State of Iowa v. Jasmaine R. Warren

• Court: Court of Appeals of Iowa
• Decided: May 13, 2020
• Docket: 19-0267
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0267 Filed May 13, 2020

STATE OF IOWA, Plaintiff-Appellee,

vs.

JASMAINE R. WARREN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

Jasmaine Warren appeals her criminal convictions following a bench trial.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Gina Messamer of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Vaitheswaran, Doyle, Tabor, Mullins,

Greer, Schumacher, and Ahlers, JJ. 2

MULLINS, Judge.

Jasmaine Warren appeals following her convictions of second-offense

operating while intoxicated (OWI) and driving with a revoked license. On appeal,

Warren challenges the sufficiency of the evidence supporting the OWI conviction

and argues her counsel rendered ineffective assistance in failing to seek

suppression of evidence on the basis that she was subjected to an unconstitutional

seizure.

I. Background Facts and Proceedings

At approximately 2:30 a.m. on May 4, 2018, Officer Jeremy Engle of the

Des Moines Police Department was on routine patrol when he observed a vehicle,

later determined to be driven by Warren, “to be accelerating at a high rate of

speed.” Engle turned around and followed the vehicle. Thereafter, Warren illegally

parked her vehicle, halfway in the roadway and halfway in a driveway of a

residence. Another officer in a separate police cruiser activated his overhead lights

and pulled in behind Warren. Engle pulled in behind that officer and made contact

with Warren, advising she could not park her vehicle where she did. 1 Engle

testified:

[Warren] seemed like she wanted to get out of the vehicle and get inside quickly. I made contact with her and I advised her that she could not park her vehicle that way. And I asked her if she had her license, registration, and proof of insurance. She walked to her car and grabbed her Iowa ID. At that time I smelled a strong odor of marijuana emitting from her vehicle. I did observe that her license said “identification only.” I asked her what the status was and she advised me it was suspended.

1 Most of Engle’s encounter with Warren was captured by his body camera. Video footage from the camera was admitted as evidence at trial. 3

She never provided a registration or insurance information. Upon questioning from

Engle as to why the vehicle smelled of marijuana, Warren reported she had

smoked earlier at work. She later admitted to consuming alcohol on the date in

question as well. Engle confirmed Warren’s license was revoked. Warren was

arrested and cited for second-offense OWI, driving with a revoked license, illegal

parking, and failure to provide proof of liability insurance. Warren was formally

charged by trial information with second-offense OWI and driving while revoked.2

Following a bench trial, she was found guilty as charged. Warren appealed

following the imposition of sentence.

II. Analysis

On appeal, Warren challenges the sufficiency of the evidence supporting

the OWI conviction and argues her counsel rendered ineffective assistance in

failing to seek suppression of evidence on the basis that she was subjected to an

unconstitutional seizure.

A. Sufficiency of the Evidence

As to the sufficiency-of-the-evidence claim, the State proceeded on two

theories—that Warren operated a motor vehicle while either “under the influence

of an alcoholic beverage or other drug or a combination of such substances” or

“any amount of a controlled substance [was] present in [her] person, as measured

in the person’s blood or urine.” Iowa Code § 321J.2(1)(a), (c) (2018). The court

found Warren guilty of OWI but did not specify which theory its verdict rested upon,

thus amounting to a general verdict. Warren argues the evidence was insufficient

2The record indicates she was separately charged with the other crimes in simple- misdemeanor cases. 4

to support the latter theory and her conviction must therefore be reversed. See,

e.g., State v. Myers, 924 N.W.2d 823, 827 (Iowa 2019) (“[I]f the pronouncement by

the district court is considered a general verdict based on a crime with multiple

bases for guilt, substantial evidence must support each alternative under the

statute.”).

The State agrees the evidence was insufficient under the latter theory and

the court rendered a general verdict.3 “Nevertheless, the State submits that

reversal of Warren’s conviction on such grounds is forbidden by the newly enacted

Iowa Code section 814.28,” which took effect July 1, 2019. See 2019 Iowa Acts

ch. 140, § 32. That provision provides:

When the prosecution relies on multiple or alternative theories to prove the commission of a public offense, a jury may return a general verdict. If the jury returns a general verdict, an appellate court shall not set aside or reverse such a verdict on the basis of a defective or insufficient theory if one or more of the theories presented and described in the complaint, information, indictment, or jury instruction is sufficient to sustain the verdict on at least one count.

Iowa Code § 814.28 (2019).

Judgment of conviction was entered and the sentence was imposed prior

to the statute’s effective date. The State submits the statute is remedial in nature

and is therefore entitled to retroactive application. First, the State argues the

language of the statute denotes a legislative intent for retroactive application,

highlighting the “appellate court” language in the statute. However, our supreme

3The district court’s analysis and verdict first recited the three alternatives under which the State had charged Warren. The State’s evidence at trial attempted to support two of the alternatives, but the court did not analyze each one separately or render a verdict on each. As noted above, the State concedes it was a general verdict. 5

court has rejected a similar notion that recently enacted statutes, Iowa Code

sections 814.6 and 814.7, which foreclose a right of appeal when a defendant

pleads guilty except in certain circumstances and forbid appellate courts from

considering ineffective-assistance-of-counsel claims on direct appeal, denote a

legislative intent for retroactive treatment. See State v. Macke, 933 N.W.2d 226,

235 (Iowa 2019) (“We conclude the absence of retroactivity language in sections

814.6 and 814.7 means those provisions apply only prospectively and do not apply

to cases pending on July 1, 2019.”).4 This court has similarly rejected the notion

that recently enacted legislation, Iowa Code sections 814.6A(1) and 822.3A(1),

which prevent any Iowa court, including appellate courts, from considering pro se

documents when a defendant is currently represented by counsel and prohibit the

filing and consideration of pro se documents in proceedings under chapter 822,

indicate a legislative intent for retroactive application. See, e.g., State v. Banks,

No. 18-1337, 2020 WL 110297, at *2 n.2 (Iowa Ct. App. Jan. 9, 2020); Campbell

v. State, No. 18-1052, 2020 WL 105086, at *1 n.1 (Iowa Ct. App. Jan. 9, 2020);

State v. Banks, No. 18-0721, 2020 WL 105078, at *1 n.1 (Iowa Ct. App. Jan. 9,

2020); State v. O’Connor, No. 18-0376, 2020 WL 109509, at *3 n.1 (Iowa Ct. App.

Jan. 9, 2020); State v. Syperda, No. 18-1471, 2019 WL 6893791, at *12 (Iowa Ct.

App. Dec. 18, 2019); Daniels v. State, No. 18-0672, 2019 WL 6894225, at *1 n.2.

(Iowa Ct. App. Dec. 18, 2019); State v. Kehoe, No. 18-0222, 2019 WL 6893771,

4 The State argues we are unable to consider Warren’s claim of ineffective assistance of counsel, discussed below. Macke states otherwise. See 933 N.W.2d at 232. 6

at *1 n.1 (Iowa Ct. App. Dec. 18, 2019); State v. Purk, No. 18-0208, 2019 WL

5790875, at *7 n.8 (Iowa Ct. App. Nov. 6, 2019).

