from the Iowa District Court for Pottawattamie County,
Jeffrey L. Larson (motion to suppress) and James S. Heckerman
Lopez-Cardenas appeals from her deferred judgment for
possession of marijuana with intent to manufacture and her
conviction of child endangerment. REVERSED AND REMANDED.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, Presiding Judge.
trooper stopped and detained a van for close to an hour until
a drug dog arrived and alerted on the trunk. Following a
search of the vehicle, which uncovered marijuana seeds, Erika
Lopez-Cardenas was charged with and found guilty of
possession of a controlled substance (marijuana) with intent
to manufacture and child endangerment. She contends the
district court should have suppressed the marijuana evidence
on the ground that the trooper unduly prolonged the stop. She
also contends her trial attorney was ineffective in two
respects relating to the child endangerment charge.
Background Facts and Proceedings
approximately 7:25 p.m., an Iowa State trooper was patrolling
Interstate 80 when he saw a van with California plates,
"dark windows, " and what appeared to be "a
heavy weight in the rear." The van exited onto an
adjacent highway. Within two minutes, the trooper stopped the
vehicle, approached the passenger side, and asked the driver
for his license, registration, and insurance. Within the
first thirty seconds of the stop, he confirmed the tint
was seated in the middle of the second-row of seating. A girl
was seated in the front passenger seat. Lopez-Cardenas
cooperated with the trooper's request for vehicle
registration and insurance information. After the driver
provided the trooper with an expired Michigan license, the
trooper asked the driver to accompany him to the police
vehicle. At this point, the trooper had already decided to
issue a citation for the tinted windows.
trooper inquired about the driver's destination and why
he had stopped, to which the driver responded he lived and
worked in Chicago, he was traveling from California to
Chicago following a visit with his sister, and he stopped
because he was out of gas. The trooper asked the driver about
his relationship with Lopez-Cardenas; he responded they were
friends. The trooper also questioned the driver about the
girl in the front seat. Due to a language barrier, the driver
did not immediately grasp the question. He eventually
mentioned her name and said she was not his daughter. The
trooper returned to the van to speak to Lopez-Cardenas. He
was seven minutes into the stop.
trooper advised Lopez-Cardenas of the tint problem. She
mentioned they were stopped in Utah for the same violation.
The trooper questioned her along the same lines as he had
questioned the driver. She provided virtually identical
responses. He asked her about the girl in the front seat. She
said the girl was on vacation from school and had to be back
by Monday. He also asked about what he perceived to be four
cell phones in the vehicle; Lopez-Cardenas stated she only
had one cell phone and the rest belonged to the driver. The
trooper checked the gas gauge and determined the van was
indeed low on gas.
point, the trooper asked Lopez-Cardenas why the van was
sitting so low and whether anything was being carried in the
rear; she said the driver's belongings were in the back.
Eleven minutes into the stop, the trooper asked
Lopez-Cardenas to open the back hatch of the van; she
consented. The trooper glanced in the back. At the
suppression hearing, he testified to observing "several
containers of fertilizer in various weights and sizes."
a minute, the trooper returned to his vehicle and "made
a phone call to the Pottawattamie County canine officer to
ask him about hidden compartments in that type of vehicle
[and] to see if he was available to assist." He told the
canine officer about "personal items and one bag"
in the back, making no mention of the fertilizer or the girl.
When the call ended, the trooper also asked the Omaha Police
Department to dispatch a dog to the scene. The trooper was
fifteen minutes into the stop.
waiting for license checks on the driver, the trooper
continued to question the driver in the police vehicle.
Twenty minutes into the stop, the trooper received
information about the expired Michigan license. He checked on
Lopez-Cardenas' license and, a minute later, received a
response that it was valid. The trooper inquired with law
enforcement about the status of the Omaha drug dog.
Twenty-six minutes into the stop, he was advised the dog was
busy and he would be notified of the estimated time of
spending a few minutes in his vehicle, the trooper returned
to the van and re-confirmed the tint violation with
Lopez-Cardenas-the same violation he told her about seven
minutes into the stop. He again questioned Lopez-Cardenas
about their travel plans and again asked about the child, who
Lopez-Cardenas said was her niece. The trooper advised
Lopez-Cardenas he would be giving her a ticket for letting
the driver operate the vehicle with an expired license. Next