                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1695
                               Filed June 21, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY ALBERT TRONCA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Defendant appeals his conviction for murder in the first degree.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., and Potterfield and Bower, JJ.
                                        2


BOWER, Judge.

       Anthony Tronca appeals his conviction for murder in the first degree. We

find the district court did not err in denying Tronca’s motion to suppress. Also,

Tronca has not shown the police department lacked reasonable standardized

procedures for the impoundment of the car and the impoundment was for the

purpose of investigating criminal activity, so the impoundment is not

unconstitutional.   Additionally, Tronca has not shown he received ineffective

assistance due to defense counsel’s failure to raise a claim under the Iowa

Constitution there had been an improper pretextual stop.       We preserve for

possible postconviction proceedings Tronca’s claim of ineffective assistance due

to the failure to challenge the seizure of his business building.     We affirm

Tronca’s conviction for first-degree murder.

       I.     Background Facts & Proceedings

       On September 9, 2014, Waterloo police officers received a missing person

report for Ronald Randall. The officers were aware Randall was friends with

Curtis Radamacher and Radamacher was often present at AJT Auto, an auto

body shop owned by Tronca. There was also information methamphetamine

was being distributed from the business and Tronca owned firearms.

Additionally, officers received information Randall was last seen at AJT Auto and

there had been a shooting at the business.

       Officers went to AJT Auto in an attempt to locate Radamacher. In addition

to wanting to talk to Radamacher about the missing person case, there was a

warrant for Radamacher’s arrest for probation violations. Tronca came to the

door and told the officers he did not know Radamacher. The officers said they
                                          3


were not concerned about what was going on at the business, “so anything

beyond a dead body, we’re not concerned about.” Tronca responded, “[T]hat’s

why I’m not going to let you in here.”        The officers left without contacting

Radamacher.

       On September 11, 2014, Elvis Medrano, who was cooperating with the

police, told Officer Jeffrey Zubak that Radamacher would be present at a specific

address. Officers set up surveillance at the home. They observed Radamacher

and Tronca come out of the house. Tronca put a dark-colored bag into the trunk

of an Oldsmobile Alero, and then he drove away in the vehicle with Radamacher

as a passenger.

       The officers decided to stop the vehicle, knowing there was an arrest

warrant for Radamacher. A marked police car behind the Alero activated its

lights, but the Alero did not stop right away.      Officer Joseph Saunders saw

movement in the vehicle and thought the occupants were “possibly trying to hide

something.”    When the vehicle was stopped, Radamacher had a backpack

between his feet, which he threw into the backseat.          Radamacher was not

compliant with officers’ requests and was arrested for probation violations and

interference with official acts. He was transported to the police station.1

       The officers determined the Alero was registered to Tronca’s wife, Jennifer

Tronca. The officers discovered Tronca’s driver’s license had been suspended,

and he was arrested for driving while license suspended.          Tronca was also

transported to the police station. He did not ask for anyone else to pick up the


1
    At the police station, Radamacher stated he did not feel well because he had
swallowed methamphetamine. He was given medical assistance.
                                         4


Alero.    Officer Jeffrey Tyler determined the vehicle should be towed to the

impound lot.     He stated this was based partially on the traffic stop, but also

because officers wanted to look further into the missing person case. Officer

Tyler stated there was no one to drive the vehicle from the scene because both

the driver and passenger had been arrested.

         A police dog sniffed around the vehicle at the impound lot and alerted to

narcotics.    Officers obtained a search warrant for the vehicle.     They found

methamphetamine, a .380 Lorcin handgun, and ammunition for a .45 firearm.2

         Radamacher later told officers he, Tronca, and Randall had been smoking

methamphetamine on September 2, 2014, in a room at AJT Auto used to paint

vehicles, when Tronca asked Randall if Randall had sex with Tronca’s girlfriend,

Jessica Ogden. Tronca did not wait for a response before Tronca shot Randall

three to five times. Valerie Vandervort was present in the building and heard the

shots. Radamacher told her Tronca shot Randall. Tronca told Ogden what he

had done. Radamacher and Ogden helped Tronca remove the body, cover it

with plastic, and dump it in a remote location. Tronca had the paint room at AJT

Auto repainted. He told an employee of AJT Auto, Jeremiah Griggs, he shot

Randall. Radamacher showed officers the place where the body was hidden.

         Tronca was charged with first-degree murder, in violation of Iowa Code

section 707.2 (2014). He filed a motion to suppress, claiming the vehicle should

not have been impounded because there was no issue of officer safety or

evidence preservation related to the charge he was driving while his license was


2
   Randall was shot in the head with a .380 Lorcin and shot in the torso with a .45
Ruger. A .45 Ruger handgun was found in Tronca’s office.
                                         5


suspended. At the suppression hearing, the prosecutor stated he believed the

issue was “the delay actually doing the search and getting the search warrant as

far as the impoundment or seizure of the vehicle shouldn’t have happened,” and

defense counsel agreed.

