Date: 07-23-2017

Case Style:

Case Number: 15-1990

Judge: David Danilson

Court: IN THE COURT OF APPEALS OF IOWA

Plaintiff's Attorney:

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

Defendant's Attorney:

Bill Monroe

Description: The facts of this case are stated in our previous opinion, State v. Rose,
No. 11-0243, 2012 WL 652440, at *1 (Feb. 29, 2012):
On May 29, 2010, around noon, Iowa State Trooper Paul Rairden observed a Keokuk Contractors van parked on the shoulder of the road in a remote area near a salvage yard. Rairden stated he patrolled the area frequently and thought it was unusual that the van was parked in the industrial area on a Sunday morning. Rairden pulled up next to the van and rolled down his window to ask if everything was okay. Rairden testified the driver of the van, Donnie Rose, did not roll down his window, but he indicated everything was fine. When Rairden pulled away, Rose also drove away slowly. As the van left, Rairden noticed a passenger in the van he had not initially seen. Rose drove very slowly down the road and rolled through a stop sign without coming to a complete stop. Rairden also noticed that two of the van’s brake lights were out. Rairden turned on his emergency lights and stopped the van. Rairden testified that as he turned on his lights, he saw the passenger of the van, later identified as Joseph Jones, lean over and reach between the driver and passenger seats, making a downward motion. Rairden testified he saw Jones make these furtive movements twice. Rairden testified this worried him because he feared Jones was hiding a weapon. Rairden approached the driver’s side of the van and asked for Rose’s license, registration, and insurance information. Rose



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produced the requested information, and Rairden asked Rose to come back to his police car. Rose was cooperative. Rairden issued Rose a repair card for the brake lights and a warning for running the stop sign. Rairden testified that once he had Rose in the police car, he requested backup because he intended to search the van and wanted backup there before he did so due to “the furtive movements of the passenger.” Rairden and Rose sat in the patrol car while Rairden completed the paperwork; Jones apparently remained in the passenger seat of the van without raising any further suspicion. Deputy Chad Donaldson arrived as backup, followed shortly by Keokuk Police Officer John Simmons. Rairden turned Rose over to Donaldson and approached the passenger side of the vehicle. Rairden informed Jones he had observed him making furtive movements and needed to check the area to see what Jones had been doing. Rairden had Jones exit the vehicle and stand back with Officer Simmons. Rairden then searched the center console area in which Jones had been reaching and found a box of pseudoephedrine pills, plastic baggies, and a small bag of what appeared to be marijuana. After completing a limited search, Rairden stopped and called the Lee County Narcotics Task Force to finish the search of the vehicle. Defendant Rose was subsequently charged with manufacturing methamphetamine, possession of a precursor with the intent to manufacture methamphetamine, and possession of marijuana.

The jury trial commenced on December 14, 2010, and the jury found Rose
guilty of all three counts. Rose appealed, “asserting the district court erred in
denying his motion to suppress because [Trooper] Rairden was not justified in
conducting a protective search based solely on passenger Jones’s furtive
movements.” Rose, 2012 WL 652440, at *2.
In Rose’s first appeal, we likened the facts to those in State v. Riley, 501
N.W.2d 487, 488 (Iowa 1993), where the Iowa Supreme Court held the
defendant’s furtive movements along with additional suspicious circumstances
gave rise to the officer’s articulable suspicion that the defendant may be hiding or
0


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retrieving a weapon and warranted the officer’s limited search for weapons. See
Rose, 2012 WL 652440 at *3. We then held:
Just as in Riley, in the present case Rairden “testified that he saw [the passenger] reaching down . . . [and] was immediately alarmed by these furtive movements.” [Riley, 501 N.W.2d at 490]. “A reasonable interpretation of these movements was that [the passenger] was hiding or retrieving a gun, thus understandably causing [the trooper] to be concerned for his safety.” Id. Further, as in Riley, Rairden searched only the center console area in which he saw Jones reaching, where he suspected a weapon might be. See id. (noting the officer limited his search to what was minimally necessary to learn whether the passenger was armed). Finally, we find that, as in Riley, additional suspicious circumstances were present in this case. Riley suggests that additional suspicious circumstances do not need to be especially incriminating or threatening when viewed in isolation[,] the supreme court found the mere fact that the passenger did not have identification was sufficient to constitute additional suspicious circumstances. Id. We conclude the additional circumstances in this case were at least as suspicious as those presented in Riley. In the present case, Rairden discovered the van parked in a remote, unusual place at an unusual time, on a Sunday. The driver of the van declined to roll down his window to converse with Rairden when Rairden stopped to ask if he was alright. Further, Rairden testified when he initially pulled up to the van, he did not see a passenger, raising the possibility the passenger may have been hiding. Accordingly, we conclude Jones’s furtive movements were accompanied by additional suspicious circumstances, giving Rairden a specific and articulable suspicion to justify a limited protective weapons search of the area in which he saw Jones reaching.

