               IN THE SUPREME COURT OF IOWA
                              No. 08–1762

                        Filed November 19, 2010


STATE OF IOWA,

      Appellee,

vs.

ROBERT JOSEPH VANCE,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

George L. Stigler, Judge.



      The defendant appeals his convictions for possession of precursor

products with the intent to manufacture methamphetamine and driving

while license barred.       DECISION OF COURT OF APPEALS AND

JUDGMENT OF DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Thomas J. Gaul,

Assistant Appellate Defender, for appellant.



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

Attorney General, Thomas J. Ferguson, County Attorney, and Brad P.

Walz, Assistant County Attorney, for appellee.
                                    2

WIGGINS, Justice.

      The defendant, Robert Joseph Vance, appeals his convictions for

possession of precursor products with the intent to manufacture

methamphetamine and driving while license barred.           The court of

appeals affirmed his convictions and preserved his ineffective-assistance-

of-counsel claim for possible postconviction relief proceedings.       The

defendant applied for further review, which we granted. In our review,

we find there was reasonable suspicion to initiate an investigatory stop of

the vehicle the defendant was driving and substantial evidence supports
his conviction for possession of a precursor product with the intent to

manufacture methamphetamine.        We also find we cannot decide the

defendant‘s ineffective-assistance-of-counsel claim on direct appeal and

preserve this claim for possible postconviction relief proceedings.

Accordingly, we affirm the decision of the court of appeals and the

judgment of the district court.

      I. Background Facts and Proceedings.

      At approximately 2:20 a.m. on July 11, 2008, Waterloo police

officer Nicholas Berry was patrolling the South View Estates area of

Waterloo in a marked patrol car. While patrolling the area, Berry passed

an oddly parked red Pontiac Grand Prix on Bristol Road.        He ran the

license plate number of the vehicle on his in-car computer and

discovered the registered owner of the vehicle was a female named

Athena Smith. Berry then verified the status of Smith‘s driver‘s license

and learned her license was suspended.

      After doing this, Berry remembered he had stopped the vehicle on

December 13, 2007. On that occasion, Smith was operating the vehicle,
and following a search of the vehicle, methamphetamine was found. He

also remembered witnessing another officer stop the same vehicle on
                                    3

June 2, 2008.      The officer later informed him that Smith had been

operating the vehicle and a male named Robert Vance was a passenger.

Berry also learned the State charged Smith with driving while license

suspended and possession of methamphetamine in relation to the later

stop.

        Berry left the area and parked his patrol car on Highway 218,

north of the vehicle‘s location. Approximately fifteen minutes later, he

observed the vehicle turn northbound on Highway 218 and drive past

him.    Berry was unable to see who was operating the vehicle or the
number of its occupants. He decided to follow the vehicle and caught up

to it as it was heading northbound. Just as Berry caught up with the

vehicle, it began to exit onto Interstate 380 towards Evansdale. When

the vehicle began to exit, Berry initiated a traffic stop, and the vehicle

slowed to a stop on the off-ramp of Highway 218. Berry admitted the

driver of the vehicle was not driving in a suspicious manner at the time

he initiated the stop. When he initiated the stop, he did not know who

was driving the vehicle.

        As Berry exited his patrol car and approached the vehicle, he was

able to observe for the first time that the vehicle‘s only occupant was a

male driver. Berry recognized the driver but could not recall his name.

He made contact with the driver and requested a driver‘s license and

proof of insurance.    The driver told Berry he did not have a driver‘s

license and handed him an Iowa nondriver‘s identification card,

identifying himself as Robert Joseph Vance. Vance also said he did not

know if there was an insurance card in the vehicle because he did not

own it. At this point, Berry remembered the connection between Vance
and Smith. Specifically, Berry remembered Vance was a passenger in

Smith‘s vehicle when he observed another officer stop the vehicle on
                                     4

June 2. He also remembered Vance did not have a valid driver‘s license

at that time.

      Berry returned to his patrol car with Vance‘s identification card

and discovered Vance‘s driver‘s license status was barred. He returned

to the vehicle, informed Vance his license was invalid, and asked him to

step out of the vehicle and walk to the front of his patrol car. Next, he

asked Vance if he had anything illegal in his pockets. Vance removed an

insulin needle, a wooden cooking spoon, and a metal spoon with burn

marks from his pockets. There was a white, powdery substance on both
the wood and metal spoons. Vance began to appear nervous, and Berry

placed him in the back of his patrol car.

      Subsequently, Berry returned to the vehicle and, looking through

the front driver‘s side window, observed what appeared to be freshly

manufactured methamphetamine in a cellophane wrapper.             As he

reached into the vehicle to remove the wrapper, he immediately noticed a

strong chemical odor.    Berry continued to inspect the vehicle visually

until another officer arrived on the scene, at which point he handcuffed

Vance and read the Miranda warning. While handcuffing Vance, Berry

noticed he had a cellular phone earpiece in his ear and discovered his

cellular phone had been on during the duration of the stop. Immediately

after Vance was initially placed in the patrol car, the car‘s audio

equipment captured Vance saying, ―He is going to find the shit,‖ to

someone on the phone.

      The Tri-County Drug Task Force was contacted, and Berry was

asked to look in the trunk of the vehicle for a tank that could hold

anhydrous ammonia.       Berry opened the trunk and observed an air-
compressor tank that likely contained anhydrous ammonia.         Shortly

thereafter, two members of the task force arrived and took over the
                                      5

search of the vehicle. Throughout the passenger compartment and trunk

of the vehicle the officers discovered numerous products associated with

the manufacture of methamphetamine, including: a plastic pitcher with

white residue, muriatic acid, saw blades, plastic tubing placed through a

cap, a coffee grinder with reddish/white residue, coffee filters, a

toothbrush, pliers and vice grip tools, stripped lithium batteries,

canisters of Coleman fuel, orange tubing, insulin syringes, a large air-

compressor tank filled with anhydrous ammonia, and a recent receipt for

cold medicine that contained pseudoephedrine. The Iowa Department of
Criminal Investigation later confirmed the wrapper, the metal spoon with

burn marks and white residue, and the plastic pitcher with white residue

all contained methamphetamine.

