                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0441
                            Filed November 23, 2016


AURELIO JAVIER ORTIZ,
    Petitioner-Appellee,

vs.

STATE OF IOWA,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      The State appeals a district court order granting postconviction relief to

applicant. REVERSED AND REMANDED.




      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellant State.

      Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

      Aurelio Ortiz pleaded guilty in 2013 to possession of methamphetamine

with the intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7)

(2011).   He did not file a direct appeal of his conviction, but he did seek

postconviction relief. Ortiz claimed he received ineffective assistance of counsel

because his trial counsel failed to file a motion to suppress drug evidence

obtained as a result of an allegedly unlawful search and seizure. The district

court granted Ortiz’s application for postconviction relief. The State now appeals.

                                        I.

      On November 25, 2012, Des Moines police officer Todd Wilshusen was

on duty when he observed a vehicle without a front license plate.           Officer

Wilshusen initiated a traffic stop.     While speaking with the driver, Ortiz,

Wilshusen identified the smell of marijuana coming from inside the vehicle.

Wilshusen asked Ortiz where the marijuana was, and Ortiz responded the

occupants of the vehicle had used marijuana in the car earlier that day. Officer

Wilshusen asked the occupants to exit the vehicle. He and two other officers

who had arrived at the scene then conducted a search of the vehicle. During the

search, the officers located marijuana, methamphetamine, drug paraphernalia,

and a handgun.

      On December 18, the State filed an eight-count trial information against

Ortiz. The same day, Ortiz was indicted in federal court for illegal transfer of

firearms and being a felon in possession of a firearm, both charges arising out of

the same offense conduct at issue in the state court proceeding. Ortiz retained
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private counsel to represent him in state court, and he was appointed different

counsel for the federal charges.

      Both the state and federal charges were resolved by plea agreement.

With respect to the state court proceeding, Ortiz did not file a motion to suppress

evidence. He ultimately pleaded guilty to one charge, stipulated to a sentencing

enhancement under Code section 124.411, and was sentenced to forty-five

years in prison with a mandatory minimum of fifteen years.          In the federal

proceeding, Ortiz did file a motion to suppress evidence, claiming the search of

his vehicle was unlawful. The motion to suppress evidence was denied. Ortiz

then pleaded guilty to the charge of felon in possession of a firearm and was

sentenced to sixty-six months of incarceration.     The denial of his motion to

suppress evidence and his conviction were affirmed on appeal.          See United

States v. Ortiz, No. 14-1093, 2014 WL 4637118, at *2 (8th Cir. Sept. 18, 2014).

      As stated above, at issue in the instant postconviction-relief proceeding

was whether Ortiz’s counsel was ineffective in failing to file a motion to suppress

evidence. Specifically, whether counsel should have argued the search of Ortiz’s

vehicle was unlawful under article I, section 8 of the Iowa Constitution based on

recent case law developments calling into question the viability of the long-

standing automobile exception to the warrant requirement.       The district court

granted Ortiz’s application, determining the viability of the automobile exception

under the Iowa Constitution was in serious doubt and, as a result, Ortiz’s motion

to suppress would have been granted.          Therefore, it held Ortiz’s counsel

breached an essential duty by failing to bring a motion to suppress and Ortiz was
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prejudiced because the success of the motion would have rendered a state

conviction impossible.

                                         II.

      We review claims of ineffective assistance of counsel de novo. See State

v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To prove ineffective assistance of

counsel, an applicant must show his trial counsel breached an essential duty and

prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

With respect to breach of duty, there is a strong presumption counsel’s

performance fell within the range of reasonable professional assistance. See

Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). With respect to prejudice,

the applicant must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.

      The district court found Ortiz’s counsel breached an essential duty when

counsel failed to challenge the automobile exception to the warrant requirement.

As such, it behooves us to examine the exception. “‘A warrantless search is

presumed unreasonable’ unless an exception applies.” State v. Gaskins, 866

N.W.2d 1, 7 (Iowa 2015) (citation omitted).        One such exception is the

automobile exception, which initially allowed “warrantless searches of vehicles

based on probable cause . . . as it would be impracticable to require officers to

secure a warrant ‘because the vehicle can be quickly moved out of the locality or

jurisdiction in which the warrant may be sought.’”    State v. Allensworth, 748

N.W.2d 789, 792 (Iowa 2008) (citing Carroll v. United States, 267 U.S. 132, 153
                                         5


(1925)). Later development of the doctrine “noted the exception is also justified

based on the reduced expectation of privacy, as compared to the home or office,

that individuals have in their automobiles.” Id. at 794 (citing California v. Carney,

471 U.S. 386, 391 (1985)). In 1980, our supreme court adopted the automobile

exception under article I, section 8 of the Iowa Constitution. See State v. Olsen,

293 N.W.2d 216, 220 (Iowa 1980). Olsen has not been overruled and remains

the controlling legal authority on whether the automobile exception is recognized

under the Iowa Constitution.

