                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1990
                              Filed July 19, 2017


DONNIE R. ROSE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Lee County (South), John M.

Wright, Judge.



      Donnie Rose appeals the denial of his application for postconviction relief

contending trial counsel and appellate counsel rendered ineffective assistance.

AFFIRMED.




      William R. Monroe of the Law Office of William Monroe, Burlington, for

appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.




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


DANILSON, Chief Judge.

      Donnie Rose appeals the denial of his application for postconviction relief

(PCR) contending trial counsel and appellate counsel rendered ineffective

assistance. Rose maintains officers unconstitutionally prolonged the traffic stop

and searched his vehicle, and trial and appellate counsel were ineffective in

failing to previously raise these arguments. Because we conclude the traffic stop

and search of the vehicle were carried out within constitutional parameters, Rose

has not established trial or appellate counsel rendered ineffective assistance,

and we affirm the PCR court’s ruling denying Rose’s PCR application.

      I. Background Facts & Proceedings.

      The facts of this case are stated in our previous opinion, State v. Rose,

No. 11-0243, 2012 WL 652440, at *1 (Feb. 29, 2012):

             On May 29, 2010, around noon, Iowa State Trooper Paul
      Rairden observed a Keokuk Contractors van parked on the
      shoulder of the road in a remote area near a salvage yard. Rairden
      stated he patrolled the area frequently and thought it was unusual
      that the van was parked in the industrial area on a Sunday morning.
             Rairden pulled up next to the van and rolled down his
      window to ask if everything was okay. Rairden testified the driver
      of the van, Donnie Rose, did not roll down his window, but he
      indicated everything was fine. When Rairden pulled away, Rose
      also drove away slowly. As the van left, Rairden noticed a
      passenger in the van he had not initially seen. Rose drove very
      slowly down the road and rolled through a stop sign without coming
      to a complete stop. Rairden also noticed that two of the van’s
      brake lights were out.
             Rairden turned on his emergency lights and stopped the
      van. Rairden testified that as he turned on his lights, he saw the
      passenger of the van, later identified as Joseph Jones, lean over
      and reach between the driver and passenger seats, making a
      downward motion. Rairden testified he saw Jones make these
      furtive movements twice.       Rairden testified this worried him
      because he feared Jones was hiding a weapon.
             Rairden approached the driver’s side of the van and asked
      for Rose’s license, registration, and insurance information. Rose
                                         3


       produced the requested information, and Rairden asked Rose to
       come back to his police car. Rose was cooperative. Rairden
       issued Rose a repair card for the brake lights and a warning for
       running the stop sign. Rairden testified that once he had Rose in
       the police car, he requested backup because he intended to search
       the van and wanted backup there before he did so due to “the
       furtive movements of the passenger.” Rairden and Rose sat in the
       patrol car while Rairden completed the paperwork; Jones
       apparently remained in the passenger seat of the van without
       raising any further suspicion.
               Deputy Chad Donaldson arrived as backup, followed shortly
       by Keokuk Police Officer John Simmons. Rairden turned Rose
       over to Donaldson and approached the passenger side of the
       vehicle. Rairden informed Jones he had observed him making
       furtive movements and needed to check the area to see what
       Jones had been doing. Rairden had Jones exit the vehicle and
       stand back with Officer Simmons. Rairden then searched the
       center console area in which Jones had been reaching and found a
       box of pseudoephedrine pills, plastic baggies, and a small bag of
       what appeared to be marijuana. After completing a limited search,
       Rairden stopped and called the Lee County Narcotics Task Force
       to finish the search of the vehicle.
               Defendant Rose was subsequently charged with
       manufacturing methamphetamine, possession of a precursor with
       the intent to manufacture methamphetamine, and possession of
       marijuana.

       The jury trial commenced on December 14, 2010, and the jury found Rose

guilty of all three counts. Rose appealed, “asserting the district court erred in

denying his motion to suppress because [Trooper] Rairden was not justified in

conducting a protective search based solely on passenger Jones’s furtive

movements.” Rose, 2012 WL 652440, at *2.

