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Rose v. State

Court of Appeals of Iowa

July 19, 2017

DONNIE R. ROSE, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Lee County (South), John M. Wright, Judge.

         Donnie 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.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

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

          DANILSON, Chief Judge.

         Donnie 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.

         I. Background Facts & Proceedings.

         The 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 morning.
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.

         The 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.

         In 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 armed).

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 ...


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