from the Iowa District Court for Polk County, Odell G. McGhee
II, District Associate Judge.
defendant appeals from the district court's denial of his
motion to suppress.
B. Duffelmeyer and Thomas A. Hurd of Glazebrook & Hurd,
L.L.P., Des Moines, for appellant.
J. Miller, Attorney General, and Katherine M. Krickbaum,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
English appeals from the district court's denial of his
motion to suppress. English maintains the evidence obtained
during the search of his vehicle should have been suppressed
because his consent to the search was not voluntary pursuant
to the Iowa Constitution. Additionally, he claims trial
counsel was ineffective for failing (1) to challenge the
duration of the stop as unconstitutional and (2) to advocate
for a change under the Iowa Constitution requiring consent to
be knowing in order for it to constitute a valid waiver.
Background Facts and Proceedings.
approximately 2:45 a.m. on December 20, 2016, Officer Brian
Kelley noticed a vehicle being driven without a rear license
plate. Officer Kelley initiated a stop of the vehicle and
approached the driver-side window. A man-later identified as
English-was driving the vehicle, and a female passenger sat
in the front seat. Officer Kelley questioned English's
lack of rear license plate and also asked for English's
driver's license, registration, and proof of insurance.
He asked the passenger for her identification as well. While
English located the documents, the passenger volunteered the
information that she had been walking and English picked her
up to take her home. Officer Kelley later testified the
passenger appeared to be nervous.
officer returned to his police vehicle to run both
identifications through the police records system and learned
the woman had previously been convicted of prostitution. He
then returned to the passenger side of the vehicle and had
the woman step out. As she did so, Officer Kelley noticed a
pocket knife and a condom that had been placed in a holder in
the passenger-side door. At the suppression hearing, Officer
Kelley testified that, in his experience, people engaged in
prostitution often carry both items. Additionally, he
testified he initiated the stop in an area known for higher
levels of illegal drugs and prostitution.
speaking with the woman, Officer Kelley returned to the
driver-side window and had English step out of the vehicle.
The officer and English stood near the front of English's
vehicle; Officer Kelley asked English if he had any weapons
on him, and English stated he did not and then lifted his
arms. The officer conducted a pat down search of English.
English stated he had recently left a pinochle party and was
just riding around. The officer asked English if he had cash
on him; English said he did not, and the officer asked if he
could check his wallet, which English allowed him to do. When
asked, English stated he had known the female passenger for
years "just from being around." English was able to
provide the first name of the woman but did not know her
exact last name. English told the officer he had seen the
woman out walking and was giving her a ride home. When
Officer Kelley responded that English was driving in the
wrong direction to take the woman to her home, English
responded that he knew that and was "just rolling right
now." Officer Kelley then told English the woman had
been convicted of prostitution and that a condom was sitting
in the passenger door. English denied the condom was his and
denied knowing how it got there.
Kelley then asked English if "there was anything [he]
needed to know about, anything illegal" in the vehicle.
English responded, "No, nothing, " and Officer
Kelley asked if he could "take a look." English
responded, "Yes, you can." The officer told English
to step back near one of the squad cars-other officers in
other cars had arrived sometime during the stop-and then
conducted a search of the vehicle. Officer Kelley located a
cigarette container with two small bags of marijuana in it
under the driver's seat. English was then placed under
arrest. English was later charged with possession of a
controlled substance (marijuana), second offense.
filed a motion to suppress, alleging his consent to search
the vehicle was not a valid waiver of his rights because it
was not voluntarily given. After a hearing on the motion, the
district court denied it, stating, in part: "The Court
finds that the requested consent search of the
defendant's vehicle did not create an environment so
coercive that it rendered the consent invalid." The
court also denied the suppression motion on the alternative
ground of inevitable discovery.
waived his right to a jury trial and proceeded to a bench
trial on the stipulated minutes of evidence. He was found
guilty and sentenced to a suspended ...