       In Rose’s first appeal, we likened the facts to those in State v. Riley, 501

N.W.2d 487, 488 (Iowa 1993), where the Iowa Supreme Court held the

defendant’s furtive movements along with additional suspicious circumstances

gave rise to the officer’s articulable suspicion that the defendant may be hiding or
                                         4

retrieving a weapon and warranted the officer’s limited search for weapons. See

Rose, 2012 WL 652440 at *3. We then held:

              Just as in Riley, in the present case Rairden “testified that he
      saw [the passenger] reaching down . . . [and] was immediately
      alarmed by these furtive movements.” [Riley, 501 N.W.2d at 490].
      “A reasonable interpretation of these movements was that [the
      passenger] was hiding or retrieving a gun, thus understandably
      causing [the trooper] to be concerned for his safety.” Id. Further,
      as in Riley, Rairden searched only the center console area in which
      he saw Jones reaching, where he suspected a weapon might be.
      See id. (noting the officer limited his search to what was minimally
      necessary to learn whether the passenger was armed).
              Finally, we find that, as in Riley, additional suspicious
      circumstances were present in this case. Riley suggests that
      additional suspicious circumstances do not need to be especially
      incriminating or threatening when viewed in isolation[,] the supreme
      court found the mere fact that the passenger did not have
      identification was sufficient to constitute additional suspicious
      circumstances. Id. We conclude the additional circumstances in
      this case were at least as suspicious as those presented in Riley.
      In the present case, Rairden discovered the van parked in a
      remote, unusual place at an unusual time, on a Sunday. The driver
      of the van declined to roll down his window to converse with
      Rairden when Rairden stopped to ask if he was alright. Further,
      Rairden testified when he initially pulled up to the van, he did not
      see a passenger, raising the possibility the passenger may have
      been hiding.
              Accordingly, we conclude Jones’s furtive movements were
      accompanied by additional suspicious circumstances, giving
      Rairden a specific and articulable suspicion to justify a limited
      protective weapons search of the area in which he saw Jones
      reaching.

Id. at *3-4. We also noted, however,

      Riley involved a protective search conducted immediately or shortly
      after the furtive movements were observed. . . . [And] Rose did not
      challenge the search of his van on the basis that the traffic stop had
      been completed or that the passage of time with Jones sitting alone
      in the van made the officer’s need for self-protection less
      compelling.

Id. at *2 n.1 (internal citation omitted). In this case, Trooper Rairden requested

back-up law enforcement officers before searching the vehicle, requiring Rose to
                                         5


wait in Trooper Rairden’s vehicle for approximately twenty to thirty minutes

before other officers arrived.

       Rose filed the PCR application on July 17, 2012, and filed an amended

application on December 23, 2013. Rose asserted trial counsel was ineffective

in failing to renew the motion to suppress based on facts presented at trial and

argue the vehicle search exceeded the bounds permitted by Terry v. Ohio, 392

U.S. 1, 27 (1968), and Knowles v. Iowa, 525 U.S. 113, 118-19 (1998). Rose also

asserted trial counsel was ineffective in failing to argue the stop of the vehicle

was unconstitutionally prolonged beyond the time reasonably required to

complete the traffic stop. Rose asserted appellate counsel was also ineffective

for failing to raise these arguments in the first appeal. By agreement of the

parties, the matter was submitted to the PCR court without a hearing.

       The PCR court held Jones’s furtive movements gave Trooper Rairden

reasonable suspicion to search for weapons and it would therefore be fruitless for

trial counsel to renew the motion to suppress. The PCR court also held the traffic

stop was not unconstitutionally prolonged because the stop was permissibly

extended based on Trooper Rairden’s reasonable suspicion that weapons could

be hidden in the vehicle. The PCR court determined neither trial nor appellate

counsel rendered ineffective assistance and denied Rose’s PCR application.

Rose now appeals.

       II. Standard of Review.

       “We normally review postconviction proceedings for errors at law.” Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). “Applications for postconviction

relief that allege ineffective assistance of counsel, however, raise a constitutional
                                          6


claim. We review postconviction proceedings that raise constitutional infirmities

de novo.”    Id.; see also Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012)

(“Where the application alleges constitutional error, our ‘review is de novo “in

light of the totality of the circumstances and the record upon which the

postconviction court’s rulings w[ere] made.”’” (citations omitted)).

       III. Analysis.

       Rose asserts his PCR application should have been granted because trial

and appellate counsel were ineffective in failing to challenge the search of the

vehicle on the basis it occurred after the traffic citations were issued and the

need for an investigation was over.

       “To prevail on a claim of ineffective assistance of counsel, a claimant must

satisfy the Strickland [v. Washington, 466 U.S. 668, 687(1984),] test by showing

‘(1) counsel failed to perform an essential duty; and (2) prejudice resulted.’”