Id. at *3-4. We also noted, however,
Riley involved a protective search conducted immediately or shortly after the furtive movements were observed. . . . [And] Rose did not challenge the search of his van on the basis that the traffic stop had been completed or that the passage of time with Jones sitting alone in the van made the officer’s need for self-protection less compelling.

Id. at *2 n.1 (internal citation omitted). In this case, Trooper Rairden requested
back-up law enforcement officers before searching the vehicle, requiring Rose to



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wait in Trooper Rairden’s vehicle for approximately twenty to thirty minutes
before other officers arrived.
Rose filed the PCR application on July 17, 2012, and filed an amended
application on December 23, 2013. Rose asserted trial counsel was ineffective
in failing to renew the motion to suppress based on facts presented at trial and
argue the vehicle search exceeded the bounds permitted by Terry v. Ohio, 392
U.S. 1, 27 (1968), and Knowles v. Iowa, 525 U.S. 113, 118-19 (1998). Rose also
asserted trial counsel was ineffective in failing to argue the stop of the vehicle
was unconstitutionally prolonged beyond the time reasonably required to
complete the traffic stop. Rose asserted appellate counsel was also ineffective
for failing to raise these arguments in the first appeal. By agreement of the
parties, the matter was submitted to the PCR court without a hearing.
The PCR court held Jones’s furtive movements gave Trooper Rairden
reasonable suspicion to search for weapons and it would therefore be fruitless for
trial counsel to renew the motion to suppress. The PCR court also held the traffic
stop was not unconstitutionally prolonged because the stop was permissibly
extended based on Trooper Rairden’s reasonable suspicion that weapons could
be hidden in the vehicle. The PCR court determined neither trial nor appellate
counsel rendered ineffective assistance and denied Rose’s PCR application.
Rose now appeals.
II. Standard of Review.
“We normally review postconviction proceedings for errors at law.” Castro
v. State, 795 N.W.2d 789, 792 (Iowa 2011). “Applications for postconviction
relief that allege ineffective assistance of counsel, however, raise a constitutional



6
claim. We review postconviction proceedings that raise constitutional infirmities
de novo.” Id.; see also Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012)
(“Where the application alleges constitutional error, our ‘review is de novo “in
light of the totality of the circumstances and the record upon which the
postconviction court’s rulings w[ere] made.”’” (citations omitted)).
III. Analysis.
Rose asserts his PCR application should have been granted because trial
and appellate counsel were ineffective in failing to challenge the search of the
vehicle on the basis it occurred after the traffic citations were issued and the
need for an investigation was over.
“To prevail on a claim of ineffective assistance of counsel, a claimant must
satisfy the Strickland [v. Washington, 466 U.S. 668, 687(1984),] test by showing
‘(1) counsel failed to perform an essential duty; and (2) prejudice resulted.’”
State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012).
A. Terry and Knowles. Rose first contends trial and appellate counsel
should have argued Trooper Rairden’s search of the vehicle exceeded the
bounds of Terry and Knowles because Trooper Rairden did not reasonably
believe Rose and Jones were armed and dangerous as required by Terry, 392
U.S. at 27, and because Trooper Rairden was not permitted to search the vehicle
incident to the issuance of a traffic citation as held in Knowles, 525 U.S. at 117.
In Knowles the United State Supreme Court refused to extend the bright
line rule that officers may search incident to arrest to situations involving only the
issuance of a citation. 525 U.S. at 118-19. While the Court in Knowles
acknowledged the threat to officer safety is less significant in a traffic-stop



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scenario than during an arrest, it still maintained “officer safety in this context
may justify . . . ‘minimal’ additional intrusion.” Id. at 117. However, the United
States Supreme Court has more recently recognized “[t]raffic 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, 135 S. Ct. 1609, 1616 (2015).
Notwithstanding the recognition of the danger of traffic stops, in light of Knowles,
the State may not rely solely upon the issuance of a citation to support a search.
See Knowles, 525 U.S. at 118-19.
On Rose’s direct appeal, we upheld the search because “Jones’s furtive
movements were accompanied by additional suspicious circumstances, giving
[Trooper] Rairden a specific and articulable suspicion to justify a limited
protective weapons search of the area in which he saw Jones reaching.” Rose,
2012 WL 652440, at *4. In reaching this conclusion we relied upon the principles
in Riley, 501 N.W.2d at 490, which in turn applied the principles in Michigan v.
Long, 463 U.S. 1032, 1049 (1983), and Terry, 392 U.S. at 27.
Here, Trooper Rairden expressed a concern for his safety justifying the
additional intrusion of a search of the vehicle, and such a justification is
supported by the law. See State v. Bergmann, 633 N.W.2d 328, 333 (Iowa
2001); see also Riley, 501 N.W.2d at 490.
Additionally, Trooper Rairden’s search of the vehicle did not exceed the
bounds of Terry. Terry held:
[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where [the officer] has reason to believe that [the officer] is dealing with an



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armed and dangerous individual, regardless of whether [the officer] has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that [their] safety or that of others was in danger.

