                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0836
                              Filed June 20, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WARREN ANTHONY ENGLISH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,

District Associate Judge.



      The defendant appeals from the district court’s denial of his motion to

suppress. AFFIRMED.



      Andrew B. Duffelmeyer and Thomas A. Hurd of Glazebrook & Hurd, L.L.P.,

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Katherine M. Krickbaum, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

       Warren 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.

I. Background Facts and Proceedings.

       At 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.

       The 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
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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.

       After 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.1 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.

       Officer 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.”


1
 When asked, English stated it was “Haynes or Hines or something like that.” The
woman’s last name is Hayner.
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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.

       English 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.

       English 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 two-year term of incarceration and two years of probation.

       He appeals.

II. Standard of Review.

       We review the district court’s denial of a motion to suppress de novo. State

v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). We also review claims of ineffective

assistance of counsel de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

De novo “review requires ‘an independent evaluation of the totality of the

circumstances as shown by the entire record.’” Id. (quoting State v. Turner, 630

N.W.2d 601, 606 (Iowa 2001)). We give deference to the district court’s findings
                                          5


of fact insofar as they rely on the credibility of the witnesses, but we are not bound

by such findings. Id.

III. Discussion.

       The Fourth Amendment to the Federal Constitution and article I, section 8

of the Iowa Constitution protect individuals against “unreasonable searches and

seizures.” “Subject to a few carefully drawn exceptions, warrantless searches and

seizures are per se unreasonable.” State v. Lewis, 675 N.W.2d 516, 522 (Iowa

2004). “The State has the burden to prove by a preponderance of the evidence

that a recognized exception to the warrant requirement applies.” Id.

       A. Voluntariness of Consent.

       Consent is an exception to the warrant requirement. See State v. Naujoks,

637 N.W.2d 101, 107 (Iowa 2001). In order for the consent to be valid, it must be

given voluntarily.   See Pals, 805 N.W.2d at 782 (determining if consent was

voluntarily given under the Iowa Constitution).      “Consent is considered to be

voluntary when it is given without duress or coercion, either express or implied.”

State v. Reiner, 628 N.W.2d 460, 465 (Iowa 2001). In determining whether it was

voluntary under the Iowa Constitution, we consider the totality of the circumstances

surrounding the giving of the consent. Pals, 805 N.W.2d at 782.

       In Pals, our supreme court looked to four specific factors before deciding

the motorist’s consent to search his vehicle was not voluntary under the Iowa

Constitution. 805 N.W.2d at 782–83. The court considered that at the time the

motorist gave consent, the motorist had already been subjected to a pat-down

search, was detained in a police vehicle, had not been advised that he was free to
                                          6


decline his consent, and was not told by the officer that the stop-related business

had already been concluded. Id.

       Here, English had been already been subjected to a pat-down search,

which the officer undertook after noticing the pocket knife in the door handle of the

passenger door. Cf. Pals, 805 N.W.2d at 782 (where the officer conducted a pat-

down search, including a command to Pals to empty his pockets, though “[t]here

is nothing in the record to suggest [the officer] detected danger from Pals, who was

stopped over a civil infraction”). Additionally, English was not advised he had the

right to refuse his consent. However, English was aware he could do so. In the

video of the stop, which the parties jointly entered into evidence, Officer Kelley can

be heard explaining to English why he arrested him and why he believes the drugs

found in the vehicle belong to English. English responds, “That’s where—that’s

where it got me. . . . I wouldn’t have said ‘search my car’ if I knew there was weed

in it.” This is supported by English’s not unsubstantial experience with the criminal

justice system. See State v. Pettijohn, 899 N.W.2d 1, 32 (Iowa 2017) (assessing

whether a defendant’s consent to a warrantless search was voluntary and

considering “personal characteristics of the defendant, such as . . . experience with

the law.”). Additionally, unlike in Pals, English was not seated in the police vehicle

at the time the officer requested consent. 805 N.W.2d at 782. Rather, Officer

Kelley and English stood near English’s vehicle, and English was not handcuffed.

Finally, Officer Kelley had not advised English the reason for the stop had

concluded, but in fact, it had not. The initial reason for the stop—the vehicle being

operated without rear a license plate—may have ended, but after Officer Kelley

ran the identifications through the police records system, he had a reasonable
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suspicion regarding the two individuals being involved in the crime of prostitution,

which Officer Kelley continued to investigate at the time he asked English if he

could search his vehicle.

       Additionally, there is no reason to believe English was under the influence

of drugs or alcohol or otherwise unable to appreciate what was occurring at the

time Officer Kelley asked to search. See Pettijohn, 899 N.W.2d at 32 (including

the defendant’s intelligence and sobriety as personal characteristics to consider).

