noon, Iowa State Trooper Paul Rairden
observed a Keokuk Contractors van parked on the shoulder of
the road in a remote area near a salvage yard. Rairden stated
he patrolled the area frequently and thought it was unusual
that the van was parked in the industrial area on a Sunday
Rairden pulled up next to the van and rolled down his window
to ask if everything was okay. Rairden testified the driver
of the van, Donnie Rose, did not roll down his window, but he
indicated everything was fine. When Rairden pulled away, Rose
also drove away slowly. As the van left, Rairden noticed a
passenger in the van he had not initially seen. Rose drove
very slowly down the road and rolled through a stop sign
without coming to a complete stop. Rairden also noticed that
two of the van's brake lights were out.
Rairden turned on his emergency lights and stopped the van.
Rairden testified that as he turned on his lights, he saw the
passenger of the van, later identified as Joseph Jones, lean
over and reach between the driver and passenger seats, making
a downward motion. Rairden testified he saw Jones make these
furtive movements twice. Rairden testified this worried him
because he feared Jones was hiding a weapon.
Rairden approached the driver's side of the van and asked
for Rose's license, registration, and insurance
information. Rose produced the requested information, and
Rairden asked Rose to come back to his police car. Rose was
cooperative. Rairden issued Rose a repair card for the brake
lights and a warning for running the stop sign. Rairden
testified that once he had Rose in the police car, he
requested backup because he intended to search the van and
wanted backup there before he did so due to "the furtive
movements of the passenger." Rairden and Rose sat in the
patrol car while Rairden completed the paperwork; Jones
apparently remained in the passenger seat of the van without
raising any further suspicion.
Deputy Chad Donaldson arrived as backup, followed shortly by
Keokuk Police Officer John Simmons. Rairden turned Rose over
to Donaldson and approached the passenger side of the
vehicle. Rairden informed Jones he had observed him making
furtive movements and needed to check the area to see what
Jones had been doing. Rairden had Jones exit the vehicle and
stand back with Officer Simmons. Rairden then searched the
center console area in which Jones had been reaching and
found a box of pseudoephedrine pills, plastic baggies, and a
small bag of what appeared to be marijuana. After completing
a limited search, Rairden stopped and called the Lee County
Narcotics Task Force to finish the search of the vehicle.
Defendant Rose was subsequently charged with manufacturing
methamphetamine, possession of a precursor with the intent to
manufacture methamphetamine, and possession of marijuana.
jury trial commenced on December 14, 2010, and the jury found
Rose guilty of all three counts. Rose appealed,
"asserting the district court erred in denying his
motion to suppress because [Trooper] Rairden was not
justified in conducting a protective search based solely on
passenger Jones's furtive movements." Rose,
2012 WL 652440, at *2.
Rose's first appeal, we likened the facts to those in
State v. Riley, 501 N.W.2d 487, 488 (Iowa 1993),
where the Iowa Supreme Court held the defendant's furtive
movements along with additional suspicious circumstances gave
rise to the officer's articulable suspicion that the
defendant may be hiding or retrieving a weapon and warranted
the officer's limited search for weapons. See
Rose, 2012 WL 652440 at *3. We then held:
Just as in Riley, in the present case Rairden
"testified that he saw [the passenger] reaching down . .
. [and] was immediately alarmed by these furtive
movements." [Riley, 501 N.W.2d at 490]. "A
reasonable interpretation of these movements was that [the
passenger] was hiding or retrieving a gun, thus
understandably causing [the trooper] to be concerned for his
safety." Id. Further, as in Riley,
Rairden searched only the center console area in which he saw
Jones reaching, where he suspected a weapon might be. See
id. (noting the officer limited his search to what was
minimally necessary to learn whether the passenger was
Finally, we find that, as in Riley, additional
suspicious circumstances were present in this case.
Riley suggests that additional suspicious
circumstances do not need to be especially incriminating or
threatening when viewed in isolation[, ] the supreme court
found the mere fact that the passenger did not have
identification was sufficient to constitute additional
suspicious circumstances. Id. We conclude the
additional circumstances in this case were at least as
suspicious as those presented in Riley. In the
present case, Rairden discovered the van parked in a
remote, unusual place at an unusual time, on a Sunday. The
driver of the van declined to roll down his window to
converse with Rairden when Rairden stopped to ask if he was
alright. Further, Rairden testified when he initially
pulled up ...