Next, the State argues the statute provides a new remedy for the evil of

having convictions vacated when one alternative for conviction is invalid while

there is another alternative supported by sufficient evidence. However, the statute

also eliminates a remedy to defendants and is thus substantive and therefore not

entitled to retroactive treatment. See Macke, 933 N.W.2d at 232 (“[W]e have

refused to apply a statute retrospectively when the statute eliminates or limits a

remedy.” (quoting Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, 763

N.W.2d 250, 267 (Iowa 1985))). Even if the statute was remedial or procedural in

nature, the general rule, as recently reaffirmed by our supreme court, is that

“unless the legislature clearly indicates otherwise, ‘statutes controlling appeals are

those that were in effect at the time the judgment or order appealed from was

rendered.’” Id. at 228 (quoting James v. State, 479 N.W.2d 287, 290 (Iowa 1991)).

Section 814.28 lacks language clearly indicating a legislative intent for retroactivity.

The statute did not exist at the time judgment of conviction was entered against

Warren.

Applying the controlling statutes and court precedent in effect at the time of

judgment, the court’s general verdict and the unsupported theory for guilt require

reversal of Warren’s OWI conviction and a remand for a new trial on that count.

See, e.g., State v. Tyler, 873 N.W.2d 741, 754 (Iowa 2016).

B. Ineffective Assistance of Counsel

We turn to Warren’s claim her counsel was ineffective in failing to move for

suppression of evidence on the ground that she was illegally seized in violation of 7

her constitutional rights. Specifically, she argues counsel should have moved for

suppression on the basis that she was seized absent reasonable suspicion and

the seizure was impermissibly prolonged absent ongoing reasonable suspicion.

1. To Answer or Not

Given our remand for a new trial on count one, the dissent asserts we

should not address the ineffective-assistance-of-counsel issue, and we should not

address the suppression issue on this direct appeal. For the reasons stated below,

we believe it is appropriate and preferred that we address the ineffective-

assistance issue Warren raised.

We begin our analysis with reviewing a statute in effect at the time of entry

of judgment that directed appellate courts: “If an ineffective assistance of counsel

claim is raised on direct appeal from the criminal proceedings, the court may

decide the record is adequate to decide the claim or may choose to preserve the

claim for determination under chapter 822.” Iowa Code § 814.7(3) (2018).5 Our

supreme court has emphasized:

[S]ection 814.7(3) clearly gives the appellate court only two choices when an ineffective-assistance claim is raised on direct appeal: (1) “decide the record is adequate to decide the claim,” or (2) “choose

5 As touched on above, effective July 1, 2019, section 814.7 was amended to provide: An ineffective assistance of counsel claim in a criminal case shall be determined by filing an application for postconviction relief pursuant to chapter 822. The claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes, and the claim shall not be decided on direct appeal from the criminal proceedings. 2019 Iowa Acts ch. 140, § 31. The amendment does “not apply to a direct appeal from a judgment and sentence entered before July 1, 2019.” Macke, 933 N.W.2d at 228. 8

to preserve the claim for determination under chapter 822.” Iowa Code § 814.7(3). . . . . . . . If the defendant requests that the court decide the claim on direct appeal, it is for the court to determine whether the record is adequate and, if so, to resolve the claim. If, however, the court determines the claim cannot be addressed on appeal, the court must preserve it for a postconviction-relief proceeding, regardless of the court’s view of the potential viability of the claim.

State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). Our court has followed that

procedure. See, e.g., State v. Hollie, 854 N.W.2d 695, 698–99 (Iowa Ct. App.

2013) (concluding on direct appeal counsel was ineffective in failing to timely file a

motion to suppress a vehicle stop involving an alleged registration violation per

321.37 (a scheduled violation) when defendant had a temporary registration card

displayed and the officer’s sole reason for stopping her was “a sweeping suspicion

or hunch of criminal activity on the part of people in general”).

There are occasions in which our appellate courts choose to not address

an issue that has been properly presented—if a ruling is not necessary for

disposition of the appeal or if the issue could be adequately or more appropriately

addressed by a lower court on remand. This has happened in the context of

ineffective-assistance-of-counsel claims on direct appeal. In the case of State v.

Pals, the defendant was convicted of a single charge of possession of a controlled

substance and appealed to challenge the propriety of the district court ruling

denying his motion to suppress. 805 N.W.2d 767, 769 (Iowa 2011). He also

lodged a claim his counsel was ineffective for failing to file a motion to dismiss on

speedy-trial grounds. Id. at 771 n.1. On appeal, the supreme court reversed the

denial of the defendant’s motion to suppress and remanded for further proceedings

on the ground that his consent to search was involuntary under the Iowa 9

Constitution. Id. at 783–84. The court deemed it unnecessary to consider the

claim counsel was ineffective for failing to pursue dismissal on speedy-trial

grounds. Id. at 771 & n.1 (citing State v. Bogan, 774 N.W.2d 676, 684 (Iowa 2009)

(deciding to not address an ineffective-assistance-of-counsel claim for faulty jury

instructions when reversing on other grounds and remanding for a new trial, noting

the district court would have an opportunity on remand to instruct properly)).

Although the court in Pals did not explain its reason for declining to decide the

ineffective-assistance issue, it is likely because there is no deadline to file a motion

to dismiss on speedy-trial grounds and the argument could be raised on remand.

See Iowa R. Crim. P. 2.33(2); B. John Burns, Iowa Practice Series, Criminal

Procedure § 10.2(d) (Mar. 2020 update). Furthermore, the remand would provide

an opportunity for the State to develop a record concerning possible acquiescence

or waiver of speedy trial, if necessary for the court to address a motion to dismiss.

See State v. Taylor, 881 N.W.2d 72, 77–78 (Iowa 2016).

Unlike a motion to dismiss—the issue the Pals court chose to leave for the

district court to address—which has no filing deadline, a motion to suppress—the

issue we are considering—must be filed no later than forty days after arraignment,

absent a showing of good cause. See Iowa R. Crim. P. 2.11(2)(c), (4). We have

found no case in which a district court in a non-postconviction-relief case found

good cause based on ineffective assistance of counsel to allow a defendant to file

a motion to suppress after the motions deadline.6 We acknowledge the dissent

6We have, however, found a case in which the State appealed the district court’s grant of an extension of time to file a motion to suppress and the supreme court affirmed, reasoning: 10

submits State v. Jones, No. 05-0316, 2006 WL 133009, at *2 (Iowa Ct. App. Jan.

19, 2006), as support for its proposition that timeliness and good cause may be

addressed by the district court on remand, but we view the posture of that case

differently. In Jones, the defendant filed a motion to suppress after the motions

deadline. 2006 WL 133009, at *1. She argued to the district court that counsel

was ineffective in failing to timely file. Id. The district court “rejected the claim that

ineffective assistance of prior counsel could constitute good cause” for the delay.

