State of Iowa v. Cliff Allen Lowe

• Court: Court of Appeals of Iowa
• Decided: December 18, 2019
• Docket: 18-0899
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0899 Filed December 18, 2019

STATE OF IOWA, Plaintiff-Appellee,

vs.

CLIFF ALLEN LOWE, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Appanoose County, Lucy J.

Gamon, Judge.

Cliff Lowe appeals his conviction of third-offense possession of a

controlled substance, as a habitual offender. AFFIRMED.

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

Jennisch, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

SCOTT, Senior Judge.

Cliff Lowe appeals his conviction of third-offense possession of a

controlled substance, as a habitual offender. He claims his counsel rendered

ineffective assistance in failing to move for suppression of evidence obtained

following an allegedly illegal pretextual stop and subsequent inventory search of

a vehicle in which he was a passenger. He argues pretextual stops are illegal

under the Iowa Constitution and the inventory search violated both the United

States and Iowa Constitutions. He asks that we overrule supreme court

precedent and rule he has standing to challenge the seizure and search of a

vehicle in which he was a mere passenger.

We review both constitutional issues and claims of ineffective assistance

of counsel de novo. State v. Lilly, 930 N.W.2d 293, 298 (Iowa 2019). Lowe

“must establish by a preponderance of the evidence that ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’”

State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting State v. Harris, 891

N.W.2d 182, 185 (Iowa 2017)); accord Strickland v. Washington, 466 U.S. 668,

687 (1984). We “may consider either the prejudice prong or breach of duty first,

and failure to find either one will preclude relief.” State v. McNeal, 897 N.W.2d

697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa

2015)). A failure to register meritless arguments or motions does not amount to

ineffective assistance of counsel. See Lilly, 930 N.W.2d at 390; State v.

Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).

Our supreme court recently declined to overrule longstanding precedent

standing for the proposition that pretextual stops are permissible under the Iowa 3

Constitution. See State v. Brown, 930 N.W.2d 840, 846–54 (Iowa 2019); see

also State v. Haas, 930 N.W.22d 699, 702 (Iowa 2019) (describing the Brown

decision to be “consistent with precedent in Iowa”). This case also falls squarely

within longstanding federal and state precedent holding a mere passenger with

no ownership or possessory interest in a vehicle has no legitimate expectation of

privacy therein and therefore does not have standing to challenge the

constitutionality of a search. See Rakas v. Illinois, 439 U.S. 128, 148–50 (1978);

State v. Halliburton, 539 N.W.2d 339, 342–43 (Iowa 1995); see also Byrd v.

United States, 138 S. Ct. 1518, 1528 (2018) (reaffirming the Rakas holding “that

a passenger lawfully in an automobile may not . . . challenge a search unless he

happens to own or have a possessory interest in it.” (citation omitted)).

Had the issues been raised before the district court, the court would have

been required to follow both United States Supreme Court precedent interpreting

the federal constitution and our supreme court’s precedent interpreting the state

constitution, both of which foreclose Lowe’s claims under the facts of this case.

We find counsel was under no duty to pursue the meritless arguments and Lowe

was not prejudiced. We affirm Lowe’s conviction.

AFFIRMED.