While all traffic stops on a public road have “inherently coercive” elements, see

Pals, 805 N.W.2d at 783, here, Officer Kelley maintained a polite, calm demeanor

while speaking with English. Neither his words nor his actions appear coercive in

nature. We acknowledge English’s claim that members of certain racial minorities

may have a more problematic relationship with law enforcement, which can inform

an individual’s actions and whether they feel they are able to refuse law

enforcement’s request.        However, based on Officer Kelley’s actions and

demeanor, as well as English’s demeanor and responses throughout his

interaction with the officer—as seen and heard on the video from the encounter—

we find English’s consent was voluntary.

       Thus, the district court did not err in denying English’s motion to suppress.

       B. Ineffective Assistance of Counsel.

       English maintains his trial counsel provided ineffective assistance by 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.
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       A defendant may raise claims of ineffective assistance on direct appeal if

he or she has reasonable grounds to believe the record is adequate to address the

claim on direct appeal. Straw, 709 N.W.2d at 133 (citing Iowa Code § 814.7(2)).

Here, the State concedes the record is adequate.

       To establish his claims of ineffective assistance, English has the burden to

establish by a preponderance of the evidence that “(1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.”     Id.   “A

defendant establishes prejudice by showing ‘there is a reasonable probability that,

but for the counsel’s unprofessional errors, the result of the proceeding would have

been different.’” State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999). If either element

is lacking, English’s claim fails. See Straw, 709 N.W.2d at 133.

       1. Duration of Stop.

       English maintains counsel was ineffective for failing to challenge the

duration of the stop as unconstitutional. He maintains that the officer unlawfully

increased the duration and scope of the initial stop by speaking with the passenger

and asking for her identification as well.

       Pursuant to State v. Coleman, a law enforcement officer making a valid

traffic stop supported by reasonable suspicion must terminate the stop when the

underlying reason for the stop has been resolved and there is no other basis for

reasonable suspicion. 890 N.W.2d 284, 301 (Iowa 2017). But here, the reason

for the stop had not been resolved when Officer Kelley requested the identification

of the female passenger and she spoke to him, stating that she had been walking

and English picked her up to take her home. The officer had only just reached the

driver’s window and asked English for his information and reason for operating the
                                            9


vehicle without a license plate; the officer was still standing at the window waiting

for English to locate his insurance information when he asked the passenger to

provide her identification as well. An officer may ask for the identification of a

passenger in a vehicle that has been stopped. See State v. Smith, 683 N.W.2d

542, 545 (Iowa 2004) (reaffirming prior holding that an officer may speak with or

ask for the identification of a passenger without “articulable suspicions or need to

arrest the driver or make a search” (quoting State v. Riley, 501 N.W.2d 487, 489

(Iowa 1993))).

       Officer Kelley’s request for identification from the passenger while he was

still waiting to receive English’s information was not an unconstitutional expansion

of the duration or scope of the stop. Moreover, as English recognizes, once the

officer ran the passenger’s identification, he had reasonable suspicion of

prostitution, which provided a basis for the lawful continuance of the stop. Trial

counsel would not have been successful if he raised the issue in the motion to

suppress, so English’s claim of ineffective assistance fails. See State v. Greene,

592 N.W.2d 24, 29 (Iowa 1999) (“[C]ounsel is not incompetent in failing to pursue

a meritless issue.” (alteration in original)).

       2. Knowing Consent.

       English maintains trial counsel provided ineffective assistance when he

failed to advocate for a new standard under the Iowa Constitution requiring consent

to be knowing in order for it to constitute a valid waiver.

       Here, English’s claim fails, as he cannot establish by a preponderance

evidence that counsel breached a duty by failing to raise the issue.             We

acknowledge that best practice may include making arguments that are not yet
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accepted parts of Iowa’s constitutional jurisprudence—especially as members of

our supreme court have expressed interest in this particular issue. See, e.g., Pals,

805 N.W.2d at 782 (declining to decide whether a knowing or intelligent waiver of

search and seizure rights was necessary as a narrower ground was dispositive).

But “an attorney need not be a ‘crystal gazer’ who can predict future changes in

established rules of law in order to provide effective assistance to a criminal

defendant.” State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982); see also

Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981) (finding trial counsel was not

ineffective for failing to raise issue that would have been foreclosed by Iowa case

law as it existed at the time, even though the law was later changed).

       As it would be “patently unfair to adjudge” counsel for failing to make an

argument that diverges from precedent, see State v. Liddell, 672 N.W.2d 805, 814

(Iowa 2003), we cannot say counsel breached an essential duty. Thus, this claim

of ineffective assistance fails.

IV. Conclusion.

       Because we find English’s consent to the search of his vehicle was

voluntarily given and he has not proven either of his claims of ineffective

assistance, we affirm.

       AFFIRMED.