Id. Jones appealed, arguing ineffective assistance of counsel constituted good

cause for the late filing. Id. Our court recognized counsel may be found ineffective

for failing to timely file a motion to suppress. Id. at *2 (citing State v. Hrbek, 336

N.W.2d 431, 436 (Iowa 1983) (concluding the record was adequate on appeal and

counsel was ineffective in failing to challenge voluntariness of inculpatory

statements but remanding to district court to have an evidentiary hearing to decide

whether such statements were voluntary)); see also State v. Rhiner, 352 N.W.2d

The district court considered the untimely motion due to the multiple changes of counsel and prior counsel’s failure to represent Ortiz properly. The district court knew that if Ortiz’s motion to suppress should have been granted and the court failed to consider it pretrial, any guilty verdict in Ortiz’s case may have been subject to reversal on an ineffective-assistance-of-counsel claim. It is the public policy of this state that litigation should be final at the earliest possible date. To avoid additional litigation in this matter the court did the proper thing by considering the motion rather than waiting for its merits to be determined in a postconviction relief proceeding. Accordingly, the district court did not abuse its discretion in hearing the motion under the circumstances of this case. State v. Ortiz, 766 N.W.2d 244, 250 (Iowa 2009) (emphasis added). The record in this case shows the criminal complaints were filed May 4, 2018, a public defender was appointed on May 14 and was replaced on May 18 by trial counsel, who represented Warren through trial on October 15 and until the filing of the notice of appeal. 11

258, 261 (Iowa 1984) (following Hrbek but deciding record was adequate on direct

appeal to consider the claim counsel was ineffective in failing to timely file a motion

to suppress).7 In Jones, our court concluded on appeal that trial counsel was not

ineffective because a motion to suppress, if it had been filed, would have had no

merit. 2006 WL 133009, at *3. The Jones court concluded the district court had

not abused its discretion in determining good cause did not excuse an untimely

motion to suppress, but it did not address whether a district court could have relied

on ineffective assistance of counsel to decide the good cause8 requirement for

avoiding waiver resulting from a late motion filing. See id. at *2.

The dissent cites State v. Divis, where a panel of this court reversed a

defendant’s conviction of second-degree robbery and remanded for a new trial,

concluding his counsel was ineffective in not arguing for exclusion of prejudicial

evidence. No. 15-1123, 2016 WL 4803749, at *1 (Iowa Ct. App. Sept. 14, 2016).

The panel declined to consider the defendant’s alternative claim that his counsel

was ineffective in failing to file a motion to suppress alleging an illegal search and

seizure. Id. at *1, *8. The panel took “no position on Divis’s ability to litigate the

suppression issue on remand.” Id. at *8 n.3. In State v. Johnson, cited in Divis, a

defendant charged with first-degree robbery filed a motion to suppress, challenging

7 At the time we decided Jones, like in our present case, an appellate court had the authority to determine the record was adequate to decide an ineffective- assistance claim or preserve it for postconviction relief. See Iowa Code § 814.7(3) (2005). 8 “Failure of the defendant to timely raise defenses or objections or to make

requests which must be made prior to trial under this rule shall constitute waiver thereof, but the court, for good cause shown, may grant relief from such waiver.” Iowa R. Crim. P. 2.11(3); see also Iowa R. Crim. P. 2.11(4) (providing filing deadlines). 12

the validity of a search warrant, which was denied by the district court for lack of

standing. 756 N.W.2d 682, 685 (Iowa 2008). Johnson appealed, and this court

reversed and remanded for a new trial based on Johnson’s challenge to a jury

instruction; we did not reach Johnson’s challenge to the denial of his motion to

suppress. Id.; see State v. Johnson, No. 05-0558, 2006 WL 1279119, at *1, *3

(Iowa Ct. App. May 10, 2006). Following his conviction after retrial, the defendant

appealed, challenging the court’s denial of his motion to suppress and the

constitutionality of the court’s limitations on standby counsel. Johnson, 756

N.W.2d at 686.9 Divis and Johnson are examples of cases in which this court has

reversed and remanded convictions without deciding suppression issues.

Thus, case law demonstrates that an appellate court can choose to not

address an ineffective-assistance claim on direct appeal when there is a reversal

and remand. But should we in this case? We assume this de facto judicial

exception to the legislative scheme of Iowa Code section 814.7(3) has parameters.

We have asserted above that exception has occurred in cases in which ruling on

the issue is not necessary for disposition of the appeal or if the issue could be

adequately or more appropriately addressed by a lower court on remand.

In considering whether we should decide the issue on direct appeal, our first

statutory directive is to consider whether the record is adequate on appeal to

decide the issue. See Iowa Code § 814.7(3). The dissent asserts the record is

9On appeal from his retrial, the supreme court decided res judicata did not prevent Johnson from again challenging the denial of his motion to suppress but found the district court’s failure to rule on the motion to suppress was harmless and the search warrant was valid. Johnson, 756 N.W.2d at 686–87. Johnson did not raise an ineffective-assistance-of-counsel claim in either of his appeals. 13

not adequate because there are unanswered factual questions. The question,

though, is not whether more facts could have been developed or a more thorough

record could have been made. The legislature directed us to determine whether

the record is adequate. On our careful review of the record, we have concluded it

is, and we will address the record more completely in the analysis of the

suppression issue later in this opinion.10

Notwithstanding the adequacy of the record, which is dispositive of our

authority to decide the issue, and in consideration of the case law discussion

above, we have considered whether the issue could be more adequately or more

appropriately addressed on remand. There are two factors that weigh against

leaving the issue for remand. One is the unanswered question as to what a district

court is to do with an ineffective-assistance-of-counsel claim for failure to timely

file a motion to suppress11 on remand. The district court has no authority in a non-

postconviction-relief case to apply the Strickland analysis necessary for an

ineffective-assistance claim. See Iowa Code § 814.7(1) (“An ineffective assistance

of counsel claim in a criminal case shall be determined by filing an application for

postconviction relief pursuant to chapter 822, except as otherwise provided in this

section.”), (3) (allowing appellate courts to consider ineffective-assistance claims

10 The cases that we have reviewed in which an appellate court has chosen to not decide an ineffective-assistance-of-counsel claim, and left it unresolved on a reverse and remand, do not indicate whether the record was adequate to decide the claim. If the record was not in fact adequate, and the case was reversed and remanded on other grounds, there would be no need to preserve for possible postconviction relief as there would not yet have been a final judgment. 11 The forty-day deadline for filing a motion to suppress expired prior to the first

trial. See Iowa R. Crim. P. 2.11(2)–(4). Failure to have filed the motion to suppress constituted a waiver of the right to file such a motion. Iowa R. Crim. P. 2.11(3). 14

in a direct appeal from criminal proceedings if the record is adequate). We have

no case law that guides our determination—or a determination by the district

court—of whether it would be an abuse of discretion for the district court to find

good cause to waive the time deadline for filing a motion to suppress 12 under the

circumstances of this case. We acknowledge under certain facts the district court

might reasonably determine acts or omissions of counsel constitute good cause

for failure to timely file a motion to suppress, but our cases show general

inadvertence by counsel or client when either has the factual information

necessary to form the basis for a motion to suppress does not amount to good

cause. See, e.g., State v. Ball, 600 N.W.2d 602, 605 (Iowa 1999) (finding good

cause lacking where counsel or client were at least apprised of the factual

information that would form the basis for a pretrial motion to suppress); State v.