       Even though Ortiz’s motion would have failed on the merits under Olsen,

the district court concluded Ortiz received ineffective assistance of counsel. In

reaching this conclusion, the district court found counsel breached an essential

duty in not challenging Olsen.      The district court also found Ortiz suffered

constitutional prejudice because the motion to suppress would have been

successful despite controlling legal authority to the contrary. The district court

considered the following factors in reaching this conclusion:

       Taken in total, at the end of a basic investigation trial counsel would
       have uncovered the following information: (1) in Iowa, prevailing
       professional norms indicate a responsibility to raise meritorious
       state constitutional arguments; (2) modern technology is
       challenging the rationale supporting the automobile exception to the
       warrant requirement; and (3) the Iowa Supreme Court has
       demonstrated a willingness to fashion a body of Iowa constitutional
       law independent of federal precedent.

We address the same factors as the district court.

       As noted by the district court, prevailing professional norms do indicate a

responsibility to raise meritorious state constitutional arguments. It has been

repeatedly stated Iowa appellate courts “jealously guard” the ability to interpret
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the Iowa Constitution differently from the United States Constitution and provide

greater protection under the Iowa Constitution. See State v. Baldon, 829 N.W.2d

785, 820–21 (Iowa 2013) (collecting cases in which our supreme court has done

so). But see State v. Bohl, No. 15-1546, 2016 WL 4543957, at *2 (Iowa Ct. App.

Aug. 31, 2016) (“The right question, is not whether a state’s guarantee is the

same as or broader than its federal counterpart as interpreted by the Supreme

Court. The right question is what the state’s guarantee means and how it applies

to the case at hand.”). This is perhaps especially true where the texts differ, as

the relevant sections do here. Compare Iowa Const. art. I, § 8 (“The right of the

people to be secure in their persons, houses, papers and effects, against

unreasonable seizures and searches shall not be violated; and no warrant shall

issue but on probable cause, supported by oath or affirmation, particularly

describing the place to be searched, and the persons or things to be seized.”),

with U.S. Const. amend. IV (“The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.”). Our supreme court has

concluded the semicolon in the Iowa Constitution has great legal significance in

that it places more emphasis on the warrant requirement than the Federal

Constitution.   See State v. Short, 851 N.W.2d 474, 501–02 (Iowa 2014)

(reviewing textual and structural arguments).    In several cases, our supreme

court has broken with recent United States Supreme Court precedent to
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distinguish search-and-seizure protections in Iowa. See Short, 851 N.W.2d at

506; State v. Ochoa, 792 N.W.2d 260, 287–91 (Iowa 2010).

       It is additionally true that advances in technology may undermine the

stated rationale for the automobile exception. See Gaskins, 866 N.W.2d at 17

(Cady, C.J., concurring specially) (“An automatic exception to the warrant

requirement, particularly one based on exigency, must account for the new world

of technology, and must not continue to exist simply because it existed in the

past.”).   However, this does not necessarily mean the automobile exception

cannot and should not be justified for other reasons.

       Finally, as noted by the district court, the Iowa Supreme Court has

demonstrated a willingness to fashion its own search-and-seizure doctrine under

the Iowa Constitution. Indeed, the defense bar has been implored repeatedly to

assert more state constitutional claims to allow for more development in the area.

See id. at 34 (Appel, J., concurring specially) (stating “defense counsel should

have a working knowledge of the larger state constitutional trends around the

country”); Short, 851 N.W.2d at 489–90 (“In addition to readily searchable

caselaw, there is now a very large volume of readily accessible secondary

materials discussing just about every aspect of state constitutional law. A diligent

lawyer thus has ready access to the materials necessary to develop state

constitutional law arguments.”); Baldon, 829 N.W.2d at 816 (Appel, J., concurring

specially) (writing “no lawyer worth his or her salt can be a good advocate in

today’s world without appreciating the possibility—and value—of raising state

and federal constitutional claims in representing a client”); State v. Effler, 769

N.W.2d 880, 895 (Iowa 2009) (Appel, J., concurring specially) (“In light of our
                                           8


jealously guarded right and duty to differ in our interpretation of state

constitutional provisions, counsel should be attentive to the possibility that we

might not follow Supreme Court precedent in cases involving the interpretation of

the Iowa Constitution.”).