State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012).

       A. Terry and Knowles. Rose first contends trial and appellate counsel

should have argued Trooper Rairden’s search of the vehicle exceeded the

bounds of Terry and Knowles because Trooper Rairden did not reasonably

believe Rose and Jones were armed and dangerous as required by Terry, 392

U.S. at 27, and because Trooper Rairden was not permitted to search the vehicle

incident to the issuance of a traffic citation as held in Knowles, 525 U.S. at 117.

       In Knowles the United State Supreme Court refused to extend the bright-

line rule that officers may search incident to arrest to situations involving only the

issuance of a citation.     525 U.S. at 118-19.       While the Court in Knowles

acknowledged the threat to officer safety is less significant in a traffic-stop
                                          7


scenario than during an arrest, it still maintained “officer safety in this context

may justify . . . ‘minimal’ additional intrusion.” Id. at 117. However, the United

States Supreme Court has more recently recognized “[t]raffic stops are

‘especially fraught with danger to police officers,’ so an officer may need to take

certain negligibly burdensome precautions in order to complete his mission

safely.”   Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015).

Notwithstanding the recognition of the danger of traffic stops, in light of Knowles,

the State may not rely solely upon the issuance of a citation to support a search.

See Knowles, 525 U.S. at 118-19.

       On Rose’s direct appeal, we upheld the search because “Jones’s furtive

movements were accompanied by additional suspicious circumstances, giving

[Trooper] Rairden a specific and articulable suspicion to justify a limited

protective weapons search of the area in which he saw Jones reaching.” Rose,

2012 WL 652440, at *4. In reaching this conclusion we relied upon the principles

in Riley, 501 N.W.2d at 490, which in turn applied the principles in Michigan v.

Long, 463 U.S. 1032, 1049 (1983), and Terry, 392 U.S. at 27.

       Here, Trooper Rairden expressed a concern for his safety justifying the

additional intrusion of a search of the vehicle, and such a justification is

supported by the law.     See State v. Bergmann, 633 N.W.2d 328, 333 (Iowa

2001); see also Riley, 501 N.W.2d at 490.

       Additionally, Trooper Rairden’s search of the vehicle did not exceed the

bounds of Terry. Terry held:

       [T]here must be a narrowly drawn authority to permit a reasonable
       search for weapons for the protection of the police officer, where
       [the officer] has reason to believe that [the officer] is dealing with an
                                         8


      armed and dangerous individual, regardless of whether [the officer]
      has probable cause to arrest the individual for a crime. The officer
      need not be absolutely certain that the individual is armed; the
      issue is whether a reasonably prudent [person] in the
      circumstances would be warranted in the belief that [their] safety or
      that of others was in danger.

392 U.S at 27. The United States Supreme Court expanded upon the Terry

ruling in Long, 463 U.S. at 1049-50, holding:

      [T]he search of the passenger compartment of an automobile,
      limited to those areas in which a weapon may be placed or hidden,
      is permissible if the police officer possesses a reasonable belief
      based on ‘specific and articulable facts which, taken together with
      the rational inferences from those facts, reasonably warrant’ the
      officers in believing that the suspect is dangerous and the suspect
      may gain immediate control of weapons.

      Rose now maintains Trooper Rairden and the other officers did not

reasonably believe him and Jones to be armed and dangerous so as to justify the

limited search of the vehicle based on evidence submitted at trial.           Rose

contends the trial evidence rebuts any conclusion there was any danger or safety

concerns, and counsel was ineffective for failing to renew the motion to suppress

at the close of the evidence at trial. We disagree for several reasons.

      As we have noted, on Rose’s first appeal we already determined Trooper

Rairden acted within the bounds of Riley, and therefore Terry, in searching the

vehicle based on a specific and articulable suspicion that there may have been

weapons hidden in the vehicle. Rose, 2012 WL 652440, at *4. The law-of-the-

case doctrine prevents reconsideration of the basis for the search, providing,

      [T]he legal principles announced and the views expressed by a
      reviewing court in an opinion, right or wrong, are binding throughout
      further progress of the case upon the litigants, the trial court and
      this court in later appeals.” [State v.] Grosvenor, 402 N.W.2d [402,
      405 (Iowa 1987)]. Therefore, under the doctrine, “‘an appellate
      decision becomes the law of the case and is controlling on both the
                                          9

       trial court and on any further appeals in the same case.’” Bahl [v.
       City of Asbury, 725 N.W.2d 317, 321 (Iowa 2006)] (quoting United
       Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa
       2000)).