Cole, 295 N.W.2d 29, 39 (Iowa 1980) (same); State v. Courts, No. 19-0074, 2020

WL 1548496, at *3 (Iowa Ct. App. Apr. 1, 2020) (“Neither Courts’s initial failure to

take an interest in her own defense nor defense counsel’s failure to investigate the

case constitute “good cause” for missing the filing deadline.”); Hollie, 854 N.W.2d

at 697 (agreeing with district court that “counsel’s tardiness in realizing the viability

of the suppression issue alleged in its motion” did not amount to good cause);

Jones, 2006 WL 133009, at *2 (finding no good cause when sole alleged reason

12Failure to timely file a motion to suppress “shall constitute waiver thereof, but the court, for good cause shown, may grant relief from such waiver.” Iowa R. Crim. P. 2.11(3). Whether good cause exists is a discretionary decision, and “[f]actors considered in the application of this standard include the adequacy of the defendant’s reasons for failure to comply with applicable rules of procedure and whether the State was prejudiced as a result.” State v. Eldridge, 590 N.W.2d 734, 736 (Iowa 1999). 15

for delay was ineffective assistance of counsel); cf. Peoples Nat. Gas Co. v. City

of Hartley, 497 N.W.2d 874, 875–76 (Iowa 1993) (holding “counsel’s inadvertence

and oversight do not constitute ‘good cause’”).

Furthermore, the district court’s analysis of good cause might be influenced

by an evaluation of the ultimate merits of the issue presented. But that would

require the district court to engage in a Strickland prejudice analysis. As our

analysis of the suppression issue below illustrates, the seizure question in this

case is one of first impression, having not previously been determined by an

appellate court in Iowa. Thus, a remand would leave the district court with little or

no direction on the issues likely to be presented. Also, if Warren were unsuccessful

on either the timeliness issue or the ultimate suppression issue, a further appeal

and/or a postconviction-relief action would likely follow; thus requiring more judicial

resources both in the district and appellate courts. See Ortiz, 766 N.W.2d at 250

(“It is the public policy of this state that litigation should be final at the earliest

possible date.”).

Another wrinkle present here distinguishes this case from those discussed

above and militates against deferring the issue to the district court instead of us

answering the call of section 814.7(3). Warren was convicted of two crimes: OWI

and driving while barred.13 Evidence supporting both of those crimes was obtained

after the allegedly unconstitutional seizure occurred. We have reversed Warren’s

conviction on count one, but she remains convicted on count two. If we were to

13In State v. Pals, summarized more thoroughly above, the defendant was convicted of one offense, and the supreme court reversed and remanded the case, choosing to not address a claim of ineffective assistance of counsel for failing to challenge an alleged speedy-trial violation. 805 N.W.2d at 771 n.1. 16

find counsel was ineffective as alleged, then Warren would likewise be entitled to

a new trial on count two. If we were to find counsel was not ineffective, the

conviction on count two is final and only count one requires a retrial on the merits.

If we were to elect to not address the suppression issue and remand the OWI

conviction to the district court, then not only would the suppression issue and the

timeliness issue be included in the remand, we would be required to preserve

Warren’s ineffective-assistance claim on the driving while revoked conviction for a

possible postconviction action in a second case, adding to and complicating future

litigation. Ortiz, 766 N.W.2d at 250.

Thus, we are not convinced we should decline to exercise our authority

under section 814.7(3) if the record is adequate to decide the claim on direct

appeal. Upon our de novo review, we find the record adequate to decide the claim

and proceed to the merits.

2. The Merits

To succeed on her ineffective-assistance-of-counsel claim, Warren must

establish “(1) that counsel failed to perform an essential duty and (2) that prejudice

resulted.” State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020); 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 State v. Lilly, 930 N.W.2d

293, 298 (Iowa 2019); State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).

We thus turn to whether a motion to suppress would have been meritorious 17

if pursued on the grounds argued on appeal. Warren generally argues she was

subjected to an unconstitutional seizure. We likewise review constitutional

suppression issues de novo. State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019).

“[W]e independently evaluate the totality of the circumstances as shown by the

entire record.” State v. Smith, 919 N.W.2d 1, 4 (Iowa 2018) (alteration in original)

(quoting State v. White, 887 N.W.2d 172, 175 (Iowa 2016)). “Each case must be

evaluated in light of its unique circumstances.” Fogg, 936 N.W.2d at 667 (quoting

State v. Coffman, 914 N.W.2d 240, 244 (Iowa 2018)).

“The Fourth Amendment [to] the United States Constitution,” as applied to

the states by the Fourteenth Amendment, “and article I, section 8 of the Iowa

Constitution protect individuals against unreasonable searches and seizures.”

State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001); accord State v. McNeal, 867

N.W.2d 91, 99 (Iowa 2015). Evidence obtained following a violation of these

constitutional protections is generally inadmissible at trial. See Wong Sun v.

United States, 371 U.S. 471, 484–85 (1963); Mapp v. Ohio, 367 U.S. 643, 654–55

(1961); Naujoks, 637 N.W.2d at 111.

Warren essentially argues Engle had no basis to make contact with her

because he observed “a completed parking infraction” as opposed to an ongoing

traffic violation. We start our analysis with a threshold question: Who is liable for

a parking violation? We find the answer in statutory provisions. “No person shall

stop, stand or park a vehicle” in any one of fifteen statutorily specified places,

except under specified circumstances, none of which are applicable here. Iowa

Code § 321.358 (emphasis added). A “‘[p]erson’ means every natural person,”

including various entities. Id. § 321.1(52). An “‘[o]perator’ or ‘driver’ means every 18

person who is in actual physical control of a motor vehicle upon a highway.”14 Id.

§ 321.1(48).

Engle saw Warren drive a car, park it perpendicular to a road, and exit the

vehicle. He believed she had parked the car illegally pursuant to section

321.358.15 She is a person who was the driver of a motor vehicle on a highway

who parked a vehicle. If the car was parked in violation of section 321.358 and

she was the person who parked the car, she violated a criminal statute directive:

“no person shall . . . park a vehicle” in a proscribed place. Id. § 321.358. The

clarity of those provisions is not diminished by the possibility an owner of a vehicle

may have responsibility for a parking violation under certain circumstances. See

id. § 321.484(2). This liability scheme makes sense. If the driver is at the illegally

parked car or easily and readily identifiable, liability should and does rest with the

driver. In reality, illegally parked cars may be observed by law enforcement officers

when no driver is found in the area. On such occasions, by simply “running the

license plate” an officer can identify the registered owner and leave a parking

14 “‘Street’ or ‘highway’ means the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular traffic.” Iowa Code § 321.1(78). 15 On appeal, Warren’s ineffective-assistance claim rests on her contentions that

trial counsel failed to file a motion to suppress: “The completed parking violation did not authorize Officer Engle to seize Ms. Warren and question her,” and the stop was unlawfully extended. She does not claim trial counsel should have challenged whether there was a parking violation. Warren’s own recitation of the facts states: “Ms. Warren pulled her vehicle halfway into a driveway—leaving the rear portion of the vehicle sticking out into the street—exited her car and walked away from the vehicle towards a residence.” Footage from the officer’s body camera confirms that. There is no dispute she violated Iowa Code section 321.358. Thus, there is no need for further record development concerning how or where the car was parked. 19

citation in the name of the owner on the windshield of the illegally parked car.16

Warren seems to suggest that should have been Engle’s course of action.

Officer Engle first approached Warren concerning a parking violation. A

parking violation is a simple misdemeanor, criminal offense. See id. § 321.482.