       Even though we agree with many of the district court’s basic assumptions,

we disagree with the conclusion that those assumptions entitle Ortiz to any relief.

First, while it is true our supreme court has emphasized defense counsel has a

duty to raise meritorious state law claims, there is no duty to challenge long-

standing case law.      See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).

Moreover, it is a step too far to find, as a matter of law, that defense counsel

breached a constitutional duty owed his client and failed to perform competently

by not filing a motion to suppress evidence contrary to ninety years of federal law

and thirty-two years of state law.

       Second, it is clear counsel made a strategic decision to not challenge the

drug evidence. Specifically, Ortiz’s drug charges would have been referred for

federal prosecution if Ortiz fought them in state court. This would have increased

Ortiz’s criminal exposure significantly. Ortiz’s trial counsel testified:

              Even if he had grounds to file a legitimate motion to
       suppress, even if I thought – we discussed this. Even if I thought
       he could win on a motion to suppress, my advice to Mr. Ortiz was
       you really wouldn’t want to do that anyway because it was made
       very clear that if Mr. Ortiz fought the State, filed a motion to
       suppress, did discovery, [the prosecutor] was going to refer the
       drug case to the feds also.
              And if that case was referred to the feds and if he wasn’t
       successful on a motion to suppress, the time he would do in prison
       would be a heck of a lot higher than what he was facing in state
       court.
              Discussing that with Mr. Ortiz, the fact that he didn’t feel as
       though he had a valid motion to suppress but also the fact that
                                         9


      even if he did, he should work a deal and keep his drug case in
      state court, that’s why we made the decision we did. It wasn’t
      based on an analysis by itself of whether he had a valid motion to
      suppress.

We are reluctant to second-guess good-faith efforts: “Improvident trial strategy,

miscalculated tactics, and mistakes in judgment do not necessarily amount to

ineffective assistance of counsel.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa

1995). And “strategic decisions made after ‘thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.’” Ledezma v.

State, 626 N.W.2d 134, 143 (Iowa 2001) (quoting Strickland, 466 U.S. at 690).

      On de novo review, we find counsel undertook a thorough investigation of

the pertinent law and facts and arrived at a reasonable strategic decision—to wit,

avoiding federal prosecution on drug charges for his client where there was no

doubt the motion to suppress evidence would fail under federal law and the

defendant would be exposed to a significantly more severe sentence.            See

Kimmelman v. Morrison, 477 U.S. 365, 384–85 (1986) (stating “the failure to file

a suppression motion does not constitute per se ineffective assistance of

counsel” and noting there might be strategic reasons for foregoing the motion);

United States v. Rosario–Puente, 41 Fed. Appx. 483, 484 (1st Cir. 2002) (stating

that in light of the reduced sentence the petitioner received, “no doubt due in part

to his agreement to withdraw the motion to suppress and plead guilty, trial

counsel’s advice seem[ed] eminently reasonable”); Tobbie v. United States, Nos.

7:10-CV-90084, 7:06-CR-17, 2013 WL 4008631, at *6 (M.D. Ga. Aug. 4, 2013)

(holding it was “within the wide range of acceptable professional conduct” to

forego motion to suppress to obtain sentencing or charging concessions); Morris
                                         10

v. United States, Nos. 2:06-cv-00938, 2:05-cr-00125, 2008 WL 4763223, at *5

(S.D. W. Va. Oct. 27, 2008) (holding counsel was not ineffective in foregoing

motion to suppress “to minimize his client’s exposure to additional charges, while

attempting to secure a reduced sentence for substantial assistance”); Ramos v.

State, 559 So. 2d 705, 706 (Fla. Dist. Ct. App. 1990) (holding counsel was not

ineffective in failing to file motion to suppress where case law at the time allowed

search); People v. Williams, No. 4-13-1092, 2016 WL 482418, at *4 (Ill. App. Ct.

Feb. 4, 2016) (holding counsel was not ineffective where counsel advised the

defendant to plead guilty to state charges to avoid referral to federal prosecutor).

       Because we find no breach of an essential duty, we need not consider the

prejudice element of Ortiz’s claim. See Dempsey v. State, 860 N.W.2d 860, 868

(Iowa 2015) (“If we conclude a claimant has failed to establish either of these

elements, we need not address the remaining element.”).

                                         III.

       For the foregoing reasons, we reverse the judgment of the district court

granting Ortiz’s application for postconviction relief and remand for further

proceedings.

       REVERSED AND REMANDED.
