                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0603
                                 Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARCUS GAMBLIN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Richard D.

Stochl (motion to suppress) and Kellyann M. Lekar (trial and sentencing),

Judges.



      A defendant appeals the district court’s denial of his motion to suppress

evidence. AFFIRMED.



      Marcus D. Gamblin, Fort Madison, appellant pro se.

      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Vogel and Bower, JJ.
                                            2


VOGEL, J.

       Marcus Gamblin appeals following his convictions for first-degree robbery,

in violation of Iowa Code section 711.2 (2011); possession of a controlled

substance with intent to deliver while in the immediate possession or control of a

firearm, in violation of section 124.401(1)(d) and (1)(e); and possession of a

firearm as a felon, in violation of section 724.26. He claims on appeal the district

court should have granted his motion to suppress evidence because the officers

did not have reasonable suspicion to remove him, as a passenger, from the

vehicle or conduct a pat-down of his person. Because we agree with the district

court’s conclusion the officers had reasonable suspicion to both remove Gamblin

from the vehicle and conduct a pat-down of his person, we affirm the district

court’s denial of his motion to suppress.

I. Background Facts and Proceedings.

       Police officers received a tip from a confidential informant on February 29,

2012, that Willie Phillips would participate in a robbery in a certain location in

Waterloo. Officer Nissen, an undercover police officer, was already investigating

Phillips as part of a narcotics investigation and observed a black Monte Carlo

outside of Phillips’s residence on the afternoon of February 29. Officer Nissen

informed Officer Girsch of the information in the tip and asked him to be around

the area that evening.

       About four hours after receiving the tip, police dispatch received a call an

armed robbery had taken place at the Neighborhood Mart. This location was

approximately one mile from the location the confidential informant reported the

robbery would occur. The victim reported to dispatch the robber was a black
                                          3


male, wearing a ski mask and brandishing a handgun. The victim also reported

seeing the robber and an accomplice get into a light-colored, full-sized car.

       Approximately twenty-five minutes after the dispatch regarding the

robbery, Officer Nissen observed a black Monte Carlo drive by his position. He

also noticed the license plate light was not functioning to illuminate the rear plate.

He called Officer Girsch and informed him of the location of the vehicle, the

equipment violation, that the vehicle was earlier under surveillance for a narcotics

investigation, and that it likely was involved in the robbery. Officer Girsch, who

was near the area, located the vehicle and pulled it over.1

       As the suspect vehicle came to a stop, Officer Girsch and his partner,

Officer Gann, observed a black male rise from a lying-down position in the back

seat of the vehicle and then begin moving from side to side. Officer Girsch

observed the suspect’s right shoulder come up at an angle, which made it appear

the suspect was lifting his rear off the seat. With his prior experience, Officer

Girsch understood these types of “furtive movements” to be associated with

people concealing contraband by shoving items in the seat, in their pants, or in

their pockets. Both Officers Girsch and Gann verbally warned each other about

the movements and were concerned for their safety as they approached the

vehicle due to the movements coupled with the information they had received

from Officer Nissen that this vehicle may have been involved in the earlier armed

robbery.




1
 Officer Girsch was in a marked police vehicle with Officer Gann. Officer Nissen was in
an unmarked police vehicle and, as a result, could not conduct the stop.
                                        4


      The officers identified the suspect in the back seat as Marcus Gamblin.

Willie Phillips was the front seat passenger, and the vehicle was being driven by

the vehicle’s owner, Medeese Jenkins. Approximately six minutes into the stop,

and after showing Jenkins the malfunctioning light, Officer Girsch asked Gamblin

to step out of the vehicle. The officer advised Gamblin multiple times to keep his

hands visible; Gamblin allowed his hands to go down by his waist several times.

While Gamblin, a large man, may have had some difficulty exiting a two-door

vehicle from the back seat, he appeared to the officers to be stalling. Gamblin’s

hand movements were a red flag to Office Girsch. Once out of the vehicle,

Gamblin’s hands again went toward his waistband. Officer Girsch advised him to

put his hands on the roof of the vehicle; Gamblin complied, and Officer Girsch

placed him in handcuffs for the officers’ safety.      A pat-down search was

conducted, and Officer Girsch located a handgun in Gamblin’s pocket. Other

officers on the scene observed, in plain view, a baggie with a powdery substance

on the floorboard of the back seat of the car where Gamblin’s feet were, as well

as a ski mask near the front passenger seat.

      After charges were filed against Gamblin, he filed a motion to suppress

the evidence obtained as a result of the stop, asserting the officers lacked

reasonable suspicion to remove him from the vehicle or conduct a pat-down.

After a hearing involving the testimony of Officers Nissen, Girsch, and Gann and

Medeese Jenkins, the district court denied the motion. The case proceeded to

trial where Gamblin was found guilty. He was sentenced to twenty-five years

with a mandatory seventy-percent minimum on the first-degree-robbery

conviction, five years on the possession-of-a-firearm-as-a-felon conviction, and
                                         5


ten years on the possession-with-intent conviction. The robbery and possession-

with-intent convictions were ordered to be served consecutively, but the felon-in-

possession-of-a-firearm conviction was ordered to be served concurrently, for a

total term of incarceration of thirty-five years. Gamblin appeals the denial of his

motion to suppress.