        The State charged Vance with possession of ephedrine and/or

pseudoephedrine, lithium, and anhydrous ammonia with the intent to

manufacture a controlled substance, as well as driving while license

barred. The State also sought to enhance Vance‘s sentencing pursuant

to Iowa Code sections 124.411, 902.8, and 902.9 (2007) due to his status

as a second and habitual offender.

        Vance filed a motion to suppress evidence, claiming the State

illegally seized evidence from the vehicle because Berry did not have

reasonable suspicion to stop the vehicle he was operating. The district

court    overruled   the   motion,   finding   under   the   totality   of   the

circumstances it was reasonable for Berry to infer that Smith—the

registered owner whom Berry knew had a suspended license—was

operating the vehicle. Accordingly, the case proceeded to trial.

        The jury returned a verdict finding Vance guilty of possession of
ephedrine and/or pseudoephedrine          and    possession of     anhydrous

ammonia with the intent to manufacture methamphetamine as well as
                                     6

driving while license barred. The jury returned a verdict of not guilty on

the charge of possession of lithium with the intent to manufacture

methamphetamine. Vance appealed, arguing the district court erred in

overruling his motion to suppress evidence, there was insufficient

evidence for his conviction of possession of pseudoephedrine with the

intent to manufacture methamphetamine, and his trial counsel was

ineffective for failing to challenge the search of the vehicle.         We

transferred the case to the court of appeals.       The court of appeals

affirmed Vance‘s convictions and preserved his ineffective-assistance-of-
counsel claim for possible postconviction relief proceedings.        Vance

sought further review, which we granted.

      II. Issues.

      In this appeal, Vance raises three issues. First, we must determine

whether there was reasonable suspicion to stop the vehicle Vance was

driving.   Next, we must decide whether substantial evidence supports

Vance‘s conviction for possession of pseudoephedrine with the intent to

manufacture methamphetamine.         Finally, we must consider whether

Vance‘s trial counsel was ineffective for failing to challenge the search of

the vehicle.

      III. Legality of the Investigatory Stop.

      A. Scope of Review. Vance claims the investigatory stop of the

vehicle he was operating violated his Fourth Amendment right to be free

from ―unreasonable searches and seizures.‖ U.S. Const. amend. IV. We

review constitutional issues de novo. State v. Freeman, 705 N.W.2d 293,

297 (Iowa 2005). In the district court and on appeal, Vance‘s counsel

failed to raise the legality of the stop under the Iowa Constitution. See
State v. Effler, 769 N.W.2d 880, 894–95 (Iowa) (Appel, J., concurring)

(discussing why counsel should raise and brief an independent analysis
                                       7

of a constitutional issue under the Iowa Constitution), cert. denied, ____

U.S. ____, 130 S. Ct. 1024, 175 L. Ed. 2d 627 (2009). For this reason, we

will limit our discussion regarding the legality of the stop to the Fourth

Amendment.

      We independently evaluate the totality of the circumstances found

in the record, including the evidence introduced at both the suppression

hearing and at trial.    State v. Bogan, 774 N.W.2d 676, 679–80 (Iowa

2009). We give deference to the district court‘s findings of fact due to its

ability to assess the credibility of the witnesses.   State v. Carter, 696
N.W.2d 31, 36 (Iowa 2005).         We are not, however, bound by those

findings. Id.

      B. Applicable Law. The Fourth Amendment to the United States

Constitution guarantees ―[t]he right of the people to be secure in their

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

seizures . . . .‖   U.S. Const. amend. IV.    This amendment was made

applicable to the states through the Due Process Clause of the

Fourteenth Amendment.          Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct.

1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961).

      Generally, unless an exception applies, a search or seizure must be

conducted pursuant to a warrant to be reasonable. State v. Kreps, 650

N.W.2d 636, 641 (Iowa 2002). One well-established exception allows an

officer to briefly stop an individual or vehicle for investigatory purposes

when the officer has a reasonable, articulable suspicion that a criminal

act has occurred, is occurring, or is about to occur. Illinois v. Wardlow,

528 U.S. 119, 123, 120 S. Ct. 673, 675, 145 L. Ed. 2d 570, 576 (2000);

State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997).           ―The principal
function of an investigatory stop is to resolve the ambiguity as to whether

criminal activity is afoot.‖    State v. Richardson, 501 N.W.2d 495, 497
                                     8

(Iowa 1993).     Accordingly, reasonable suspicion may support an

investigatory stop that ultimately reveals wholly lawful conduct. Id.

      For an investigatory stop to comply with the protections of the

Fourth Amendment, the State must prove by a preponderance of the

evidence the officer had specific and articulable facts that, taken together

with rational inferences from those facts, would lead the officer to

reasonably believe criminal activity is afoot. Terry v. Ohio, 392 U.S. 1,

21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); State v.

Heminover, 619 N.W.2d 353, 357–58 (Iowa 2000), abrogated on other
grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001).          A

mere hunch, unparticularized suspicion, or curiosity will not justify an

investigatory stop. Kreps, 650 N.W.2d at 641.

      Whether reasonable suspicion exists for an investigatory
      stop must be determined in light of the totality of the
      circumstances confronting a police officer, including all
      information available to the officer at the time the decision to
      stop is made. The circumstances under which the officer
      acted must be viewed ―through the eyes of a reasonable and
      cautious police officer on the scene, guided by his experience
      and training.‖

Id. at 642 (internal citations omitted) (quoting United States v. Hall, 525

F.2d 857, 859 (D.C. Cir. 1976)). If the State fails to carry its burden, all

evidence obtained from the investigatory stop must be suppressed.
Kinkead, 570 N.W.2d at 100.

