                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1956
                             Filed January 23, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARIEO EQUANNE TILLMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler (motion to suppress) and Joel A. Dalrymple (trial and sentencing), Judges.



      Defendant appeals his conviction for possession of marijuana with intent to

deliver. CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Stephan J.

Japuntich, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.

       Darieo Tillman appeals his conviction for possession of marijuana with

intent to deliver. We affirm the district court’s decision finding the officer’s actions

after stopping the pickup in which Tillman was a passenger were objectively

reasonable and denying the motion to suppress. We determine Tillman’s claim of

ineffective assistance of counsel should be preserved for possible postconviction

proceedings. We vacate the restitution portion of the sentencing order and remand

the case to the district court.

       I.      Background Facts & Proceedings

       Shortly after midnight on May 21, 2017, Officer Keaton Northrup of the

Waterloo Police Department was on patrol when he observed an approaching

green Chevrolet pickup that did not have a front license plate. Officer Northrup

turned around and came up behind the pickup and did not see a rear license plate.

He turned on his emergency lights and stopped the pickup. The pickup stopped

in a driveway, and Officer Northrup stopped in the street so his vehicle was

perpendicular to the pickup. The pickup had a temporary dealer’s license in the

rear window.

       As Officer Northrup was getting out of his car, the passenger in the pickup,

later identified as Tillman, got out of the pickup. Officer Northrup instructed Tillman

to get back into the pickup. Tillman attempted to leave again and Officer Northrup

told him to sit down. Officer Northrup approached the passenger window, where

he saw Tillman “digging around in between the center console and the passenger

seat.” Tillman then pushed Officer Northrup out of the way and fled with the officer

in pursuit. Officer Northrup saw Tillman throw something as he ran. Following a
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foot chase, Tillman was apprehended and placed in handcuffs. Officers found a

baggie of marijuana and a digital scale in the area where Tillman threw something.

As Tillman was being placed into a patrol car, an officer asked, “So what’s going

on?” and Tillman stated, “Weed, man.”

      Tillman was charged with possession of marijuana with intent to deliver, in

violation of Iowa Code section 124.401(1)(d) (2017). He filed a motion to suppress,

claiming the officer should have immediately seen the temporary dealer’s license

and ended the encounter. Officer Northrup testified that after he stopped the

pickup his attention was primarily drawn to the passenger because he tried to exit

the vehicle twice. He stated he did not see the temporary dealer’s license until he

returned from chasing Tillman.

      The district court denied the motion to suppress. The court said:

      The court finds that it was 14 minutes past midnight and dark and
      that it was objectively reasonable that the officer under the
      circumstances, especially given that defendant attempted not once,
      but twice to leave the scene, that the officer could easily have missed
      what was there to be seen. Further, when defendant attempted to
      leave, that provided additional justification for the stopping of
      defendant.
             The court finds that the stopping, although [it] was in error,
      was nonetheless objectively reasonable under the circumstances.

      A jury found Tillman guilty of possession of marijuana with intent to deliver.

Tillman filed a motion for new trial. The court found the jury’s verdict was not

contrary to the weight of the evidence and denied the motion.          Tillman was

sentenced to a term of imprisonment not to exceed ten years. He was ordered to

pay court costs, a $125 Law Enforcement Initiative surcharge, and a $10 DARE
                                         4


surcharge.1 The court determined Tillman did not have the reasonable financial

ability to pay any amount toward his trial or appellate attorney fees. Tillman now

appeals.

        II.    Motion to Suppress

        Tillman claims the district court erred by denying his motion to suppress.

He asserts the officer should have seen the temporary license in the back window

of the pickup and realized there was no valid reason for the stop. He states the

officer should not have continued with the traffic stop. Tillman claims his rights

under the Fourth Amendment to the United States Constitution and Article I,

section 8 of the Iowa Constitution were violated. We review de novo a district

court’s ruling on a motion to suppress based on constitutional grounds. State v.

Salcedo, 935 N.W.2d 572, 577 (Iowa 2019).

        A factual situation similar to that in the present case is found in State v.