392 U.S at 27. The United States Supreme Court expanded upon the Terry
ruling in Long, 463 U.S. at 1049-50, holding:
[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Rose now maintains Trooper Rairden and the other officers did not
reasonably believe him and Jones to be armed and dangerous so as to justify the
limited search of the vehicle based on evidence submitted at trial. Rose
contends the trial evidence rebuts any conclusion there was any danger or safety
concerns, and counsel was ineffective for failing to renew the motion to suppress
at the close of the evidence at trial. We disagree for several reasons.
As we have noted, on Rose’s first appeal we already determined Trooper
Rairden acted within the bounds of Riley, and therefore Terry, in searching the
vehicle based on a specific and articulable suspicion that there may have been
weapons hidden in the vehicle. Rose, 2012 WL 652440, at *4. The law-of-the
case doctrine prevents reconsideration of the basis for the search, providing,
[T]he legal principles announced and the views expressed by a reviewing court in an opinion, right or wrong, are binding throughout further progress of the case upon the litigants, the trial court and this court in later appeals.” [State v.] Grosvenor, 402 N.W.2d [402, 405 (Iowa 1987)]. Therefore, under the doctrine, “‘an appellate decision becomes the law of the case and is controlling on both the



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trial court and on any further appeals in the same case.’” Bahl [v. City of Asbury, 725 N.W.2d 317, 321 (Iowa 2006)] (quoting United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000)).

State v. Ragland, 812 N.W.2d 654, 658 (Iowa 2012).
Moreover, in conducting a de novo review, as we did in Rose’s direct
appeal, “we may consider evidence presented at the suppression hearing as well
as evidence presented at trial.” State v. Kinkead, 570 N.W.2d 97, 99 (Iowa
1997). Thus, the failure to renew the motion to suppress at the conclusion of the
trial was not prejudicial to Rose. Finally, we are not concerned about the
subjective opinion of the officer but rather whether a “reasonably prudent
[person] in the circumstances would be warranted in the belief that [their] safety
or that of others would be in danger.” Riley, 501 N.W.2d at 489 (quoting Terry,
392 U.S. at 27).
We thus conclude the PCR court properly denied Rose’s PCR application
with respect to the allegation trial and appellate counsel were ineffective in failing
to raise arguments based on Terry and Knowles, as such arguments would have
been meritless. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)
(“[C]ounsel has no duty to raise issues that have no merit.”).
B. Prolonging the Traffic Stop. Rose also contends trial and appellate
counsel should have raised arguments asserting Trooper Rairden
unconstitutionally prolonged the traffic stop.
“[A] traffic stop [i]s more analogous to a Terry-type stop than a formal
arrest. As a result, the federal courts and many state courts have sought to



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apply Terry principles in evaluating searches and seizures arising from traffic
stops.” State v. Pals, 805 N.W.2d 767, 775 (Iowa 2011).
Like a Terry stop, the tolerable duration of police inquires in the traffic-stop contest is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.” Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.

Rodriguez, 135 S. Ct. at 1614 (alteration in original) (citations omitted). “An
officer, in other words, may conduct certain unrelated checks during an otherwise
lawful traffic stop. But . . . [the officer] may not do so in a way that prolongs the
stop, absent the reasonable suspicion ordinarily demanded to justify detaining an
individual.” Id. at 1615; see also In re Pardee, 872 N.W.2d 384, 392-93 (Iowa
2015); Bergmann, 633 N.W.2d at 335 (“[P]olice cannot unduly prolong their
detention of an individual to secure a drug dog or for any other reason without
additional suspicion of wrongdoing that warrants expansion of the stop.”).
Rose maintains by requiring him to wait for approximately twenty to thirty
minutes after the warnings were issued for the arrival of additional officers to
provide back-up during the search, Trooper Rairden unconstitutionally prolonged
the traffic stop. We might agree if Trooper Rairden had no independent grounds
to perform a search.
This case is distinguishable from other cases where it has been held a
traffic stop was unconstitutionally prolonged. In Rodriquez, the United States
Supreme Court held a traffic stop was unconstitutionally prolonged when—after
the officer had issued a warning ticked, returned all documents to the driver, and



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testified he “got all the reason[s] for the stop out of the way”—the driver was
required to wait seven to eight minutes for a drug-dog sniff to be performed
around the vehicle’s perimeter. 135 S. Ct. at 1613 (alteration in original). The
Court explained:
Unlike a general interest in criminal enforcement, however, the government’s officer safety interests stems from the mission of the stop itself. 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. On-scene investigation into other crimes, however, detours from that mission.