      C. Analysis. Vance claims reasonable suspicion did not support

the investigatory stop of the vehicle because the stopping officer merely

knew the registered owner of the vehicle had a suspended driver‘s license

but had no information about the identity of the driver. Vance argues an

officer must obtain information indicating the driver of the vehicle is the
registered owner before reasonable suspicion for an investigatory stop

arises.
                                     9

      If Berry had an articulable and reasonable suspicion the driver of

the vehicle did not have a valid driver‘s license, he was entitled to stop

the vehicle and briefly detain the driver to investigate his or her driver‘s

license status. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391,

1401, 59 L. Ed. 2d 660, 673 (1979) (holding an officer must at least have

reasonable suspicion before stopping an automobile for the purpose of

checking the validity of the operator‘s license and registration).

Accordingly, we must determine when reasonable suspicion for an

investigatory stop of a vehicle arises upon an officer‘s discovery that the
registered owner of the vehicle has a suspended license.

      We hold an officer has reasonable suspicion to initiate an

investigatory stop of a vehicle to investigate whether the driver has a

valid driver‘s license when the officer knows the registered owner of the

vehicle has a suspended license, and the officer is unaware of any

evidence or circumstances indicating the registered owner is not the

driver of the vehicle.

      We reach this conclusion for a number of reasons.         First, it is

reasonable for an officer to infer the registered owner of the vehicle will

do the vast amount of the driving. See, e.g., Vill. of Lake in the Hills v.

Lloyd, 591 N.E.2d 524, 525–26 (Ill. App. Ct. 1992) (recognizing common

sense allows an officer to reasonably infer the owner of a vehicle is also

the driver); People v. Barnes, 505 N.E.2d 427, 428 (Ill. App. Ct. 1987)

(―While other people may drive an owner‘s vehicle, it is clear that the

owner will do the vast amount of driving.‖); Commonwealth v. Deramo,

762 N.E.2d 815, 818 (Mass. 2002) (finding the likelihood that a vehicle‘s

driver is its owner is strong enough to satisfy the reasonable-suspicion
standard).    Although this inference may be fallible, it is sufficiently

reasonable to generate reasonable suspicion for an investigatory stop to
                                     10

resolve the ambiguity as to whether criminal activity is afoot. State v.

Newer, 742 N.W.2d 923, 925 (Wis. Ct. App. 2007); see also Illinois v.

Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148,

159 (1990) (stating, in order to satisfy the reasonableness requirement of

the Fourth Amendment, officers need not always be correct, but must

always act reasonably).

      Second, to forbid the police from relying on such an inference to

form reasonable suspicion for an investigatory stop would seriously limit

an officer‘s ability to investigate suspension violations because there are
few, if any, additional steps the officer can utilize to establish the driver

of a vehicle is its registered owner. Barnes, 505 N.E.2d at 428. Vance

argues a stopping officer must verify the driver is the registered owner of

the vehicle before reasonable suspicion for an investigatory stop exists.

This proposed standard, however, places too heavy a burden on the

police. It would be impossible for an officer to verify that a driver of a

vehicle fits the description of the registered owner in heavy traffic, if the

vehicle has darkly tinted windows, or if the stop occurs at night, as was

the case here.    Armfield v. State, 918 N.E.2d 316, 322 (Ind. 2009).

Furthermore, the standard we adopt adequately protects against

suspicionless investigatory stops because:

      If an officer comes upon information suggesting that the
      assumption [that the driver is the owner] is not valid in a
      particular case, for example that the vehicle‘s driver appears
      to be much older, much younger, or of a different gender
      than the vehicle‘s registered owner, reasonable suspicion
      would, of course, dissipate. There would simply be no
      reason to think that the nonowner driver had a revoked [or
      suspended] license.

Newer, 742 N.W.2d at 926; accord People v. Jones, 678 N.W.2d 627, 631
n.4 (Mich. Ct. App. 2004); State v. Pike, 551 N.W.2d 919, 922 (Minn.

1996); State v. Howard, 766 N.E.2d 179, 183 (Ohio Ct. App. 2001).
                                     11

      Third, allowing a stopping officer to infer the registered owner is

the driver, absent any evidence to the contrary, ensures the safety of the

roadways and of law enforcement. As one court has recognized,

      requiring the officer to verify the driver of the vehicle strikes
      against basic principles of safety [because it] puts the onus
      on the officer to maneuver himself into a position to clearly
      observe the driver in the midst of traffic.

Armfield, 918 N.E.2d at 322 (internal quotation omitted).         Thus, the

verification requirement proposed by Vance would not only place the

stopping officer in danger but also the traveling public in general.

      Finally, we have reviewed cases from other jurisdictions that have

considered this issue, and a majority of those jurisdictions have adopted

the standard we approve today. Compare id. at 321–22 (holding officers

may stop a vehicle and investigate the license status of the driver based

on information that the owner has a suspended license so long as the

officer is unaware of any facts indicating the owner is not driving the

vehicle); State v. Tozier, 905 A.2d 836, 839 (Me. 2006) (same);

Commonwealth v. Garden, 883 N.E.2d 905, 909 (Mass. 2008) (same);

Jones, 678 N.W.2d at 631 (same); Pike, 551 N.W.2d at 922 (same); City of

Billings v. Costa, 140 P.3d 1070, 1073–74 (Mont. 2006) (same); State v.
Richter, 765 A.2d 687, 689 (N.H. 2000) (same); Howard, 766 N.E.2d at

183 (same); State v. Panko, 788 P.2d 1026, 1027 (Or. Ct. App. 1990)

(same); Newer, 742 N.W.2d at 925–26 (same), with State v. Parks, 672

A.2d 742, 745 (N.J. Super. Ct. App. Div. 1996) (requiring additional

evidence of the owner‘s identity as the driver of the vehicle before

reasonable suspicion for an investigatory stop arises).        We find the

rationale for the majority position as expressed in these cases most
persuasive.
                                           12

       In this case, Berry ran the license plate of the vehicle on his in-car

computer and discovered the registered owner of the vehicle, Athena

Smith, had a suspended license.               Subsequently, Berry observed the

vehicle drive past him, and he initiated a traffic stop to investigate

whether the registered owner was the driver. At the time he initiated the

stop, Berry was unable to observe the sex or the identity of the driver.

