                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1398
                                 Filed May 29, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL GLEN RILEY,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.



      A defendant appeals his conviction following his guilty plea, alleging his

attorney provided ineffective assistance by failing to file a motion to suppress.

AFFIRMED.



      Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

      Michael G. Riley, Des Moines, pro se appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, John Sarcone, County Attorney, and Andrea M. Petrovich, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.

      Michael Riley appeals his conviction following his guilty plea to possession

of a controlled substance, second offense, in violation of Iowa Code section

124.401(5) (2013).    He contends his plea was not knowingly and voluntarily

entered because his attorney rendered ineffective assistance in failing to file a

motion to suppress the evidence against him. He claims had his attorney filed

the motion, all evidence against him would have been suppressed, and as a

result, he would not have had to plead guilty. Because we conclude a motion to

suppress would not have been granted if it had been filed, we find Riley’s

ineffective-assistance-of-counsel claims fails. We therefore affirm his conviction.

I. Background Facts and Proceedings.

      According to the minutes of testimony filed in this case, Officer Noble with

the Des Moines Police Department was dispatched on a report of a “suspicious

person.” Upon arriving on the scene, Officer Noble met with two individuals who

pointed out a man with no shirt on and stated the man “seemed to be tweaked

out and acting funny.”     Officer Noble approached the man, who was later

identified as Riley, and asked him what he was doing. Riley was unable to hold

still while speaking with the officer, and Officer Noble had trouble understanding

everything Riley was trying to say. Officer Noble believed Riley “was under the

influence of a narcotic” based on his “training and years of experience.”

      When the officer inquired whether Riley had recently used any drugs,

Riley responded that he had only had a beer. The officer asked if Riley had

anything illegal on him, and after a brief pause, Riley responded, “No.” Officer
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Noble then asked if Riley had any weapons on him, and Riley admitted to having

a pocket knife. Officer Noble instructed Riley to place his hands on his head so

that Officer Noble could check to make sure he did not have any weapons.

Before Officer Noble could check Riley’s pockets, Riley put his right hand into his

jeans pocket. Officer Noble removed the hand from the pocket and instructed

Riley to place his hand back on his head. Officer Noble was able to see a spoon

and a piece of paper in Riley’s right front pocket.

         Riley would not hold still. Riley tried again to take his hands off his head,

so Officer Noble instructed him multiple times to place his hands behind his back.

Riley complied momentarily but then Riley pulled his left arm away, breaking the

officer’s hold. Riley failed to comply with further instructions to place his hands

behind his back, and Riley spun toward Officer Noble with his right shoulder.

Officer Noble responded by grabbing Riley and taking him to the ground. After

being held on the ground, Riley finally complied with the officer’s commands to

place his hands behind his back, and the officer was able to place handcuffs on

Riley.

         A search of Riley’s person was performed, and Officer Noble discovered a

spoon with residue and a syringe in the front right pocket. He also found a folded

up piece of paper with a crystallized substance that tested positive for

methamphetamine.

         Riley was charged with possession of a controlled substance, third

offense.     Under a separate case number, Riley was also charged with

interference with official acts and possession of drug paraphernalia. He agreed
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to a plea offer from the State to plead guilty to the lesser offense of possession of

a controlled substance, second offense, and the State agreed to dismiss the

other two charges. The parties agreed to the imposition of a two-year sentence,

which would be consecutive to a parole violation sentence.          Riley entered a

written guilty plea, waiving his right to be present and requesting immediate

sentencing. He admitted he possessed methamphetamine in Polk County and

had previously been convicted of possessing a controlled substance. The court

accepted the written guilty plea and sentenced him in accordance with the plea

agreement.

       Riley now appeals claiming ineffective assistance of counsel.

II. Scope and Standard of Review.

       We review ineffective-assistance-of-counsel claims de novo because such

claims are based on a defendant’s constitutional right to an attorney. State v.

Utter, 803 N.W.2d 647, 651 (Iowa 2011). While we normally preserve such

claims for postconviction-relief proceedings, we will consider the merits of a claim

on direct appeal so long as the record is adequate to address the claim. Id. We

believe the record in this case is adequate to address Riley’s claim.

III. Ineffective Assistance—Motion to Suppress.

       To prove counsel was ineffective, Riley must show counsel failed to

perform an essential duty and he suffered prejudice as a result. See State v.

Carroll, 767 N.W.2d 638, 641 (Iowa 2009). Both elements must be proved by a

preponderance of the evidence, and the claim fails if either element is not

proved. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). When the claim is
                                             5



asserted in the context of a guilty plea, to establish prejudice, a claimant must

show there is a reasonable probability that, but for counsel’s errors, he would not

have pled guilty but would have insisted on going to trial. Carroll, 767 N.W.2d at

641.