Lloyd, 701 N.W.2d 678, 681 (Iowa 2005), where the officer stopping a vehicle did

not see the temporary license plate taped to the car’s rear window. The Iowa

Supreme Court stated, “The only remaining question is whether [the officer’s]

mistake was an objectively reasonable one.” Lloyd, 701 N.W.2d at 681. The court

found the officer’s factual mistake was objectively reasonable, noting the stop was

made at 2:20 a.m., when it was dark. Id. at 681–82. The court concluded the

officer’s “decision to stop Lloyd’s car was justified and reasonable and therefore

did not violate Lloyd’s Fourth Amendment rights.” Id. at 682. Based on Lloyd, the




1   The court suspended a $750 fine for the offense.
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officer could reasonably stop the green Chevrolet pickup to determine whether the

vehicle had a valid license plate. See id.

       Tillman contends the officer improperly prolonged the stop by failing to

immediately determine the vehicle had a temporary license plate. He relies upon

State v. Coleman, 890 N.W.2d 284, 285 (Iowa 2017), where an officer stopped a

vehicle because the registered owner of the vehicle, a female, had a suspended

driver’s license. On approaching the vehicle, the officer saw the driver was male.

Coleman, 890 N.W.2d at 285. Although the reason for the stop was resolved, as

the driver was not the person the officer suspected of driving without a license, the

officer asked the driver for his driver’s license, registration, and insurance. Id. The

Iowa Supreme Court determined an officer may not extend a traffic stop when the

underlying reason for the stop was satisfied. Id. at 300. The court noted there

may a different result based on specific claims related to officer safety. Id. at 301.

The court concluded the defendant’s motion to suppress should have been

granted. Id.

       The State asserts Officer Northrup had legitimate concerns about his safety

that required him to interact with Tillman prior to investigating whether the vehicle

had a temporary license. “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.” Rodriguez v. United States, 575 U.S. 348,

356 (2015) (citation omitted). The Iowa Supreme Court stated, “the courts have

repeatedly rejected generalized, unsubstantiated claims related to officer safety as

a basis for extending a traffic stop.” Coleman, 890 N.W.2d at 301.
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       At the suppression hearing, Officer Northrup testified, “As I exited my patrol

vehicle, the front passenger opened the passenger door and attempted to walk

away.” Officer Northrup told the passenger, Tillman, to get back into the vehicle.

Tillman “then tried to exit the vehicle again, and [the officer] instructed him to close

the door and sit down.” Officer Northrup called to request assistance from another

officer. He stated his attention was drawn to Tillman due to concerns of officer

safety and he was not concerned about the temporary license at that time. Officer

Northrup approached the passenger side of the vehicle and saw Tillman “digging

around between the seat and center console.” Tillman engaged in a brief struggle

with Officer Northrup and then ran.

       This case does not involve a “generalized, unsubstantiated claim[ ] related

to officer safety as a basis for extending a traffic stop.” See id. Tillman was out of

the pickup by the time the officer stopped his vehicle. After Officer Northrup told

Tillman to return to the pickup, Tillman got out again. Tillman’s unwillingness to

listen to the officer’s directives and failure to remain in the pickup increased the

risk of danger to the officer. See State v. Finch, No. 02-1148, 2003 WL 22828750,

at *4 (Iowa Ct. App. Nov. 26, 2003) (“[W]hen a passenger immediately exits a

lawfully stopped vehicle an officer may instruct the passenger to return to the

vehicle.   The public interest in officer safety outweighs the potential minimal

intrusion on a passenger’s liberty interest in such a situation.”). After the vehicle

was stopped, it was objectively reasonable for the officer’s attention to be directed

to Tillman, rather than an investigation of whether the vehicle had a temporary

license.
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      We affirm the district court’s decision finding the officer’s actions were

objectively reasonable and denying the motion to suppress.

      III.    Ineffective Assistance

      Tillman claims he received ineffective assistance because defense counsel

did not seek to suppress his statement, “Weed, man,” in response to an officer’s

question, “So what’s going on?”        Tillman asserts the statement should be

suppressed because he was not informed of his Miranda rights prior to the officer’s

question.    Tillman states he was in custody at the time because he was in

handcuffs and was being taken to a patrol car.