Thus, at the time of the investigatory stop, Berry was unaware of any

evidence or circumstances rendering his inference that the owner of the

vehicle was also the driver, unreasonable.                Accordingly, the court of
appeals and the district court were correct in holding the stopping officer

had reasonable suspicion to initiate an investigatory stop of the vehicle

Vance was operating.1




        1Although the investigatory stop was initially supported by reasonable suspicion,

Vance‘s counsel failed to raise in the district court or on appeal whether the stop
continued to be valid upon the stopping officer‘s discovery that the driver of the vehicle
was, in fact, not the registered owner. See, e.g., Florida v. Royer, 460 U.S. 491, 500,
103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229, 238 (1983) (plurality opinion) (recognizing the
scope of an investigatory stop must be carefully tailored to its underlying justification
and last no longer than necessary to effectuate the purpose of the stop); Terry v. Ohio,
392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968) (requiring an
investigatory stop to be ―reasonably related in scope to the circumstances which
justified the interference in the first place‖). A number of jurisdictions have invalidated
the further detention or investigation of a suspect after the initial purpose of an
investigatory stop has been resolved. See, e.g., United States v. Valadez, 267 F.3d 395,
398–99 (5th Cir. 2001) (holding where an officer properly initiated a stop to investigate a
motor-vehicle law violation and learned no violation had occurred, the purpose of the
investigatory stop was satisfied and any further detention or investigation violated the
Fourth Amendment); United States v. McSwain, 29 F.3d 558, 561–62 (10th Cir. 1994)
(same); People v. Redinger, 906 P.2d 81, 85–86 (Colo. 1995) (same); State v. Diaz, 850
So. 2d 435, 439–40 (Fla. 2003) (same); State v. Silva, 979 P.2d 1106, 1107 (Haw. 1999)
(same); Holly v. State, 918 N.E.2d 323, 325–26 (Ind. 2009) (same); State v. Kaufman, 59
P.3d 1166, 1172 (Mont. 2002) (same); State v. Chatton, 463 N.E.2d 1237, 1240–41
(Ohio 1984) (per curiam) (same); McGaughey v. State, 37 P.3d 130, 140–41 (Okla. Crim.
App. 2001) (same); State v. Farley, 775 P.2d 835, 836 (Or. 1989) (same); State v.
Penfield, 22 P.3d 293, 295–96 (Wash. Ct. App. 2001) (same); 4 Wayne R. LaFave, Search
and Seizure §§ 9.2(f), .3(c), at 335, 379–80 n.95 (4th ed. 2004) (same). Accordingly, we
express no opinion on the merits of this issue because it has not been preserved for our
appellate review.
                                          13

           IV. Insufficient-Evidence Claim.

           A. Standard of Review. Vance complains there was not sufficient

evidence to support his conviction for possession of ephedrine and/or

pseudoephedrine with the intent to manufacture methamphetamine. We

review sufficiency-of-the-evidence challenges for correction of errors at

law. State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). We will sustain

the jury‘s verdict if it is supported by substantial evidence.                 State v.

Acevedo, 705 N.W.2d 1, 3 (Iowa 2005).                ―Evidence is substantial if it

would convince a rational trier of fact the defendant is guilty beyond a
reasonable doubt.‖        State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa

2008).

           B. Analysis. Vance argues there was insufficient evidence as a

matter of law to prove he possessed pseudoephedrine with the intent to

manufacture methamphetamine. In order to prove unlawful possession

of     a     precursor    product       with   the        intent   to    manufacture

methamphetamine, the State must prove beyond a reasonable doubt:

(1) the person exercised dominion and control over the precursor

product, (2) the person had knowledge of the precursor product‘s

presence and nature, and (3) the person possessed the precursor product

with       the   intent   that    the   product      be     used   to    manufacture

methamphetamine.           Iowa Code § 124.401(4); State v. Maxwell, 743

N.W.2d 185, 193 (Iowa 2008).

           ―In the realm of controlled substance prosecutions, possession can

be either actual or constructive.‖ State v. Cashen, 666 N.W.2d 566, 569

(Iowa       2003).    Actual     possession    may     be    shown      by   direct   or

circumstantial evidence. State v. Reeves, 209 N.W.2d 18, 21–22 (Iowa
1973). A person has actual possession of a precursor product when the

product is found on the person. Maxwell, 743 N.W.2d at 193. Although
                                      14

the pseudoephedrine was not found on Vance‘s person at the time of the

stop, substantial evidence supports the jury‘s finding that at one time

Vance had actual possession of the pseudoephedrine with the intent to

manufacture methamphetamine.

        The record contains circumstantial evidence to support the jury‘s

finding that at one time Vance actually possessed the 2.4 grams of

pseudoephedrine listed in the CVS Pharmacy receipt, which was

discovered in the vehicle.     CVS Pharmacy‘s records show on July 10,

2008,     at   approximately   6:19   p.m.,    CVS    sold   2.4   grams      of
pseudoephedrine to an individual who produced Vance‘s identification

card. Approximately eight hours later, Berry stopped the vehicle Vance

was operating. At that time, Vance was the only person in the vehicle,

and he had his identification card with him. On the front driver‘s side of

the vehicle, an officer discovered a July 10, 2008, CVS receipt for twelve-

hour cold medicine containing 2.4 grams of pseudoephedrine and time

stamped at 6:19 p.m., matching CVS‘s records. Officers found a coffee

grinder with reddish/white residue in the backseat that was consistent

with grinding pseudoephedrine pills. In the front of the vehicle, in plain

view of Vance, recently manufactured methamphetamine was discovered

in a cellophane wrapper. Finally, Vance began to appear nervous after

he removed two spoons and an insulin needle from his pockets and later

stated, ―He is going to find the shit,‖ after being placed in a patrol car.