The inclusion of certain simple misdemeanor offenses in the statutory schedule of

fines under sections 805.8 and 805.8A was done by the legislature in order to

make uniform and simplify the punishment. See State v. Butler, 706 N.W.2d 1, 3

(Iowa 2005); see also City of Sioux City v. Jacobsma, 862 N.W.2d 335, 354 (Iowa

2015). Scheduled violations of state law under section 805.8A are simple

misdemeanor criminal offenses. Furthermore, a law enforcement officer has the

authority to arrest the offender for a scheduled violation of chapter 321 but may

issue a citation in lieu of arrest. See State v. Orozco, 573 N.W.2d 22, 24–25 (Iowa

1997); see also Iowa Code § 805.6.17

The case of Davis v. City of Albia illustrates an application of the foregoing

principles:

An arrest without a warrant may be made by a peace officer for a public offense committed in the officer’s presence. Iowa Code § 804.7. “A public offense is that which is prohibited by statute and is punishable by a fine or imprisonment.” Id. at § 701.2. A peace officer may issue a citation in lieu of a warrantless arrest, which is common practice where a scheduled fine is the penalty, but is not required to. Id. at § 805.1(1). See State v. Orozco, 573 N.W.2d 22, 25 (Iowa 1997) (peace officer has authority to make an arrest for a scheduled traffic violation). Whether to make an arrest instead of issuing a citation is within the peace officer’s discretion. See State v. Adams, 554 N.W.2d 686, 690 (Iowa 1996).

16 We need not and do not decide if, under the circumstances of this case, an owner would be liable for paying a fine upon issuance of a citation to the owner if the owner was not the person who parked the car illegally. 17 As a practical matter, parking violations typically result in issuance of a citation. 20

Davis’ truck was parked in a persons with disabilities parking space. The truck had a rearview mirror in the “driver’s compartment.” Davis did not hang the placard from the mirror as required by the DOT rule, but put it on the dashboard. There was thus probable cause to believe Davis had committed the misdemeanor public offense of improper use of a persons with disabilities parking permit. The offense occurred in [the officer’s] presence and he could therefore make a warrantless arrest of Davis without violating either Iowa law or the Fourth Amendment.

434 F. Supp. 2d 692, 703 (S.D. Iowa 2006) (involving a suit alleging unlawful arrest

and excessive force).

Iowa has no case law directly on point with the facts of this case, so we will

examine cases from other jurisdictions for guidance. Warren cites two cases from

other jurisdictions in support of her position that “parking violations do not supply

reasonable suspicion or probable cause for a seizure.” Both of those cases are

readily distinguishable. The first contemplates a situation in which law

enforcement observed a commercial vehicle illegally parked in the fire lane of a

mall and, instead of placing a citation on the unattended vehicle, waited for the

owner to return and personally serve him with a citation. State v. Medlar, 638

N.E.2d 1105, 1105–06 (Ohio Ct. App. 1994). When the driver returned, the officer

tried to get his attention by sounding an air horn and shining a spotlight. Id. at

1106. The driver did not notice, and he got in the vehicle and drove away. Id. The

officer followed the vehicle and initiated a traffic stop; the driver was ultimately

charged with driving under the influence. Id. The Ohio Court of Appeals concluded

that waiting for the parking offender was unreasonable because the officer could

have simply issued a citation and placed it on the windshield. See id. at 1109–10.

The Ohio Court of Appeals has itself distinguished Medlar from a situation

in which an illegally parked vehicle is occupied, concluding an encounter was 21

appropriate when an officer observed an occupied vehicle engaging in a parking

violation. State v. Eason, 69 N.E.3d 1202, 1210 (Ohio Ct. App. 2016), appeal

denied, 149 Ohio St. 3d 1406 (Ohio 2017). In that case, an officer observed a

vehicle in violation of an overnight parking ban. Id. at 1208. The vehicle was

running, the driver’s side door was ajar, and an individual was seated in the driver’s

seat. Id. at 1205. Officers encountered the individual, who was sleeping, woke

him up, and asked him to step out of the vehicle, after which the officers observed

signs of impairment. Id. at 1205–06. Following standard field sobriety testing and

an inventory search of the vehicle, the defendant was charged with multiple crimes.

Id. at 1206. On appeal following the denial of his motion to suppress, the defendant

argued the officers had no basis to remove him from his vehicle because his

violation of the overnight parking ban only authorized the officers to issue a parking

violation notice and the infraction did not warrant further investigation. Id. at 1207–

08. The court of appeals concluded the officer’s observation of the parking

violation “served as a lawful basis to stop the vehicle” and justified the officers’

request that the defendant exit the vehicle. Id. at 1210. The court distinguished

the situation from Medlar, noting waiting for the driver of an unoccupied vehicle

when a citation could be left on the car is unreasonable, but encountering an

individual who is observed to have committed the parking violation is not. Id. at

1210–11.

Similarly, in State v. Jones, the Ohio Court of Appeals considered a situation

in which an officer observed an illegally parked vehicle with the rear driver’s side

door open and someone’s “legs hanging out.” No. 92820, 2009 WL 3490947, at

*1 (Ohio Ct. App. Oct. 29, 2009). The officer pulled alongside the vehicle to “make 22

sure the person was okay” or “talk to him about the violation.” Id. While speaking

with the subject, the officer observed contraband. Id. The defendant was charged

with drug offenses. See id. at *3. On appeal following the denial of his motion to

suppress, the defendant argued a parking violation was an insufficient basis for

the officer to encounter him. Id. at *4. The court of appeals disagreed concluding,

“The fact that it was a parking violation, and not a traffic violation, is a distinction

without a difference.” Id. at *5.

The cases go on. In State v. Nevins, the Ohio Court of Appeals considered

a situation in which an officer observed an illegally parked vehicle, activated his

emergency lights, and pulled in behind the vehicle with the intention of issuing a

parking ticket. No. 15-1968, 1997 WL 231198, at *1 (Ohio Ct. App. May 9, 1997).

As he was pulling up, “the car started to pull off,” so the officer activated his siren,

upon which the vehicle immediately stopped. Id. The officer approached, advised

of the reason for the stop, and asked for the motorist’s driver’s license, which the

motorist could not provide. Id. The officer removed the driver from the vehicle and

patted him down, “felt something hard in one of his pockets,” and placed the

defendant in his cruiser, being under arrest for failure to display a valid license. Id.

When backup arrived, the defendant was removed from the cruiser and crack

cocaine was located in his pocket. Id. An inventory search uncovered more of the

substance. Id. The district court concluded the parking violation did not provide

probable cause for an encounter and granted the defendant’s motion to suppress.

Id. at *2. The court of appeals reversed, noting the officer’s observation of the

parking violation provided the officer probable cause to stop the defendant. Id. at

*3. 23

In Flores v. City of Palacios, an officer sought to detain a motorist for parking

illegally. 381 F.3d 391, 393 (5th Cir. 2004). The officer shined a spotlight on the

vehicle, several people fled, and the driver drove away. Id. She was eventually

stopped and arrested for evading detention. Id. The driver sued the city for, among

other things, unlawful arrest. Id. The district court denied summary judgment on

the claim. Id. On appeal, the plaintiff argued “her arrest for evading detention was

unconstitutional because [the officer] did not have reasonable suspicion to detain

her in the first place.” Id. at 402. The Fifth Circuit disagreed, concluding the

parking violation provided the officer with authority to detain her. Id. at 403. The

cases concluding parking violations are sufficient to warrant a seizure go on and

on. See, e.g., United States v. Choudhry, 461 F.3d 1097, 1101 (9th Cir. 2006)

(“[T]he parking violation justified the investigatory stop of [the] vehicle.”), cert.

denied, 549 U.S. 1236 (2007); United States v. Copeland, 321 F.3d 582, 593–94

(6th Cir. 2003) (noting “an office has probable cause to stop a driver in the course

of a parking violation”); United States v. Thornton, 197 F.3d 241, 248 (7th Cir.

