                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1820
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BENJAMIN DEJESUS-CRUZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sioux County, Patrick H. Tott (motion

to suppress) and Julie Schumacher (trial and sentencing), Judges.



      Benjamin DeJesus-Cruz appeals his convictions for manufacture, delivery,

or possession of methamphetamine with intent to deliver and operating while

intoxicated. AFFIRMED.



      Rees Conrad Douglas, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., and Tabor and Mullins, JJ.
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DOYLE, Presiding Judge.

       Benjamin DeJesus-Cruz appeals his convictions for manufacture, delivery,

or possession of methamphetamine with intent to deliver and operating while

intoxicated. He contends law enforcement impounded and searched his vehicle

in violation of his rights under the Iowa Constitution and, therefore, the evidence

discovered during the inventory search is inadmissible.

       On the morning of June 25, 2017, law enforcement officers received

numerous reports concerning DeJesus-Cruz driving and acting erratically. While

one officer conducted field sobriety tests of DeJesus-Cruz, another discovered his

vehicle parked illegally and initiated impoundment procedures. While conducting

a vehicle inventory, an officer discovered three large plastic bags that held smaller

plastic bags containing methamphetamine.

       The State charged DeJesus-Cruz with four drug-related counts and one

count of operating while intoxicated, which it later amended to one count each of

manufacture, delivery, or possession of methamphetamine with intent to deliver

and operating while intoxicated. DeJesus-Cruz pled not guilty and moved to

suppress the evidence recovered during the search of his vehicle, arguing the

State obtained the evidence in violation of his Fourth Amendment right under the

United States Constitution and article I, section 8 of the Iowa Constitution. The

district court denied the motion. After DeJesus-Cruz waived his right to a jury trial,

the trial court found DeJesus-Cruz guilty on both counts following a trial on the

minutes of evidence.

       On appeal, DeJesus-Cruz challenges the denial of his motion to suppress,

arguing the impoundment and inventory search of his vehicle violated his
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constitutional right against unreasonable searches and seizures. His argument

focuses solely on his rights under the Iowa Constitution. Although his trial counsel

cited both the Iowa and United States Constitutions in his motion to suppress,

DeJesus-Cruz concedes his trial counsel failed to raise an independent argument

under the state constitution, focusing his argument exclusively on federal

constitutional grounds. Because the preservation of error is uncertain, he presents

his claim under an ineffective-assistance-of-counsel rubric. See State v. Ingram,

914 N.W.2d 794, 801 (Iowa 2018) (noting a search-and-seizure claim under our

state constitution is “minimally preserved” when counsel merely cites article I,

section 8 of the Iowa Constitution but describes the claim based on “generally

adopted federal caselaw”); State v. Prusha, 874 N.W.2d 627, 630 (Iowa 2016)

(finding the defendant failed to preserve error on state constitutional claim because

he “never apprised the district court that he believed the search violated article I,

section 8”).

       We review an ineffective-assistance-of-counsel claim de novo.            See

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). In order to succeed,

DeJesus-Cruz must establish that his trial counsel breached a duty and prejudice

resulted. See id. at 856. Although we will address a claim of ineffective assistance

of counsel on direct appeal when the record is sufficient to decide the issue, see

State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014), we generally preserve such

claims for postconviction-relief proceedings where a proper record can be

developed, see State v. Null, 836 N.W.2d 41, 48 (Iowa 2013).

       DeJesus-Cruz’s argument relies primarily on our supreme court’s holding in

Ingram, in which our supreme court outlined the requirements for impoundment
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and inventory searches under the Iowa Constitution. 914 N.W.2d at 820. It

summarized those requirements as follows:

       [T]he police should advise the owner or operator of the options to
       impoundment; personal items may be retrieved from the vehicle; and
       if the vehicle is impounded, containers found within the vehicle will
       not be opened but stored for safekeeping as a unit unless the owner
       or operator directs otherwise.

Id. Because these procedures were not followed in Ingram, the court held the

warrantless inventory search violated the search and seizure protections of the

Iowa Constitution and reversed the district court order denying the defendant’s

motion to suppress on that basis. Id. at 820-21. DeJesus-Cruz claims counsel

was ineffective in failing to raise a similar state constitutional challenge to the

impoundment and inventory procedures utilized in his case.

       The State argues counsel had no duty to raise the claim asserted on appeal

because the supreme court did not decide Ingram until almost one year after the

trial court denied DeJesus-Cruz’s motion to suppress, noting we do not require

defense counsel to 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. Westeen, 591 N.W.2d 203, 210 (Iowa 1999). However,

counsel must exercise reasonable diligence in deciding whether an issue is “worth

raising.” Id. Although the caselaw in existence at the time of his arrest supported

the conclusion that the impoundment and inventory search of DeJesus-Cruz’s

vehicle passed constitutional muster under the federal constitution, the question of

whether the Iowa Constitution provided greater protection remained undecided.

See Ingram, 914 N.W.2d at 799-800 (noting Ingram’s argument under the United

States constitution cited to federal cases that generally provide warrantless
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inventory searches of automobiles are permissible, his state constitutional

challenge had “different dimensions”). Before Ingram was decided, “a number of

state courts ha[d] rejected the two-pronged policy approach of the United States

Supreme Court in favor of a more restrictive approach that sharply limits

warrantless searches and seizures of automobiles.” Id. at 800. Under these

circumstances, counsel may be found to have rendered ineffective assistance for

failing to raise the argument. Westeen 591 N.W.2d at 210 (noting counsel had

been found ineffective for failing to raise an argument when “(1) there were no

Iowa cases that would have foreclosed the argument counsel was faulted for not

making; (2) a review of the statute ‘would have lent substantial weight’ to the

defendant’s argument; and (3) case law from other jurisdictions supported the

defendant’s position”).

       Because the record is not fully developed regarding counsel’s decision-

making and any prejudice to DeJesus-Cruz, we preserve this claim for

postconviction relief. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (“If

the development of the ineffective-assistance claim in the appellate brief was

insufficient to allow its consideration, the court of appeals should not consider the

claim, but it should not outright reject it.”); State v. Johnson, 784 N.W.2d 192, 198

(Iowa 2010) (if the court determines the claim cannot be addressed on appeal, the

court must preserve it for a postconviction-relief proceeding).

       AFFIRMED.