         While a guilty plea waives all defenses and objections not intrinsic to a

plea, our supreme court has permitted a defendant to “challenge the validity of

[the] guilty plea by proving the advice he received from counsel in connection

with the plea was not within the range of competence demanded of attorneys in

criminal cases.”       Id. at 642.    There are now no categories of ineffective-

assistance-of-counsel claims that cannot, as a matter of law, survive a guilty

plea, though courts must now analyze each individual case to determine whether

counsel breached a duty in advance of a guilty plea and whether the breach

rendered the plea unintelligent and involuntary. Id. at 644.

         Riley claims counsel breached a duty by failing to file a motion to suppress

the evidence seized as a result of his encounter with Officer Noble. Because

counsel does not have a duty to raise a meritless issue, the resolution of Riley’s

ineffective-assistance claim requires us to determine whether Officer Noble

violated Riley’s constitutional rights against unreasonable searches and seizures.

See id. at 645.

         Searches conducted without a warrant are per se unreasonable unless an

exception to the warrant requirement applies. State v. Kinkead, 570 N.W.2d 97,

100 (Iowa 1997). One of the well-established exceptions is a Terry1 stop, where


1
    See Terry v. Ohio, 392 U.S. 1, 30–31 (1968).
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an officer is allowed to “stop an individual . . . for investigatory purposes based

on a reasonable suspicion, supported by specific and articulable facts, that a

criminal act has occurred or is occurring.” Id. The reasonable suspicion inquiry

is based on an objective standard: “whether the facts available to the officer at

the time of the stop would lead a reasonable person to believe that the action

taken by the officer was appropriate.” Id. The officer “must be able to point to

‘specific and articulable facts, which taken together with rational inferences from

those facts, reasonably warrant that intrusion.’” State v. Kreps, 650 N.W.2d 636,

641 (Iowa 2002) (citation omitted). The evidence justifying the stop need not rise

to the level of probable cause; the “officer may make an investigatory stop with

‘considerably less than proof of wrongdoing by a preponderance of the

evidence.’” Id. at 642 (citation omitted).

       Riley does not challenge Officer Noble’s initial contact with him, stating it

was “consensual in nature.” He claims however, that Officer Noble’s commands

and physical actions resulted in an encounter that was no longer consensual,

and Officer Noble needed specific and articulable facts to justify further detention.

We conclude Officer Noble had such specific and articulable facts in this case to

justify the Terry stop. Witnesses at the scene told the officer upon his arrival that

Riley “seemed to be tweaked out and [was] acting funny.” When answering

questions by the officer, Riley was unable to hold still, and the officer had trouble

understanding what Riley was trying to say. Based upon his discussion with

Riley, Officer Noble believed Riley was under the influence of some narcotic

based on his training and experience. Officer Noble inquired of Riley whether he
                                          7



used any narcotics or had anything illegal in his possession. Riley paused before

answering no to the later question.

      The officer also inquired whether Riley had any weapons, and Riley

admitted to having a pocket knife. Riley contends on appeal that the fact he

volunteered the information regarding his possession of the knife somehow

should have prevented the officer from conducting a Terry pat down for weapons.

We conclude just the opposite.        Officer Noble believed Riley was under the

influence of a narcotic, he was acting erratically, and he admitted to having a

knife in his possession. Officer Noble was justified in conducting a pat-down

search in order to secure the knife, and any other weapon Riley may have in his

possession, for the officer’s safety and the safety of the surrounding public. It

was when the officer attempted to conduct the pat-down that Riley failed to

comply with instructions and actively resisted the officer’s attempts. “The right to

make an investigatory stop ‘necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it.’” State v. Dewitt, 811

N.W.2d 460, 468 (Iowa 2012). “Generally, physical force to detain a suspect is

reasonable when the suspect refuses to stop when ordered to do so.” Id. at 473.

Riley repeatedly refused to comply with the officer’s directions to keep his hands

out of his pocket, and Officer Noble acted reasonably in ensuring compliance

through the use of reasonable force.

      Riley claims when Officer Noble wrestled him to the ground and placed

him in handcuffs a “de facto arrest” occurred requiring Officer Noble to have

probable cause that Riley had committed a public offense.            We disagree.
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Wrestling Riley to the ground and the use of the handcuffs was necessary in this

situation for Officer Noble to conduct the pat-down search. It did not amount to

an arrest requiring probable cause. See id. (concluding the officers’ seizing the

defendant’s arm, tackling the defendant to the ground, and handcuffing the

defendant was a reasonable Terry seizure).

       Because we find the seizure and pat-down of Riley was a reasonable

Terry stop and frisk and that the officer acted reasonably, Riley’s attorney was

not ineffective in failing to file a motion to suppress before Riley entered his guilty

plea. Riley’s claim fails, and his conviction is affirmed.

       AFFIRMED.