      We conduct a de novo review of claims of ineffective assistance of counsel.2

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to

perform an essential duty and (2) prejudice resulted to the extent it denied the

defendant a fair trial. Id. A defendant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. See

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

      “Statements made by a suspect during a custodial interrogation are

inadmissible unless a suspect is specifically warned of his or her Miranda rights



2 We recognize Iowa Code section 814.7 was recently amended to provide in
pertinent part: “An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch.
140, § 31. In State v. Macke, however, our supreme court held the amendment
“appl[ies] only prospectively and do[es] not apply to cases pending on July 1,
2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our supreme court’s
holding. We conclude, therefore, the amendment “do[es] not apply” to this case,
which was pending on July 1, 2019. Id.
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and freely decides to forgo those rights.” State v. Ortiz, 766 N.W.2d 244, 251 (Iowa

2009). “In determining whether a suspect is ‘in custody’ at a particular time, we

examine the extent of the restraints placed on the suspect during the interrogation

in light of whether ‘a reasonable man in the suspect’s position would have

understood his situation’ to be one of custody.” Id. (citation omitted). The use of

handcuffs is a restriction of a person’s freedom and is an indication a person is in

custody. State v. Deases, 518 N.W.2d 784, 789–90 (Iowa 1994).

       The State does not dispute Tillman’s claim he was in custody at the time he

made the statement. The State asserts there is no evidence in the record on the

issue of whether Tillman was informed of his Miranda rights prior to making the

statement. Because the issue was not raised in the motion to suppress, the

officers who interacted with Tillman at the time he made the statement were not

questioned about whether they informed Tillman of his Miranda rights.

       In general, claims of ineffective assistance of counsel are preserved for

postconviction proceedings. State v. Trane, 934 N.W.2d 447, 465 (Iowa 2019). A

claim of ineffective assistance may be decided on direct appeal only if the record

is adequate. State v. Haas, 903 N.W.2d 699, 703 (Iowa 2019). By preserving an

issue of ineffective assistance, the parties can develop an adequate record and

defense counsel will have an opportunity to respond to the claim. Id.

       The present record does not adequately address whether Tillman was

informed of his Miranda rights. Although the State claims the evidence was not

prejudicial, it was used as an admission to show the marijuana and scale found on

the ground belonged to Tillman and that he knew the substance was marijuana.
                                            9


We determine Tillman’s claim of ineffective assistance of counsel should be

preserved for possible postconviction proceedings.

       IV.    Restitution

       Tillman contends he was improperly ordered to pay restitution when the

court did not make a determination of his reasonable ability to pay. Specifically,

Tillman asserts that he was ordered to pay a DARE surcharge of $10.00, a Law

Enforcement Initiative Surcharge of $125.00, and court costs without an inquiry

into his reasonable ability to pay.

       Under section 910.2(1), restitution for fines, penalties, and surcharges is

payable “regardless of the offender’s reasonable ability to pay.” State v. Albright,

925 N.W.2d 144, 159 (Iowa 2019). The Law Enforcement Initiative surcharge of

$125 and the DARE surcharge of $10 are not subject to a determination of whether

Tillman had the reasonable ability to pay. See id. The district court did not err in

imposing the surcharges.

       A defendant is responsible to pay court costs, including correctional fees,

and court-appointed attorney fees “to the extent that the offender is reasonably

able to pay.” Iowa Code § 910.2(1). The court waived Tillman’s obligation to make

restitution for court-appointed attorney fees. Tillman was ordered to pay court

costs. The record does not reflect that the amount of court costs was known at the

time of the sentencing, and no determination of the reasonable ability to pay was

made with respect to court costs.

       “A plan of restitution is not complete until the court issues the final restitution

order.” Albright, 925 N.W.2d at 160. The Iowa Supreme Court stated:
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       Until the court issues the final restitution order, the court is not
       required to consider the offender’s reasonable ability to pay.
       Restitution orders entered by the court prior to the final order are not
       appealable as final orders or enforceable against the offender. The
       reason for these orders being nonappealable or enforceable is that
       the final order of restitution must take into account the offender’s
       reasonable ability to pay.

Id. at 160–61 (citations omitted).

       It is unclear from the record whether the district court intended the

sentencing order to be considered the “final restitution order.” If so, a reasonable

ability to pay determination was not made with respect to payment of court costs

by Tillman. Accordingly, we vacate the restitution portion of the sentencing order

and remand the case to the district court for entry of a final restitution order in

accordance with Albright. See id. at 162–63.

       CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.