        Based upon this evidence, a jury could reasonably infer Vance had

actual possession of the pseudoephedrine pills because it could find he

purchased the pills from CVS and either he, or someone else, used the

pills to manufacture the methamphetamine found in the front portion of
the vehicle. Thus, we conclude this evidence could convince a rational
                                      15

trier of fact beyond a reasonable doubt that Vance possessed 2.4 grams

of pseudoephedrine.

      We also conclude substantial evidence supports the finding Vance

possessed    the    pseudoephedrine    with   the   intent   it   be   used   to

manufacture methamphetamine. A person intends a precursor product

to be used to manufacture methamphetamine so long as the person

directly or indirectly intends to engage in the manufacturing process.

See State v. Truesdell, 679 N.W.2d 611, 617–18 (Iowa 2004) (construing

the legislature‘s 2004 amendment of the intent element of Iowa Code
section 124.401(4)); State v. Milom, 744 N.W.2d 117, 122 (Iowa Ct. App.

2007) (same). Vance‘s admission, the proximity in time from when Vance

initially purchased the pseudoephedrine to the time he was stopped, the

presence of freshly produced methamphetamine in the vehicle, the coffee

grinder with pseudoephedrine-pill residue, and the numerous items

associated with the manufacture of methamphetamine discovered in the

vehicle all could lead a jury to reasonably infer Vance possessed the

pseudoephedrine with the intent the product be used to manufacture

methamphetamine.

      Thus, the court of appeals correctly affirmed Vance‘s conviction for

possession   of    pseudoephedrine    with    the   intent   to   manufacture

methamphetamine because substantial evidence supported the jury‘s

verdict.

      V. Ineffective-Assistance-of-Counsel Claim.

      A. Standard of Review. Ineffective-assistance-of-counsel claims

have their basis in the Sixth Amendment to the United States

Constitution.      State v. Lyman, 776 N.W.2d 865, 877 (Iowa 2010).
Normally, ineffective-assistance-of-counsel claims are considered in

postconviction relief proceedings. State v. Graves, 668 N.W.2d 860, 869
                                        16

(Iowa 2003). However, if the record is sufficient to address a claim of

ineffective assistance of counsel, we will consider such a claim on direct

appeal. Id.

       B. Ineffective-Assistance-of-Counsel Standard. To establish an

ineffective-assistance-of-counsel claim, a defendant must prove by a

preponderance of the evidence: (1) his trial counsel failed to perform an

essential duty, and (2) prejudice resulted. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984);

State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).
       C. Whether Trial Counsel Failed to Perform an Essential Duty.

       1.    General principles.    To establish his trial counsel failed to

perform an essential duty, Vance must prove his counsel ―made errors so

serious that counsel was not functioning as the ‗counsel‘ guaranteed the

defendant by the Sixth Amendment.‖ Strickland, 466 U.S. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693. We begin with a presumption that

counsel performed his or her duties competently. Dudley, 766 N.W.2d at

620.        ―Trial   counsel‘s   performance   is    measured   objectively   by

determining      whether    counsel‘s   assistance    was   reasonable,   under

prevailing professional norms, considering all the circumstances.‖

Lyman, 776 N.W.2d at 878. The Supreme Court indicates the American

Bar Association standards and like documents reflect the prevailing

norms of practice. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80

L. Ed. 2d at 694. The ABA Standards for Criminal Justice require:

              (e) Defense counsel, in common with all members of
       the bar, is subject to standards of conduct stated in statutes,
       rules, decisions of courts, and codes, canons, or other
       standards of professional conduct. Defense counsel has no
       duty to execute any directive of the accused which does not
       comport with law or such standards. Defense counsel is the
       professional representative of the accused, not the accused‘s
       alter ego.
                                       17

ABA Standards for Criminal Justice: Prosecution Function and Defense

Function 4-1.2(e), at 120–21 (3d ed. 1993). The comments to the ABA

standards state:

            Advocacy is not for the timid, the meek, or the retiring.
      Our system of justice is inherently contentious, albeit
      bounded by the rules of professional ethics and decorum,
      and it demands that the lawyer be inclined toward vigorous
      advocacy.     Nor can a lawyer be half-hearted in the
      application of his or her energies to a case. Once a case has
      been undertaken, a lawyer is obliged not to omit any
      essential lawful and ethical step in the defense, without
      regard    to   compensation      or   the    nature   of    the
      appointment. . . .

            Because the law is a learned profession, lawyers must
      take pains to guarantee that their training is adequate and
      their knowledge up-to-date in order to fulfill their duty as
      advocates.

Id. cmt., at 122–23 (footnote omitted).

      In our own analysis of whether counsel was ineffective, we have

relied on our Code of Professional Responsibility for Lawyers to measure

counsel‘s performance.     State v. Schoelerman, 315 N.W.2d 67, 71–72

(Iowa 1982).    At the time of Vance‘s representation, the Iowa Rules of

Professional Conduct governed a lawyer‘s conduct.            The rules provide

that ―[a] lawyer shall provide competent representation to a client.

Competent      representation   requires       the   legal   knowledge,    skill,
thoroughness,      and   preparation        reasonably   necessary   for     the

representation.‖ Iowa R. Prof‘l Conduct 32:1.1. As a comment to this

rule points out, ―[s]ome important legal skills, such as the analysis of

precedent, the evaluation of evidence, and legal drafting, are required in

all legal problems.‖ Id. cmt. [2]. In the final analysis,

      As long as the requisite competence to handle the matter
      may be attained through reasonable preparation and study,
      the lawyer ethically may undertake the representation. The
      measuring rod of competence is that of the reasonably able
      and effective attorney, with general professional education
                                     18
      and experience, who diligently devotes him or herself to
      scholarly study of the governing legal principles and
      development of the practice skills necessary.

16 Gregory C. Sisk & Mark S. Cady, Iowa Practice Series: Lawyer and

Judicial Ethics § 5:1(b), at 140 (2007). We will use these principles to

determine if Vance‘s trial counsel failed to perform an essential duty.

      Vance claims his trial counsel was ineffective for failing to

challenge the search of the vehicle under the Iowa Constitution.