State v. Ragland, 812 N.W.2d 654, 658 (Iowa 2012).

       Moreover, in conducting a de novo review, as we did in Rose’s direct

appeal, “we may consider evidence presented at the suppression hearing as well

as evidence presented at trial.”      State v. Kinkead, 570 N.W.2d 97, 99 (Iowa

1997). Thus, the failure to renew the motion to suppress at the conclusion of the

trial was not prejudicial to Rose.      Finally, we are not concerned about the

subjective opinion of the officer but rather whether a “reasonably prudent

[person] in the circumstances would be warranted in the belief that [their] safety

or that of others would be in danger.” Riley, 501 N.W.2d at 489 (quoting Terry,

392 U.S. at 27).

       We thus conclude the PCR court properly denied Rose’s PCR application

with respect to the allegation trial and appellate counsel were ineffective in failing

to raise arguments based on Terry and Knowles, as such arguments would have

been meritless.     See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)

(“[C]ounsel has no duty to raise issues that have no merit.”).

       B. Prolonging the Traffic Stop. Rose also contends trial and appellate

counsel    should    have    raised    arguments     asserting    Trooper    Rairden

unconstitutionally prolonged the traffic stop.

       “[A] traffic stop [i]s more analogous to a Terry-type stop than a formal

arrest. As a result, the federal courts and many state courts have sought to
                                         10

apply Terry principles in evaluating searches and seizures arising from traffic

stops.” State v. Pals, 805 N.W.2d 767, 775 (Iowa 2011).

       Like a Terry stop, the tolerable duration of police inquires in the
       traffic-stop contest is determined by the seizure’s “mission”—to
       address the traffic violation that warranted the stop, and attend to
       related safety concerns. Because addressing the infraction is the
       purpose of the stop, it may “last no longer than is necessary to
       effectuate th[at] purpose.” Authority for the seizure thus ends when
       tasks tied to the traffic infraction are—or reasonably should have
       been—completed.

Rodriguez, 135 S. Ct. at 1614 (alteration in original) (citations omitted).      “An

officer, in other words, may conduct certain unrelated checks during an otherwise

lawful traffic stop. But . . . [the officer] may not do so in a way that prolongs the

stop, absent the reasonable suspicion ordinarily demanded to justify detaining an

individual.” Id. at 1615; see also In re Pardee, 872 N.W.2d 384, 392-93 (Iowa

2015); Bergmann, 633 N.W.2d at 335 (“[P]olice cannot unduly prolong their

detention of an individual to secure a drug dog or for any other reason without

additional suspicion of wrongdoing that warrants expansion of the stop.”).

       Rose maintains by requiring him to wait for approximately twenty to thirty

minutes after the warnings were issued for the arrival of additional officers to

provide back-up during the search, Trooper Rairden unconstitutionally prolonged

the traffic stop. We might agree if Trooper Rairden had no independent grounds

to perform a search.

       This case is distinguishable from other cases where it has been held a

traffic stop was unconstitutionally prolonged. In Rodriquez, the United States

Supreme Court held a traffic stop was unconstitutionally prolonged when—after

the officer had issued a warning ticked, returned all documents to the driver, and
                                             11


testified he “got all the reason[s] for the stop out of the way”—the driver was

required to wait seven to eight minutes for a drug-dog sniff to be performed

around the vehicle’s perimeter. 135 S. Ct. at 1613 (alteration in original). The

Court explained:

       Unlike a general interest in criminal enforcement, however, the
       government’s officer safety interests stems from the mission of the
       stop itself. Traffic stops are “especially fraught with danger to
       police officers,” so an officer may need to take certain negligibly
       burdensome precautions in order to complete his mission safely.
       On-scene investigation into other crimes, however, detours from
       that mission.

Id. at 1616.

       Similarly, our supreme court in Pardee held a traffic stop was

unconstitutionally prolonged after an officer issued traffic warnings and told the

driver he was “free to go” but then required the driver to wait for the arrival of a K-

9 unit to perform a sniff search of the vehicle. 872 N.W.2d at 388. The court

concluded the officer obtained any information that might give rise to an

individualized suspicion to justify the dog sniff after the stop was already

impermissibly prolonged. Id. at 396-97.