1999) (rejecting claim that a parking violation is not a crime and is therefore

insufficient to establish probable cause), cert. denied, 529 U.S. 1022 (2000);

Herring v. State, 16 A.3d 246, 255 (Md. Ct. Spec. App. 2011) (“We believe a

parking violation to be at least the functional equivalent to the stop of a moving

vehicle in violation of the motor vehicle laws.”); People v. Ingram, 312 N.W.2d 652,

654 (Mich. 1981) (concluding officer’s request for defendant’s driver’s license for

purpose of issuing parking citation was reasonable).

Here, different from Medlar and more similar to the other cases discussed,

Engle physically observed Warren illegally park her vehicle, and Warren remained 24

in the immediate vicinity of her illegally parked vehicle when Engle made contact

with her and told her she could not park there. The unreasonableness of the police

conduct in Medlar flowed from the officer lying in wait, not the nature of the

violation.

The second case cited by Warren also involved an unattended vehicle

observed to be illegally parked by a parking monitor. See State v. Holmes, 569

N.W.2d 181, 182 (Minn. 1997). After discovering seven unpaid parking tickets on

the vehicle, the monitor called for the vehicle to be towed pursuant to Minnesota

law. Id. Before the tow truck arrived, the vehicle’s occupant returned and asked

that the vehicle not be towed. Id. at 182–83. The monitor refused and directed

the defendant to retrieve his belongings from his car. Id. at 183. He was

cooperative and did so but, because the monitor felt intimidated, she called for

police assistance. Id. The officer who arrived thereafter asked for the defendant’s

identification, subjected him to a pat down, placed him in a locked police cruiser,

and ultimately searched his vehicle, all after the monitor had already issued a

parking citation. Id. at 183–84. The Minnesota Supreme Court found the parking

violation was an insufficient basis for seizing the defendant and searching his

vehicle because it all occurred after the citation was issued. Id. at 185, 189. We

find Holmes inapplicable to the case at hand. It merely stands for the proposition

that a police encounter must end after the reason for it is completed, a now

fundamental principle in search and seizure jurisprudence. See, e.g., Rodriguez

v. United States, 575 U.S. 348, 350 (2015) (“[A] police stop exceeding the time

needed to handle the matter for which the stop was made violates the

Constitution’s shield against unreasonable seizures.”); In re Prop. Seized from 25

Pardee, 872 N.W.2d 384, 392 (Iowa 2015) (“Because addressing the infraction is

the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at]

purpose.’” (alteration in original) (citation omitted)). It does not stand for the

proposition, Warren’s general argument on appeal, that parking violations, as

opposed to traffic violations, are legally insufficient to justify a seizure. See, e.g.,

United States v. Hester, 910 F.3d 78, 88 n.6 (3d. Cir. 2018) (“[T]he nature of the

violation—whether traffic or parking—[is] merely a factor among many at

issue . . . .”); Haynes v. State, 937 N.E.2d 1248, 1252–53 (Ind. Ct. App. 2010)

(distinguishing Holmes and concluding a parking violation is a sufficient basis to

conduct a seizure where an illegally parked car drives away before the officer can

issue a ticket), appeal denied, 950 N.E.2d 1196 (Ind. 2011); Rodell v. Comm’r of

Public Safety, No. A03-283, 2003 WL 22787606, at *1–2 (Minn. Ct. App. Nov. 25,

2003) (same), appeal denied, (Feb. 17, 2004); see also United States v. Johnson,

874 F.3d 571, 573–74 (7th Cir. 2017) (noting Whren “applies to parked as well as

moving vehicles, and to parking violations as well as moving violations”), cert.

denied, 139 S. Ct. 58 (2018). Nor do the cases stand for the proposition there can

be no contact for a “completed parking violation.”

Here, as noted, Warren was in the immediate vicinity of her illegally parked

vehicle when Engle made contact with her and told her she could not park there.

We find the encounter was supported by a reasonable basis for the purpose of

Engle advising Warren of the illegal nature of her parking.

Warren goes on to argue that, after advising her of the reason for the

encounter, Engle impermissibly prolonged the seizure by asking for her license,

registration, and proof of insurance, his receipt of which was allegedly 26

“unnecessary for the enforcement of the completed violation.” She argues the

“violation could have been enforced by way of a citation placed on the vehicle.”

The law is clear that when the reason for a seizure is resolved and there is not a

continuing basis for reasonable suspicion, it is constitutionally required that the

subject be allowed to go his or her way without further ado. State v. Coleman, 890

N.W.2d 284, 301 (Iowa 2017). The dissent cites Coleman and questions, if the

officer could have placed a citation on the vehicle and walked away, then why was

there a continuing basis for the stop?

While we agree issuing a citation in the manner argued by Warren was

doable, neither Warren or the dissent point us to authority that the argued

procedure for enforcement was constitutionally or statutorily required, or that citing

the owner should be preferred over citing the driver who actually committed the

offense observed by a law enforcement officer. Engle had sufficient grounds to

issue a citation. He could have verified the owner of it in his system and issued a

citation to that person and left it on the car. It was certainly possible that Warren

was not the owner of the vehicle. Having witnessed her illegally park the vehicle,

it was certainly not unreasonable for Engle to request Warren’s identification to

issue the citation in her name. In fact, having observed Warren illegally park the

vehicle, Engle had statutory authority to arrest Warren. See Iowa Code § 804.7(1),

(2); Orozco, 573 N.W.2d at 25. Under the unique circumstances of this case, we

find Engle’s request for Warren’s identification and the continuing seizure for that

purpose was reasonable, which is all that is constitutionally required. See U.S.

Const. Amend. IV; Iowa Const. art. I, § 8. Furthermore, additionally requesting 27

Warren’s registration and proof of insurance did not impermissibly prolong the

encounter.

Upon Warren opening her car door for the purpose of retrieving her

identification, Engle immediately smelled marijuana, thus providing a reasonable

ground for investigating additional criminal activity and a continuing basis for the

seizure. In addition, when she produced her identification card to Engle, it

indicated she did not have valid driving privileges and her privileges to drive had

been suspended or revoked, thus also supporting a continuing basis for the

We conclude filing a motion to suppress based on the arguments urged on

appeal would have been meritless and counsel was not ineffective as alleged. We

expressly do not conclude that every police encounter flowing from a parking

violation will meet the constitutional requirement of reasonableness. We

acknowledge the dissent’s concern for the possibility of “sweeping intrusions” by

law enforcement in applying Whren to parking violations, but we find the conduct

in this case satisfies the constitutional-reasonableness requirement.

III. Conclusion

We reverse Warren’s OWI conviction and remand the matter for a new trial

on that count. We find trial counsel was not ineffective as alleged and thus affirm

Warren’s conviction of driving while revoked.

All judges concur except Vaitheswaran, J., who concurs in part and dissents

in part, and Tabor and Doyle, JJ., who also concur in part and dissent in part. 28

VAITHESWARAN, Judge (concurring in part and dissent in part)

I concur in part and dissent in part. I concur in Part A of the majority opinion.