Specifically, he claims the search was an unlawful search incident to an

arrest for the same reasons the United States Supreme Court held such
a search was unlawful in Arizona v. Gant, ___ U.S. ___, ___, 129 S. Ct.

1710, 1719, 173 L. Ed. 2d 485, 496 (2009). Gant limited the holding of

New York v. Belton, 453 U.S. 454, 460–61, 101 S. Ct. 2860, 2864, 69

L. Ed. 2d 768, 775 (1981). Gant, ___ U.S. at ___, 129 S. Ct. at 1719, 173

L. Ed. 2d at 496.

      The State responds to Vance‘s claim of ineffective assistance of

counsel by arguing that in 1981 the Iowa Supreme Court adopted the

Belton rule as the proper analysis under the Iowa Constitution. State v.

Sanders, 312 N.W.2d 534, 539 (Iowa 1981). It also argues, because the

United States Supreme Court did not overturn the broad interpretation

of Belton until after Vance‘s conviction, Vance‘s attorney could not have

been ineffective for failing to question established law.

      2.   The Belton decision.      Under the Fourth Amendment, the

Supreme Court has long recognized the lawful custodial arrest of a

person justifies the contemporaneous search of the person arrested and

of the immediately surrounding area, meaning the area from which the

person might gain possession of a weapon or destructible evidence.
Chimel v. California, 395 U.S. 752, 762–63, 89 S. Ct. 2034, 2040, 23

L. Ed. 2d 685, 694 (1969). The Supreme Court created this exception to
                                   19

the warrant requirement to serve the dual purposes of protecting

arresting officers and safeguarding any evidence the arrestee may seek to

conceal or destroy. Id. We have stated, ―The search-incident-to-arrest

exception to the warrant requirement must be narrowly construed and

limited to accommodating only those interests it was created to serve.‖

State v. McGrane, 733 N.W.2d 671, 677 (Iowa 2007).

      Courts struggled to define the proper scope of a search of the

interior of an automobile incident to a lawful custodial arrest of its

occupant. Belton, 453 U.S. at 459, 101 S. Ct. at 2863, 69 L. Ed. 2d at
774. In Belton, the Supreme Court sought to remedy this problem by

holding, ―when a policeman has made a lawful custodial arrest of the

occupant of an automobile, he may, as a contemporaneous incident of

that arrest, search the passenger compartment of that automobile‖ as

well as any containers found within the passenger compartment. Id. at

460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775. In so holding, the Court

relied heavily on the generalization that articles within the passenger

compartment of a vehicle are generally, if not inevitably, within the

arrestee‘s grab area. Id.

      Although Belton did not alter the justifications for the search-

incident-to-arrest exception as recognized in Chimel, the opinion has

been interpreted in many jurisdictions, including this one, as permitting

a vehicle search incident to the arrest of a recent occupant even when

there is no possibility the arrestee could gain access to the vehicle‘s

passenger compartment at the time of the search. See, e.g., Thornton v.

United States, 541 U.S. 615, 628–29, 124 S. Ct. 2127, 2135, 158 L. Ed.

2d 905, 917–18 (2004) (Scalia, J., concurring) (recognizing that reported
cases upholding searches of vehicles incident to arrest when the arrestee

is handcuffed, restrained in the back of a patrol car, and not within
                                    20

reach of the passenger compartment are legion); State v. Edgington, 487

N.W.2d 675, 677–78 (Iowa 1992) (upholding the search of a vehicle‘s

passenger compartment incident to the arrest of its occupant under the

Fourth Amendment even though the arrestee had been taken away from

the vehicle and could not reach the passenger compartment); Sanders,

312 N.W.2d at 539 (adopting Belton‘s bright-line rule). Under this broad

interpretation of Belton, a vehicle search is permissible incident to every

arrest of a recent occupant, regardless of whether the vehicle‘s passenger

compartment is within the arrestee‘s reach at the time of the search.
Gant, ___ U.S. at ___, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496.

      3. Iowa’s reaction to the Belton decision. Iowa appears to be the

first state to adopt Belton as part of its state constitutional doctrine.

Sanders, 312 N.W.2d at 539. In Sanders, our court said, ―Belton strikes

a reasonably fair balance between the rights of the individual and those

of society.‖   Id.   Our court has only cited Sanders on two occasions

concerning the Belton rule. State v. Garcia, 461 N.W.2d 460, 463 (Iowa

1990); State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). In each case,

the defendant did not question the continued viability of Belton. Garcia,

461 N.W.2d at 463; Farni, 325 N.W.2d at 109.

      4. National reaction to the Belton decision. Soon after the Court

decided   Belton,    numerous   authors   sharply   criticized   the   broad

interpretation of Belton. See, e.g., Albert W. Alschuler, Bright Line Fever

and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 274–75 (1984);

Catherine Hancock, State Court Activism and Searches Incident to Arrest,

68 Va. L. Rev. 1085, 1129–32 (1982); Wayne R. LaFave, The Fourth

Amendment in an Imperfect World: On Drawing ‘Bright Lines’ and ‘Good
Faith,’ 43 U. Pitt. L. Rev. 307, 325 (1982); David S. Rudstein, The Search
                                    21

of an Automobile Incident to an Arrest: An Analysis of New York v. Belton,

67 Marq. L. Rev. 205, 261 (1984).

      State courts also began to react to Belton under their own

constitutions.    Five states adopted Belton as their own state‘s

constitutional doctrine. See, e.g., Stout v. State, 898 S.W.2d 457, 460

(Ark. 1995); State v. Waller, 612 A.2d 1189, 1193–94 (Conn. 1992); State

v. Charpentier, 962 P.2d 1033, 1037 (Idaho 1998); Sanders, 312 N.W.2d

at 539; State v. Rice, 327 N.W.2d 128, 131–32 (S.D. 1982); State v. Fry,

388 N.W.2d 565, 574–75 (Wis. 1986), overruled by State v. Dearborn, 786
N.W.2d 97, 105 (Wis. 2010) (adopting Gant‘s holding as Wisconsin‘s

constitutional doctrine). Eight states have rejected Belton as their state‘s

constitutional doctrine. See, e.g., State v. Hernandez, 410 So. 2d 1381,

1384–85 (La. 1982); Camacho v. State, 75 P.3d 370, 373–74 (Nev. 2003);

State v. Eckel, 888 A.2d 1266, 1266 (N.J. 2006); State v. Rowell, 188 P.3d

95, 100 (N.M. 2008); People v. Blasich, 541 N.E.2d 40, 43 (N.Y. 1989);

Commonwealth v. White, 669 A.2d 896, 901–02 (Pa. 1995); State v.