II. Scope and Standard of Review.

      Our review of the district court’s denial of a motion to suppress based on

an alleged constitutional violation is de novo. State v. Pals, 805 N.W.2d 767, 771

(Iowa 2011).     We conduct an independent evaluation of the totality of the

circumstances as shown by the entire record. Id. We give deference to the

district court’s factual findings because of its opportunity to evaluate the

credibility of the witnesses, but we are not bound by those findings. Id.

III. Analysis.

      Gamblin admits the vehicle in which he was riding was validly stopped for

the equipment violation. However, he claims the officers did not have reasonable

suspicion to remove him, as a passenger, from the vehicle or conduct a pat-down

search. He also acknowledges that the United States Supreme Court has ruled

“an officer making a traffic stop may order passengers to get out of the car

pending completion of the stop” under the Fourth Amendment. See Maryland v.

Wilson, 519 U.S. 408, 415 (1997). However, he asks that we interpret the Iowa

Constitution more narrowly and afford passengers additional protection against

searches and seizures by requiring officers to have “articulable and objective

reasons that would lead a reasonable officer to be concerned for his safety or the
                                        6


safety of others” before removing a passenger from a vehicle. He cites no Iowa

cases that have so held, and we find none.

      Even if we were to agree the Iowa Constitution should require such a

reasonable-suspicion standard before passengers could be removed from a

vehicle, we conclude, as did the district court, the officers in this case had

reasonable suspicion, justifying Gamblin’s removal from the vehicle and the

subsequent pat-down.     In denying the motion to suppress, the district court

stated:

             Girsch testified he did not feel safe with Gamblin in the rear
      of the vehicle. Gamblin had made numerous furtive movements
      indicative of possessing or hiding contraband or a weapon.
      Officers knew a robbery had just occurred and that the suspect had
      brandished a gun. They observed him move in such a fashion that
      it appeared he was tucking something into his pants or into the
      seat. A reasonable interpretation of these movements was that
      Gamblin was hiding or retrieving a gun, thus understandably
      causing officers to be concerned for their safety.
             Once Gamblin was out of the car, Girsch had the right to
      perform a pat-down search. That pat-down search was reasonable
      and justified under the circumstances.

      Gamblin disagrees with the district court’s findings, pointing out that

dispatch did not relay any information connecting the black Monte Carlo to the

robbery, the victim reported the vehicle involved was “light-colored,” the officers

took six minutes to remove him from the vehicle, indicating to him they did not

reasonably fear for their safety, and there were a number of innocent reasons he

could have been making the movements he made in the back seat as the officers

approached. The reasonable-suspicion standard does not require officers to rule

out the possibility of innocent behavior before initiating a stop. State v. Kreps,

650 N.W.2d 636, 642 (Iowa 2002); see also Alabama v. White, 496 U.S. 325,
                                          7


330 (1990) (“Reasonable suspicion is a less demanding standard than probable

cause not only in the sense that reasonable suspicion can be established with

information that is different in quantity or content than that required to establish

probable cause, but also in the sense that reasonable suspicion can arise from

information that is less reliable than that required to show probable cause.”).

       After our de novo review of the facts and applicable law in this case, we

agree with the district court. Both officers testified that Gamblin’s movements in

the back seat, along with the information they had received from Officer Nissen

and dispatch regarding the very recent armed robbery, the connection between

this vehicle and Phillips, and the connection between Phillips and the robbery,

gave them reasonable suspicion to believe their safety, or the safety of others,

was at risk. The officers were justified in asking Gamblin to exit the vehicle.

Gamblin’s actions in failing to keep his hands away from his waistband as he

exited the vehicle gave the officers additional reasons to conduct the pat-down

search.

       Even under the more restricted interpretation of the search-and-seizure

protections of the Iowa Constitution proposed by Gamblin in this case, we find

the removal of Gamblin from the vehicle and the subsequent pat-down valid. We

therefore affirm the district court’s denial of his motion to suppress.

       Gamblin raises two claims in his pro se brief. First, he alleges the district

court made multiple errors in its factual findings. We have reviewed the errors

alleged and reviewed the record de novo. We do not find any of the alleged

errors had any effect on the ultimate conclusion of the district court. See Pals,

805 N.W.2d at 771 (noting our de novo review includes the totality of the
                                         8


circumstances as shown by the entire record). Gamblin also asserts his trial

counsel was ineffective when counsel failed to play the video of the traffic stop

for the court at the hearing. We note the video was admitted as evidence at the

suppression hearing and available to the court for viewing after the hearing. We

find neither a breach of a duty nor prejudice as a result of the video not being

played for the court during the actual suppression hearing. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (setting out the applicable standard to

prevail on a claim of ineffective assistance of counsel).

       We affirm Gamblin’s convictions and sentences.

       AFFIRMED.