I dissent from Part B of the majority opinion. I would decline to reach the

ineffective-assistance-of-counsel issue for the reasons stated in footnote 18 of the

second partial dissent. 29

TABOR, Judge (concurring in part and dissenting in part)

Can a parking violation justify a peace officer in seizing a motorist outside

her car and conducting an investigation? Warren faults her counsel for not testing

that proposition at trial. The majority rejects her claim of ineffective assistance,

finding nothing to suppress because the officer acted reasonably under the Search

and Seizure Clauses of the U.S. and Iowa Constitutions. I respectfully dissent on

the ineffective-assistance-of-counsel issue.18 In my view, it is ill-advised to reject

Warren’s complaint on direct appeal—and, in doing so, decide a question of

18 First, I disagree with the majority that the “preferred” method for addressing Warren’s ineffective-assistance claim is rejecting it on direct appeal. True, Iowa Code section 814.7(3) (2018) offers two choices for resolving ineffective- assistance claims: decide on direct appeal or preserve for postconviction relief (PCR). But here we have a third option. Because we remand for a new trial on the OWI count, we need not address whether counsel should have moved to suppress evidence of the seizure. See State v. Pals, 805 N.W.2d 767, 771 n.1 (Iowa 2011) (declining to address counsel’s failure to move for speedy-trial dismissal because court reversed on other grounds); State v. Divis, No. 15-1123, 2016 WL 4803749, at *8 n.3 (Iowa Ct. App. Sept. 14, 2016) (declining to reach claim alleging counsel should have moved to suppress because court reversed on evidentiary grounds). But if—as the majority contends—those cases are not persuasive here, the better approach would be to preserve the issue for PCR. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (“We will address on direct appeal claims of ineffective assistance of counsel only if we determine the development of an additional factual record would not be helpful and these elements can be decided as a matter of law.”). The majority cites State v. Hollie, as an example of our court reaching a suppression issue, raised in the context of ineffective assistance, on direct appeal. 854 N.W.2d 695 (Iowa Ct. App. 2013). But in Hollie trial counsel moved to suppress and the district court held a suppression hearing. 854 N.W.2d at 697. Counsel’s ineffectiveness was the untimely filing of the meritorious motion. Id. at 698. Unlike Hollie, Warren had no chance to make a record specific to the suppression issues. As for the driving-while-revoked conviction, Warren may address counsel’s performance in relation to that offense in a PCR action. Nothing prevents bifurcated treatment of the convictions. In fact, if this case had been appealed after July 1, 2019, we would have been without statutory authority to address the ineffective-assistance claim on direct appeal. See State v. Trane, 934 N.W.2d 447, 464–65 (Iowa 2019) (discussing amendment to section 814.7(3)). 30

first impression in Iowa—without a full airing of the facts bearing on the

suppression challenge.19

But if compelled to decide the question on the record we do have, I would

find Warren proved by a preponderance of the evidence that her counsel breached

a duty by not moving to suppress and prejudice resulted. “Subject to a few

carefully drawn exceptions, warrantless searches and seizures are per se

unreasonable.” State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). “The State has

the burden to prove by a preponderance of the evidence” that Warren’s seizure

was justified. Id.; State v. Baker, 925 N.W.2d 602, 610–11 (Iowa 2019). The State

cannot satisfy its burden: Warren’s parking violation did not authorize police to

seize her in place of issuing a ticket.

Just to be clear at the outset, police did seize Warren. Cf. State v. Fogg,

936 N.W.2d 664 (Iowa 2019) (finding no seizure where officer did not activate

emergency lights or engage in “authoritative behavior”). Neither the State nor the

majority contends otherwise. And that seizure had nothing to do with her driving.

True, Officer Engle testified at the bench trial that he first noticed her car

“accelerating at a high rate” of speed. But he acknowledged on cross examination

she was not speeding. Officer Engle did not articulate that Warren violated any

traffic law or committed any other crime. Yet two police cars arrived at the scene.

Their flashing emergency signals bathed the officers’ encounter with Warren in

19 The majority’s concern about timeliness (or good cause for untimeliness) of a motion to suppress under Iowa Rule of Criminal Procedure 2.11(4) may be addressed by the district court on remand. See generally State v. Jones, No. 05- 0316, 2006 WL 133009, at *2 (Iowa Ct. App. Jan. 19, 2006) (entertaining possibility that ineffective assistance of prior counsel could be good cause for untimely motion to suppress). 31

alternating red and blue light, as the officers circled her car, using flashlights to

look inside the windows.

Our view of their investigation emerges from Officer Engle’s body camera

footage, which the State offered into evidence at the bench trial. The video starts

off with no sound: Warren is standing outside her closed car door, holding open

her wallet.20 An officer extracts her identification card. The officers apparently ask

Warren if she has used marijuana, because when the audio begins she answers:

“Yeah we smoked, at least I’m honest.” Officer Engle then asks for her registration

and insurance. At this point, Warren opens the driver’s side door and reaches

across the front seat to find those documents in the glove box. As she does so,

she says: “[I]t does smell like weed.” The officers then launch their OWI inquiry.

On this record, because the officer could have issued a parking ticket

without seizing Warren, trial counsel was ineffective in not moving to suppress

evidence discovered during the investigation that followed that initial seizure. 21 As

Warren urges on appeal, the Minnesota Supreme Court’s analysis in State v.

Holmes is apt. 569 N.W.2d 181 (Minn. 1997). Holmes held “a police officer who

20 Officer Engle’s trial testimony is somewhat at odds with the video footage. He testified Warren walked to her car and “grabbed her Iowa ID.” But the video shows Warren has her ID and the car door is closed until the officers ask for her registration and proof of insurance. The order of the questioning matters to the suppression issues, which is why a more complete record is necessary to decide this matter fairly. 21 Case law from Iowa, as well as other jurisdictions, should have alerted counsel

this suppression issue was “worth raising.” See State v. Brown, 930 N.W.2d 840, 855 (Iowa 2019); State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982) (explaining counsel must exercise reasonable diligence in finding error which includes consulting cases from other jurisdictions). 32

merely has reasonable suspicion that a parking violation has occurred cannot

seize an individual for the purpose of investigation.” Id. at 185.

The majority rejects Holmes, reasoning it “stands for the proposition that a

police encounter must end after the reason for it is completed.” That reading is too

truncated. When read in full, the language in Holmes is broader. The Minnesota

court noted: “[P]olice officers typically enforce parking violations by applying a

ticket to the parked car.” Id. And it advised:

A police officer who has probable cause to believe that a person has committed a parking violation can stop the person only if the stop is necessary to enforce the violation, for example, if a person is attempting to drive off with an illegally parked car before the officer can issue the ticket.

Id. The logic in Holmes applies here. Stopping Warren was unnecessary to

enforce the parking violation.

Plus, cases on the permissible scope of investigations should also have

sparked a suppression motion. See, e.g., Rodriguez v. United States, 575 U.S.

348, 350 (2015); In re Pardee, 872 N.W.2d 384, 396 (Iowa 2015); State v.

Coleman, 890 N.W.2d 284, 301 (Iowa 2017). Collectively, these cases prohibit

officers from extending an investigative stop beyond the time needed to handle

their core mission. Officer Engle’s stated mission was to enforce a parking

violation. Checking on Warren’s license, registration, and insurance was

unreasonable because it exceeded that mission.