Bauder, 924 A.2d 38, 46–47 (Vt. 2007); Vasquez v. State, 990 P.2d 476,

488–89 (Wyo. 1999).

      In 2004 the United States Supreme Court decided Thornton.          In

Thornton, five members of the Supreme Court questioned the broad

interpretation of Belton. See Thornton, 541 U.S. at 624–36, 124 S. Ct. at

2133–40, 158 L. Ed. 2d at 915–23 (O‘Connor, J., concurring in part,

Scalia, J., concurring, and Stevens, J., dissenting) (concurring and

dissenting opinions joined by Justices O‘Connor, Scalia, Ginsburg,

Stevens, and Souter questioning a broad interpretation of Belton).       In

addition to the Supreme Court‘s questioning of the broad interpretation
of Belton, a body of academic writings renewed its criticism of Belton.

See, e.g., Carol A. Chase, Cars, Cops, and Crooks: A Reexamination of
                                     22

Belton and Carroll With an Eye Toward Restoring Fourth Amendment

Privacy Protection to Automobiles, 85 Or. L. Rev. 913, 940–41 (2006);

David S. Rudstein, Belton Redux: Reevaluating Belton’s Per Se Rule

Governing the Search of an Automobile Incident to an Arrest, 40 Wake

Forest L. Rev. 1287, 1359–60 (2005).

      In July 2007 the Arizona Supreme Court gave Belton a narrow

reading, by deciding that once the defendant and the other occupants of

a vehicle were handcuffed and seated in the back of locked patrol cars,

the Fourth Amendment required the officers to obtain a search warrant
prior to searching the vehicle. State v. Gant, 162 P.3d 640, 643 (Ariz.

2007), aff’d ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). The

Supreme Court granted certiorari in Gant on February 25, 2008. Arizona

v. Gant, 552 U.S. 1230, 1230, 128 S. Ct. 1443, 1443–44, 170 L. Ed. 2d

274, 274 (2008).     All of this criticism of Belton and the granting of

certiorari in Gant took place prior to Vance‘s arrest.

      The Supreme Court decided Gant in April 2009. Gant, ___ U.S. at

___, 129 S. Ct. at 1710, 173 L. Ed. 2d at 485.           The Court expressly

rejected the broad interpretation of Belton and tethered Belton‘s bright-

line rule to the dual purposes underlying the search-incident-to-arrest

exception as recognized in Chimel. Id. at ___, 129 S. Ct. at 1719, 173

L. Ed. 2d at 496. The Court held, under Belton, police may search the

passenger compartment of a vehicle incident to a recent occupant‘s

arrest ―only when the arrestee is unsecured and within reaching distance

of the passenger compartment at the time of the search.‖                  Id.

Accordingly, if an arrestee has been taken away from the vehicle,

restrained, or is otherwise not within reach of the vehicle, a search
incident to arrest can no longer be justified by the possibility the arrestee

may secure a weapon or destroy evidence. Id. Furthermore, relying on
                                        23

another        justification   underpinning   the   search-incident-to-arrest

exception, the Court held ―circumstances unique to the vehicle context

justify a search incident to a lawful arrest when it is ‗reasonable to

believe evidence relevant to the crime of arrest might be found in the

vehicle.‘ ‖ Id. (quoting Thornton, 541 U.S. at 632, 124 S. Ct. at 2137, 158

L. Ed. 2d at 920 (Scalia, J., concurring)).

        5. Application of general principles. Although Sanders held Iowa‘s

constitutional doctrine was the same as Belton, Sanders was decided

before the criticism of Belton began.          An attorney examining the
authorities citing Belton and Sanders would have discovered the

extensive criticism of the broad interpretation of Belton.            Such an

examination would also have revealed the fact that the United States

Supreme Court had granted certiorari in the Arizona Supreme Court‘s

decision in Gant.        Furthermore, an attorney reviewing the authorities

citing Belton and Sanders would have also learned that only five states,

other than Iowa, had adopted Belton as their state‘s constitutional

doctrine, while eight states had rejected it.        Moreover, an attorney

evaluating the law would have found the modern trend among the states

was to reject the broad interpretation of Belton. An attorney could have

discovered all of these developments regarding Belton by performing

simple searches in electronic legal research databases such as Westlaw

or LexisNexis.

        After determining many courts and scholars were questioning the

viability of Belton, counsel could have reviewed the development of

search and seizure doctrine under the Iowa Constitution. In 2000 we

began     to     emphasize     our   independence   from   adopting    federal
constitutional principles as Iowa‘s constitutional principles.        State v.

Cline, 617 N.W.2d 277, 284–85 (Iowa 2000), abrogated on other grounds
                                    24

by Turner, 630 N.W.2d at 606 n.2.        In Cline, we stated we would no

longer   abdicate   our   constitutional role   in   interpreting   the Iowa

Constitution by blindly following federal constitutional doctrine.     Id. at

285. We emphasized that for federal constitutional doctrine to have any

value, the doctrine ― ‗must be based on a convincing rationale.‘ ‖        Id.