      The district court denied the motion to suppress. The court found:

      Both occupants of the vehicle had been placed under arrest and
      were transported to the Waterloo Police Department for processing.
      There was no licensed driver remaining at the scene to remove the
      vehicle from the roadway. In addition, Officers had the backdrop of
      the foregoing facts to establish not only reasonable suspicion but
      probable cause that the vehicle contained contraband. The facts
      and circumstances outlined above would lead a reasonably prudent
      person to believe that the vehicle contained contraband. It was
      reasonable and, in fact, prudent for officers to secure the vehicle
      while a search warrant was obtained. . . . The seizure of the
      vehicle was constitutionally permissible.

      A jury found Tronca guilty of murder in the first degree. He was sentenced

to life in prison. Tronca now appeals his conviction.

      II.     Search and Seizure

      A.      Tronca claims the district court should have granted his motion to

suppress. He states the impoundment of the Alero was not reasonable under the

Fourth Amendment to the United States Constitution and article I, section 8 of the

Iowa Constitution.   He claims the Waterloo Police Department did not have

reasonable standardized procedures for the impoundment of vehicles and the car

was solely impounded for the purpose of investigating criminal activity.

      In general, “a search of private property without valid consent is

unreasonable unless it has been authorized by a warrant issued upon probable

cause.”     State v. Huisman, 544 N.W.2d 433, 436 (Iowa 1996).             A vehicle

inventory search is recognized as an exception to the warrant requirement. Id.
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The legality of a vehicle inventory search is dependent upon (1) the validity of the

impoundment, and (2) the scope of the inventory.        Id.   Because the officers

obtained a search warrant after impounding the Alero, this case concerns only

the first element—the validity of the impoundment.

       “An impoundment is proper if it is reasonable.” Id. In determining the

reasonableness of impoundment, “we look for the existence of reasonable

standardized procedures and a purpose other than the investigation of criminal

activity.” Id. at 437. We do not “second-guess[ ] a police officer’s exercise of

professional judgment regarding impoundment of an automobile when the

judgment was exercised in accordance with otherwise reasonable police

department regulations.” Id. (citation omitted). It is not necessary for there to be

a written standardized policy.      Id.   The policy should “contain reasonable

standardized criteria limiting an officer’s discretion to impound a vehicle.” Id. at

438. The standardized policies should not give officers unlimited discretion to

conduct searches. Id.

       As noted, “an impoundment is unconstitutional if it is done to investigate

suspected criminal activity.” Id. at 439. “[A]n investigatory purpose invalidates

an inventory search only if the search is conducted for the sole purpose of

investigation.” Id. “To decide whether the officers were motivated solely by an

investigatory purpose, we examine whether, when viewed objectively, an

administrative reason for the impoundment existed.” Id. “If the officers could

have had a caretaking reason to impound the car, then we assume they did not

act solely to investigate criminal activity.   We do not analyze the subjective

motivations of the officers.” Id. at 439-40.
                                          7


      At the suppress hearing, Officer Saunders testified:

              Q. And are vehicles at certain times towed when there’s not
      a valid driver to take a vehicle from the scene if no one requests
      otherwise? A. Yes.
              Q. And would that be a standard procedure with the
      Waterloo Police Department? A. Yes.
              Q. And it’s not always done, but without a valid driver to take
      that, is towing the vehicle an option that you have with the Waterloo
      Police Department? A. It could be, yes.

      We determine the evidence shows the Alero was impounded pursuant to

reasonable standardized procedures of the Waterloo Police Department.

Although the policy of the police department was not completely articulated

during the suppression hearing, the testimony of Officer Saunders shows there

were reasonable standardized procedures for towing vehicles. See id. at 437

(noting “we look for the existence of reasonable standardized procedures”).

Under these standardized procedures, a vehicle could be towed if there was no

valid driver at the scene and no one had requested the car be picked up.

      The evidence shows Tronca did not request to have anyone else come to

take the car and there was no valid driver to remove the vehicle from the scene.

Both the driver, Tronca, and the passenger, Radamacher, had been taken to the

police station. Officer Saunders’s testimony shows the officers acted within the

scope of the reasonable standardized procedures of the police department when

they made the decision to tow the vehicle. We will not second-guess the officers’

“exercise of professional judgment regarding impoundment of an automobile

when the judgment was exercised in accordance with otherwise reasonable

police department regulations.” See id.
                                          8


       We also determine the sole purpose of the impoundment was not to

investigate criminal activity. Officer Tyler testified there were no licensed drivers

available to take the vehicle after Tronca and Radamacher were arrested. He

additionally stated the vehicle was towed for “safekeeping” and due to

information received in the missing person case. Because the officers had a

caretaking reason to impound the car, we can assume they did not act solely to

investigate criminal activity. See id. at 439-40.

       B.      Tronca claims the officers did not have probable cause to seize the

vehicle.    He states the seizure was improper because officers did not have

probable cause to believe there was contraband in the vehicle. Tronca states at

the time the vehicle was seized officers did not have sufficient information to

show the vehicle was involved in criminal activity.