       Our supreme court also recently revisited this issue in State v. Coleman,

890 N.W.2d 284 (Iowa 2017). In Coleman, the officer pulled the vehicle over

because a check of the license plate revealed the female registered owner had a

suspended license. Id. at 285. Because it was dark, the officer could not initially

tell the driver was not female, but it became apparent the driver was male as the

officer approached the vehicle.        Id.        The court held the traffic stop was

unconstitutionally prolonged when the officer asked for the driver’s license and

registration because, after the officer realized the driver was not the female
                                         12


registered owner with a suspended sentence, there was no valid ongoing traffic

stop. Id. at 299. The court held, “when the reason for a traffic stop is resolved

and there is no other basis for reasonable suspicion, article I, section 8 of the

Iowa Constitution requires that the driver must be allowed to go his or her way

without further ado.” Id. at 301.

       Oppositely, we conclude Trooper Rairden’s extension of the stop was not

unconstitutional because addressing officer-safety concerns is part of the mission

of a traffic stop, and Trooper Rairden had individualized reasonable suspicion to

search the vehicle before issuing any citation.

       As to the permissible mission of a traffic stop: “Beyond deciding whether

to issue a citation, an officer may make ‘ordinary inquiries’ incident to the traffic

stop, including checking the driver’s license, determining whether the driver has

outstanding warrants, and inspecting the car’s registration and proof of

insurance.” State v. Bounmy, No. 15-2225, 2017 WL 512486, at *5 (Iowa Ct.

App. Feb. 8, 2017). Additionally, measures to ensure officer safety are part of

the mission of a traffic stop.      See Rodriguez, 135 S. Ct. at 1616 (“[T]he

government’s officer safety interest stems from the mission of the stop itself.”). In

this case, in order to ensure his safety, Trooper Rairden performed a limited

search of the center console area of the vehicle where he observed Jones

making furtive movements to check for weapons. As such, Trooper Rairden’s

search of the vehicle was part of the mission of the traffic stop, and the stop was

not unduly prolonged.

       The traffic stop in this case was not unconstitutionally extended because

Trooper Rairden’s search was supported by independent reasonable suspicion.
                                        13

See Bounmy, 2017 WL 512486, at *6 (providing that after determining whether

the traffic stop was prolonged, “[t]he next question . . . is whether individualized

suspicion . . . existed”).   In Rose’s first appeal, we concluded Jones’ furtive

movements and the additional suspicious circumstances in this case provided

Trooper Rairden specific and articulable suspicion to perform the protective

weapons search.      Rose, 2012 WL 652441, at *4.         We are bound by that

determination. Because Trooper Rairden encountered Rose and Jones parked

in a remote area during an unusual time of day, Rose initially declined to roll

down his window to speak with Trooper Rairden, and Jones was observed

making furtive movements as Trooper Rairden was initiating the traffic stop,

Trooper Rairden had individualized reasonable suspicion to search the vehicle’s

center-console area for weapons.

       We acknowledge Trooper Rairden may not have acted or appeared to

have a concern for his safety during the stop, but he did seek a back-up officer

before beginning the search.        We also acknowledge the argument that

reasonable suspicion could dissipate over the twenty-minute delay while waiting

for a back-up law enforcement officer. But as observed in State v. Storm, ___

N.W.2d ___, ___, 2017 WL 2822483, at *14 (Iowa 2017), the officer was

outnumbered, and “[w]hile they caused him no trouble, the next officer on the

roadside may not be so fortunate.” Accordingly, we find no basis to suppress the

evidence. We know of no authority that places a specific time constraint on a

legitimate search by an officer in furtherance of ensuring safety nor has Rose

cited any such authority.    Because the vehicle was a business van with two

known occupants and the stop was in a remote area, we conclude it was
                                         14


reasonable to wait for a second officer to be on the scene before attempting a

protective search of the vehicle.

       We conclude the traffic stop was not unconstitutionally prolonged and trial

and appellate counsel were not ineffective in failing to previously raise this issue.

Such an argument would have been meritless, and Rose has therefore failed to

establish trial and appellate counsel breached an essential duty or that Rose

suffered prejudice.

       IV. Conclusion.

       Because we conclude Rose has not established trial or appellate counsel

rendered ineffective assistance, we affirm the ruling of the PCR court denying

Rose’s PCR application.

       AFFIRMED.