(quoting State v. James, 393 N.W.2d 465, 472 (Iowa 1986) (Lavorato, J.,

dissenting)). Accordingly, we examined the Supreme Court‘s rationale for

the good-faith exception and refused to adopt the good-faith exception

under the Iowa Constitution because we found the rationale justifying its
adoption to be neither sound nor persuasive. Id. at 288–93. Four years

later, we found a violation of the Iowa Constitution, independent from the

Federal Constitution. See State v. Tague, 676 N.W.2d 197, 205–06 (Iowa

2004) (finding a violation of article I, section 8 of the Iowa Constitution,

independent from the Fourth Amendment to                the United States

Constitution). In Tague, we applied the Iowa Constitution to determine if

a traffic stop passed muster under the Iowa Constitution.                 Id.

Additionally, in numerous cases before Vance‘s arrest, we have

consistently said we would no longer blindly follow federal precedent on

issues of Iowa constitutional law and will accept United States Supreme

Court precedent only as persuasive authority. See, e.g., State v. Hoskins,

711 N.W.2d 720, 725 (Iowa 2006); State v. Allen, 690 N.W.2d 684, 689–

90 (Iowa 2005); State v. Reinders, 690 N.W.2d 78, 81–82 (Iowa 2004);

Cline, 617 N.W.2d at 284–85.

      At this point of the analysis, we would ordinarily analyze whether

counsel‘s performance was unreasonable, under prevailing professional

norms, for failing to challenge the continued viability of Sanders under
the Iowa Constitution.     See State v. Lowry, 667 P.2d 996, 1013 (Or.

1983) (Jones, J., concurring) (recognizing failure to raise a state
                                     25

constitutional claim and relying solely on parallel provisions under the

Federal Constitution should constitute ineffective assistance of counsel).

However, under this record we are unable to do so.
      In Gant, the Supreme Court noted that even if the Belton analysis,
as limited by Gant, does not uphold the constitutionality of a search,
other exceptions to the warrant requirement authorizing an officer to
search a vehicle might be applicable to uphold the search. Gant, ___ U.S.
at ___, 129 S. Ct. at 1721, 173 L. Ed. 2d at 498–99. Under the existing
record, we cannot determine whether counsel failed to question Belton
and Sanders because counsel believed another exception to the warrant
requirement under the federal or state constitutions would have allowed
the search of the vehicle. In addition, under the facts as developed thus
far, we cannot determine if another exception to the warrant requirement
applies under the Iowa Constitution.
      Accordingly, we must decline to rule on Vance‘s claim of ineffective
assistance of counsel for his counsel‘s failure to raise the issues
surrounding Gant on direct appeal and preserve Vance‘s ineffective-
assistance-of-counsel claim for possible postconviction relief proceedings.
      VI. Conclusion.
      We affirm the decision of the court of appeals and the judgment of
the district court because there was reasonable suspicion to initiate an
investigatory stop of the vehicle the defendant was driving, and
substantial evidence supports his conviction for possession of a
precursor product with the intent to manufacture methamphetamine.
We preserve Vance‘s claim of ineffective assistance of counsel for possible
postconviction relief proceedings.
      DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
      All justices concur except Cady and Streit, JJ., who dissent.
                                    26

                                             #75/08–1762, State v. Vance

CADY, Justice (dissenting).

      I respectfully dissent from the holding of the majority to preserve

the claim of ineffective assistance of counsel for postconviction relief. I

dissent because I believe the record in this case is adequate for us to

decide that trial counsel was not ineffective for failing to attack the

viability of the search-incident-to-arrest exception to the warrant

requirement in light of Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173

L. Ed. 2d 485 (2009).
      The record in this case is adequate because it reveals the search

was clearly permitted under the well-recognized automobile exception to

the warrant requirement.     The majority‘s own opinion bears this out.

The majority holds the arresting officer had reasonable grounds to stop

the vehicle operated by Vance. Additionally, the majority acknowledges

the arresting officer observed methamphetamine through the window of

the vehicle during the stop. These facts, and others, clearly justify the

search under the automobile exception.         Consequently, a criminal

defense lawyer cannot render ineffective assistance of counsel based on

the failure to attack the viability of one exception to the warrant

requirement when another exception applies under the circumstances of

the case.

      The automobile exception to the warrant requirement under the

state and federal search and seizure clauses allows a warrantless search

if there is probable cause to search the vehicle. See State v. Allensworth,

748 N.W.2d 789, 795 (Iowa 2008). The exception is justified based on

the inherent mobility of a vehicle, as well as a lower expectation of
privacy in vehicles.    State v. Cain, 400 N.W.2d 582, 585 (Iowa 1987).

This exception has been firmly planted in our Iowa jurisprudence for over
                                        27

twenty years. See State v. Olsen, 293 N.W.2d 216, 219–20 (Iowa 1980)

(applying the automobile exception to the warrant requirement under the

Iowa Constitution). It has also been a part of our federal jurisprudence

for even longer. Moreover, we have made it clear that our interpretation

of the search and seizure clause under the Iowa Constitution conforms to

the Search and Seizure Clause under the Federal Constitution. See id. at

220; see also State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000) (noting

that, while the application of the automobile exception focused on the

Fourth Amendment to the Federal Constitution, the discussion on the
issue was ―equally applicable to [the defendant‘s] claim under the Iowa

Constitution‖), abrogated on other grounds by State v. Turner, 630

N.W.2d 601, 606 n.2 (Iowa 2002).

      The same facts used by the majority to uphold the stop in this case

unquestionably made the search permissible under the automobile

exception.   We have numerous cases upholding a search of a vehicle

when there is evidence of illegal drug activity in plain view.   See, e.g.,

State v. Carter, 696 N.W.2d 31, 38 (Iowa 2005) (finding sufficient

probable cause to search vehicle upon seeing plastic container); State v.

Bergmann, 633 N.W.2d 328, 338 (Iowa 2001) (upholding warrantless

search after police dog alerted to narcotics); Gillespie, 619 N.W.2d at 353

(denying existence of sufficient probable cause for warrantless search of

vehicle when officer did not see contraband, but merely saw the

defendant‘s vehicle driving away from an anhydrous ammonia facility).

Consequently, the ineffective-assistance-of-counsel claim raised by

Vance on appeal is totally without merit.

      Streit, J., joins this dissent.
