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State v. Lopez-Cardenas

Court of Appeals of Iowa

August 2, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ERIKA ORQUIDA LOPEZ-CARDENAS, Defendant-Appellant.

         Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson (motion to suppress) and James S. Heckerman (trial), Judges.

         Erika Lopez-Cardenas appeals from her deferred judgment for possession of marijuana with intent to manufacture and her conviction of child endangerment. REVERSED AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          VAITHESWARAN, Presiding Judge.

         A 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.

         I. Background Facts and Proceedings

         At 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 violation.[1]

         Lopez-Cardenas 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.

         The 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.

         The 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.

         At this 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."

         Within 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.

         While 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 arrival.

         After 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 ...


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