       On constitutional issues our review is de novo. State v. Lane, 726 N.W.2d

371, 377 (Iowa 2007). The seizure of a vehicle, prior to the issuance of a search

warrant, may be valid based upon probable cause coupled with exigent

circumstances.3 State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006). There is

probable cause for the search and seizure of a vehicle:

       when the facts and circumstances would lead a reasonably prudent
       person to believe that the vehicle contains contraband. The facts
       and circumstances upon which a finding of probable cause is based
       include “the sum total . . . and the synthesis of what the police
       [officer has] heard, what [the officer] knows, and what [the officer]
       observe[s] as [a] trained officer[ ].”




3
     The exigency requirement is satisfied by a vehicle’s inherent mobility. State v.
Allensworth, 748 N.W.2d 789, 795 (Iowa 2008). The exigency requirement is satisfied if
the vehicle is searched at the scene or if the vehicle is impounded and searched later.
Id. at 797.
                                          9

Id. (citation omitted). Probable cause “must be based on facts that would justify

a magistrate to issue a warrant, even though the officers had not actually

obtained a warrant.” Id. “A probable cause finding rests on a nexus between the

criminal activity, the place to be searched, and the items to be seized.” Id.

       We determine the officers had probable cause to seize the Alero. The

officers   had   information   Tronca   was    involved   in   the   distribution   of

methamphetamine and he owned firearms. The officers had information there

had been a shooting at Tronca’s business and Randall had last been seen there.

The officers were aware Tronca denied knowing Radamacher but at the time of

the stop was in a vehicle with Radamacher. Furthermore, when officers came to

Tronca’s business looking for Radamacher, stating “so anything beyond a dead

body, we’re not concerned about,” Tronca responded, “[T]hat’s why I’m not going

to let you in here.” Additionally, there was Officer Saunders’s observation the

occupants of the Alero appeared to be “possibly trying to hide something” while

the police car was attempting to stop the vehicle.

       In addition, the officers were entitled to stop the vehicle because they had

a reasonable belief there was a valid warrant for the arrest of Radamacher, who

was a passenger in the vehicle. See United States v. O’Connor, 658 F.2d 688,

691 (9th Cir. 1981) (“It is obvious that in executing the warrant, the agents could

stop the vehicle in which they reasonably thought O’Connor was a passenger.”).

       We agree with the district court’s conclusion the officers had probable

cause to believe the vehicle contained contraband.         We conclude the court

properly denied the motion to suppress.
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       III.     Ineffective Assistance

       Tronca claims he received ineffective assistance from defense counsel.

We review claims of ineffective assistance of counsel de novo.        Ennenga v.

State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       A.       Tronca claims defense counsel should have challenged the stop of

the Alero on the ground it was pretextual. He states the district court could have

found a pretextual stop was unconstitutional under article I, section 8 of the Iowa

Constitution.

       Under the United States Constitution, the reasonableness of traffic stops

does not depend on the actual motivations of the officers. Whren v. United

States, 517 U.S. 806, 813 (1996).        The United States Supreme Court has

concluded pretextual stops are constitutional under the Fourth Amendment. See

id. at 814. Our supreme court has stated, “The search and seizure clause of the

Iowa Constitution is substantially identical in language to the Fourth Amendment.

We therefore usually deem the two provisions to be identical in scope, import,

and purpose.” State v. Kreps, 650 N.W.2d 636, 640-41 (Iowa 2002) (citations

omitted).     Our supreme court has also stated, “The motivation of the officer

stopping the vehicle is not controlling in determining whether reasonable

suspicion existed. The officer is therefore not bound by his real reasons for the
                                        11

stop.” Id. at 641 (citations omitted); see also State v. Harrison, 846 N.W.2d 362,

366 (Iowa 2014).

       Tronca acknowledges the law in Iowa does not support his claim a

pretextual stop is unconstitutional under the Iowa Constitution.      But cf. In re

Pardee, 872 N.W.2d 384, 397 (Iowa 2015) (Wiggins, J., concurring specially)

(“However, I would go further and find a pretextual stop violates article I, section

8 of the Iowa Constitution.”). Tronca asks for a modification of the current law to

include an examination of an officer’s subjective reasons for a stop in order to

evaluate whether the stop was pretextual. “We are not at liberty to overturn Iowa

Supreme Court precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct.

App. 1990).    We determine Tronca has not shown he received ineffective

assistance due to defense counsel’s failure to challenge the stop of the Alero on

the ground it was a pretextual stop.

       B.     Tronca claims he received ineffective assistance because defense

counsel did not challenge the seizure of AJT Auto prior to the issuance of a

search warrant. He states officers seized the building, not allowing anyone in or

out, for some period of time before they obtained a search warrant and then

executed the warrant. He notes, “The exact length of time between the seizure

and the granting of a search warrant cannot be determined by the current

record.” The State agrees it is impossible to assess the length of the State’s

seizure of AJT Auto based on the current record.         We determine this issue

should be preserved for possible postconviction proceedings.          See State v.

Oberhart, 789 N.W.2d 161, 163 (Iowa 2010) (preserving an issue for
                                        12


postconviction review when the record was inadequate to decide the issue in the

direct appeal).

       We affirm Tronca’s conviction for first-degree murder.

       AFFIRMED.