Id. at 1616.
Similarly, our supreme court in Pardee held a traffic stop was
unconstitutionally prolonged after an officer issued traffic warnings and told the
driver he was “free to go” but then required the driver to wait for the arrival of a K
9 unit to perform a sniff search of the vehicle. 872 N.W.2d at 388. The court
concluded the officer obtained any information that might give rise to an
individualized suspicion to justify the dog sniff after the stop was already
impermissibly prolonged. Id. at 396-97.
Our supreme court also recently revisited this issue in State v. Coleman,
890 N.W.2d 284 (Iowa 2017). In Coleman, the officer pulled the vehicle over
because a check of the license plate revealed the female registered owner had a
suspended license. Id. at 285. Because it was dark, the officer could not initially
tell the driver was not female, but it became apparent the driver was male as the
officer approached the vehicle. Id. The court held the traffic stop was
unconstitutionally prolonged when the officer asked for the driver’s license and
registration because, after the officer realized the driver was not the female



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registered owner with a suspended sentence, there was no valid ongoing traffic
stop. Id. at 299. The court held, “when the reason for a traffic stop is resolved
and there is no other basis for reasonable suspicion, article I, section 8 of the
Iowa Constitution requires that the driver must be allowed to go his or her way
without further ado.” Id. at 301.
Oppositely, we conclude Trooper Rairden’s extension of the stop was not
unconstitutional because addressing officer-safety concerns is part of the mission
of a traffic stop, and Trooper Rairden had individualized reasonable suspicion to
search the vehicle before issuing any citation.
As to the permissible mission of a traffic stop: “Beyond deciding whether
to issue a citation, an officer may make ‘ordinary inquiries’ incident to the traffic
stop, including checking the driver’s license, determining whether the driver has
outstanding warrants, and inspecting the car’s registration and proof of
insurance.” State v. Bounmy, No. 15-2225, 2017 WL 512486, at *5 (Iowa Ct.
App. Feb. 8, 2017). Additionally, measures to ensure officer safety are part of
the mission of a traffic stop. See Rodriguez, 135 S. Ct. at 1616 (“[T]he
government’s officer safety interest stems from the mission of the stop itself.”). In
this case, in order to ensure his safety, Trooper Rairden performed a limited
search of the center console area of the vehicle where he observed Jones
making furtive movements to check for weapons. As such, Trooper Rairden’s
search of the vehicle was part of the mission of the traffic stop, and the stop was
not unduly prolonged.
The traffic stop in this case was not unconstitutionally extended because
Trooper Rairden’s search was supported by independent reasonable suspicion.



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See Bounmy, 2017 WL 512486, at *6 (providing that after determining whether
the traffic stop was prolonged, “[t]he next question . . . is whether individualized
suspicion . . . existed”). In Rose’s first appeal, we concluded Jones’ furtive
movements and the additional suspicious circumstances in this case provided
Trooper Rairden specific and articulable suspicion to perform the protective
weapons search. Rose, 2012 WL 652441, at *4. We are bound by that
determination. Because Trooper Rairden encountered Rose and Jones parked
in a remote area during an unusual time of day, Rose initially declined to roll
down his window to speak with Trooper Rairden, and Jones was observed
making furtive movements as Trooper Rairden was initiating the traffic stop,
Trooper Rairden had individualized reasonable suspicion to search the vehicle’s
center-console area for weapons.
We acknowledge Trooper Rairden may not have acted or appeared to
have a concern for his safety during the stop, but he did seek a back-up officer
before beginning the search. We also acknowledge the argument that
reasonable suspicion could dissipate over the twenty-minute delay while waiting
for a back-up law enforcement officer. But as observed in State v. Storm, ___
N.W.2d ___, ___, 2017 WL 2822483, at *14 (Iowa 2017), the officer was
outnumbered, and “[w]hile they caused him no trouble, the next officer on the
roadside may not be so fortunate.” Accordingly, we find no basis to suppress the
evidence. We know of no authority that places a specific time constraint on a
legitimate search by an officer in furtherance of ensuring safety nor has Rose
cited any such authority. Because the vehicle was a business van with two
known occupants and the stop was in a remote area, we conclude it was



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reasonable to wait for a second officer to be on the scene before attempting a
protective search of the vehicle.
We conclude the traffic stop was not unconstitutionally prolonged and trial
and appellate counsel were not ineffective in failing to previously raise this issue.
Such an argument would have been meritless, and Rose has therefore failed to
establish trial and appellate counsel breached an essential duty or that Rose
suffered prejudice.

Outcome: