                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0317
                              Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMAL JAMES CLARK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Lucy J. Gamon,

Judge.



      A criminal defendant appeals his convictions for delivery of marijuana and

possession of marijuana with intent to deliver. AFFIRMED.



      Steven E. Goodlow, Albia, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

      Jamal James Clark appeals his convictions for delivery of marijuana and

possession of marijuana with intent to deliver. Specifically, he argues his Fourth

Amendment rights were violated because the evidence used by the State to

secure his convictions was obtained with a search warrant that was not

supported by probable cause. He also argues his counsel was ineffective. We

find Clark did not preserve his Fourth Amendment argument for appellate review

and the record is not adequate to decide his ineffective-assistance claim on

direct appeal. We therefore affirm.

I. Background Facts and Proceedings

      On October 2, 2013, Oskaloosa Police Officer Justin Rice accompanied

an Iowa Department of Human Services (DHS) worker to a second-floor

apartment in a multi-unit building.    The DHS worker was investigating an

allegation that drugs were being used in the apartment with children present, and

Officer Rice was assisting by ensuring the worker’s safety.      The door to the

second-floor apartment was located inside of a shared stairwell. While the DHS

worker stood at the doorway to the second-floor apartment and spoke with the

resident who answered the door, Officer Rice waited on the stairs behind her.

      As Officer Rice waited on the stairs, he saw a man enter the building and

knock on the door to the first-floor apartment.      Officer Rice then heard a

response from inside the first-floor unit and watched the man go inside. Officer

Rice recognized the man from prior involvement with the police. A couple of

minutes later, after the DHS worker was finished speaking with the resident of

the second-floor apartment, Officer Rice descended the stairs and passed by the
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first-floor apartment on his way out of the building. As he did so, he noticed a

strong and distinct odor of burnt marijuana emanating from the first-floor

apartment.

      Based upon his experience with narcotics investigations, Officer Rice

opted to leave the building and obtain a search warrant for the first-floor

apartment. The search warrant was approved by a judge and executed a couple

of days later. Clark and one other man were present in the apartment when the

search warrant was executed.     Based upon a number of items found in the

apartment during the execution of the search warrant—more than $2000 cash,

receipts documenting a $1300 bank deposit and $1825 money transfer, two large

vacuum-sealed bags and other packaging consistent with marijuana sales,

marijuana residue inside the bags and in other locations, multiple cell phones,

and envelopes with handwritten notations which appeared to be records of drug

sales—Clark was charged with one count of delivery of marijuana and one count

of possession of marijuana with intent to deliver. The other man present was not

charged.

      Clark’s case proceeded to trial on August 12, 2014. A jury found Clark

guilty of both crimes on August 13, 2014. On February 2, 2015, Clark was

sentenced to a term of imprisonment not to exceed five years. The sentence

was suspended, and he was placed on probation.

      Clark now appeals.

II. Standard of Review

      We review claims that the district court failed to suppress evidence

obtained in violation of the Federal and Iowa Constitutions de novo. State v.
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Short, 851 N.W.2d 474, 478 (Iowa 2014). We also review claims of ineffective

assistance of counsel de novo but only after we determine that the record is

adequate to decide the claim on direct appeal. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006).

III. Analysis

    A. Warrant Not Based Upon Probable Cause

       Clark first argues his Fourth Amendment rights were violated when his

apartment was searched using a warrant unsupported by probable cause. 1

According to Clark, the facts used to secure the search warrant—Officer Rice

saw a man enter the first-floor apartment and then smelled burnt marijuana—

were insufficient to supply probable cause for the proposition drugs were being

sold out of the unit.

       Clark has not preserved his argument by first raising it before the district

court below. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”).

In this case, Clark should have raised his argument before the district court prior

to his criminal trial as a motion to suppress evidence. See Iowa Rs. Crim. P.

2.12(1)(d) (listing as one ground for a motion to suppress evidence the allegation

“[t]here was not probable cause for believing the existence of the grounds on

which the warrant was issued”), 2.11(2)(c) (listing “[m]otions to suppress


1
  The heading of this section of Clark’s brief suggests he is also making a second
argument that his conviction is not supported by the evidence. However, Clark has
provided no actual discussion or authority for this second argument; so we do not
consider it. See Iowa R. App. P. 6.903(2)(g)(3).
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evidence on the ground that it was illegally obtained including, but not limited to,

motions on any ground listed in rule 2.12” among those motions which “must be

raised prior to trial”). Because he did not file a motion to suppress evidence in

anticipation of his criminal trial, he has not preserved error on this argument for

appellate review.

   B. Ineffective Assistance of Counsel

       Second, Clark argues his counsel was constitutionally ineffective for failing

to “object to constitutional issues or question the authenticity of the prosecution’s

exhibits presented throughout the prosecution’s case in chief.” He stresses that

his ineffective-assistance-of-counsel claim “arises from the failure of his attorney

to object to multiple constitutional issues that arose during the presentation of

evidence at trial. These issues occurred in regard to the Fourth Amendment

grounds upon which the evidence was obtained.”

       In order to prevail on his claim of ineffective assistance of counsel, Clark

must establish both that “(1) his trial counsel failed to perform an essential duty,

and (2) this failure resulted in prejudice.” Straw, 709 N.W. 2d at 133 (citing

Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). Both elements must be

proved by a preponderance of the evidence. Id. With respect to the first prong,

“we begin with the presumption that the attorney performed competently” and

“avoid second-guessing and hindsight.” Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001). Attorney action (or inaction) caused by improvident trial strategy,

miscalculated tactics, or mistakes in judgment does not necessarily amount to

ineffective assistance of counsel. See State v. Ondayog, 722 N.W.2d 778, 786

(Iowa 2006). Furthermore, because tactical decisions by counsel must be judged
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within the context of the totality of the circumstances on a case-by-case basis, it

is often necessary to preserve such allegations for postconviction proceedings so

that the record can be more fully developed. Id.; see also Iowa Code § 814.7(3)

(2013) (“If an ineffective assistance of counsel claim is raised on direct appeal

from the criminal proceedings, the court may decide the record is adequate to

decide the claim or may choose to preserve the claim for [postconviction

proceedings].”).

      We find the record before us is not sufficient to address Clark’s claim of

ineffective assistance of counsel. We do not have the disputed search warrant

nor the application presented to the court in the record before us. We also do not

have the benefit of any testimony or evidence as to why Clark’s attorney neither

filed a motion to suppress evidence in anticipation of trial nor objected to the

evidence when it was presented at trial.           We preserve the claim for

postconviction proceedings so that the search warrant materials may be made a

part of the record and Clark’s attorney may be given the opportunity to explain

himself.

      AFFIRMED.