Again to be clear, neither the State nor the majority rely on reasonable

suspicion that criminal activity was afoot based on the totality of circumstances

confronted by the officers when they first seized Warren. Rather, the entire

justification for the seizure is enforcement of a parking violation. See Iowa Code 33

§ 321.358(13) (prohibiting a person from stopping or parking a vehicle “at any

place where official signs prohibit stopping or parking”).22 This singular rationale

separates Warren’s case from a federal case cited by the majority, United States

v. Hester, 910 F.3d 78, 88 n.6 (3d Cir. 2018) (explaining “nature of the violation—

whether traffic or parking—was merely one factor among many at issue, and we

do not today address whether a mere parking violation would be sufficient to

support reasonable suspicion”). In Hester, the court found an officer had

reasonable suspicion to detain passengers in a vehicle because it was illegally

idling near a crosswalk in front of a store with a known history of narcotics activity,

close to midnight, in a high-crime area of Newark. 910 F.3d at 87–88. The officer

did not articulate similar factors here.

Unlike Hester, the majority holds Officer Engle’s initial seizure of Warren

was “supported by a reasonable basis for the purpose of Engle advising Warren

of the illegal nature of her parking.” At the same time, the majority acknowledges

the officer could have verified the owner of the vehicle, issued a citation to that

person, and left it on the car. So why was the seizure reasonable?

The State contends the seizure was reasonable because Officer Engle had

probable cause to believe Warren violated section 321.358(13).23 The State relies

on United States v. Johnson for the proposition that a parking violation—like any

minor traffic violation—provides probable cause to stop a motorist. See 874 F.3d

22 Again emblematic of our undeveloped record, no evidence supports a finding that “official signs” prohibited parking on this residential street. On the video, Warren tells the officers she planned to go inside the house and ask her cousin to move his truck so she would have room to park in the driveway. 23 The officer issued Warren a citation for this scheduled violation, but the State

later dismissed the charge. 34

571 (7th Cir. 2017). The Johnson majority upheld a seizure when “the car was

stopped 7 or 8 feet from a crosswalk” and issuing a ticket necessarily entailed “a

brief seizure of the car and its occupants.” 24 874 F.3d at 572–73. During that

seizure, the officer saw a gun on the car’s floor, which led to Johnson’s arrest. Id.

at 573.

Unlike Johnson, it was unnecessary for Officer Engle to seize Warren to

enforce the parking violation. As the majority acknowledges, the officer could have

left a citation on Warren’s car. See City of Des Moines v. Iowa Dist. Ct., 431

N.W.2d 764, 767 (Iowa 1988) (rejecting argument that “windshield copies of traffic

citations cannot constitute a legal process sufficient to invoke the court’s

jurisdiction”). Instead, Officer Engle “made contact and advised her that she could

not park her vehicle that way.”25 He also prolonged the encounter by asking her

“if she had her license, registration, and proof of insurance.” The majority holds it

was “not unreasonable” to request Warren’s identification to issue the citation in

her name in case she was not the registered owner of the vehicle.26

24 Two judges dissented in Johnson, objecting to the majority’s extension of Whren v. United States, 517 U.S. 806 (1996), to allow “this pretextual seizure based on the suspected parking violation.” 874 F.3d at 575 (Hamilton, J., dissenting). The dissenters found that extension defied the reasonableness standard of the Fourth Amendment. Id. 25 The record does not show the officers had a pressing safety-related concern

about the precarious nature of Warren’s parking. They pulled in behind her. They did not have the car moved during their investigation. After arresting Warren, Officer Engle handed her keys to an occupant of the house who agreed to take care of the car. 26 The majority highlights the driver’s liability for parking violations under

section 321.358. Yet the majority acknowledges vehicle owners are responsible for parking violations in most situations. See Iowa Code § 321.484(2) (stating owners “shall not be held responsible” for parking violations if the owner produces a copy of a lease or rental agreement for the vehicle). Likewise, owners may be asked to identify the person who drove their vehicle if officers have reasonable 35

Let’s think about what that holding means. Even if officers have all the

information they need to issue a parking citation, they can now seize any person

in the vicinity of their illegally parked car and ask for identification. This holding

reaches even further than Johnson, where the officer saw the passenger in the

illegally parked car “make movements that led him to infer that [he] was hiding

something.”27 874 F.3d at 573. In Iowa, no furtive behavior would be necessary.

Every errant parker could be seized.

And would the majority’s holding really affect only drivers intercepted in the

vicinity of their recently parked cars? That distinction seems important to the

majority in distinguishing Medlar. There, the Ohio court found a constitutional

violation when an officer waited five to ten minutes for the driver of a commercial

vehicle parked in a mall’s fire lane to return before seizing the driver. 638 N.E.2d

at 1109–10. Yet the majority’s distinction offers no legal difference. Why was it

more reasonable to stop Warren as she walked away from her illegally parked car

than it would be for officers to bide their time and seize her as she returned?

cause concerning a moving violation; but not so for parking infractions. See id. § 321.484(3). Given that different statutory treatment of moving and parking violations, Officer Engle’s seizure of Warren was unreasonable. As the Ohio court noted in State v. Medlar, “It is neither necessary nor requisite that the person issuing the parking citation see or record the information contained on the driver’s license.” 638 N.E.2d 1105, 1108 (Ohio Ct. App. 1994). 27 Fourth Amendment scholars envisioned this scenario under the Johnson

holding: “a motorist can pull into a metered parking space, begin searching in their car for change to put into the meter, and end up being seized by the police because the meter was expired and the act of looking for meter change could be interpreted by the officer as furtive behavior.” See Stephen D. Hayden, “Parking While Black”: Pretextual Stops, Racism, Parking, and an Alternative Approach, 44 S. Ill. U.L.J. 105, 142 (2019) (borrowing example from Howard University amicus curiae brief in favor of petition for certiorari in Johnson v. United States, No. 17-1349, 2018 WL 1910945 (Apr. 23, 2018)). 36

In stepping away from Medlar, the majority points to a more recent Ohio

case, State v. Eason, 69 N.E.3d 1202, 1208 (Ohio Ct. App. 2016). Unlike Medlar,

the vehicle was occupied when the officer in Eason observed the parking violation.

Eason, 69 N.E.3d at 1208 (describing the scene: “he pulled up to the vehicle in

which appellant was sitting because the car was illegally parked, the driver’s door

was ajar, and the vehicle’s engine was running”). The officer could not tell if Eason

“was alive or in need of medical assistance or simply sleeping.” Id. That scenario

is a far cry from the officer’s seizure of Warren outside her car when he could have

left a ticket on the windshield. Similarly, the other out-of-jurisdiction cases string-

cited by the majority involve defendants who were occupants of illegally parked

cars. In those instances, like Johnson discussed above, addressing the parking

violations necessarily entailed a seizure.

Over and above asking for identification, under the majority’s holding, police

can ask any person who illegally parks for vehicle registration and proof of

insurance. Neither are necessary to the mission of issuing a parking ticket. The

majority contends asking for that information did not impermissibly prolong the

police encounter with Warren. But it did. The demand for that information

occasioned her going back into her car, which smelled of burnt marijuana.28

“[A]bsent reasonable suspicion of other criminal activity, the officer’s

mission is to address the traffic infraction and that mission may take no longer than

28 Granted, an investigative detention may grow out of a seizure justified on different grounds if the officers develop reasonable suspicion of criminal activity to expand their investigation. See State v. Knight, 853 N.W.2d 273, 278 (Iowa Ct. App. 2014). But officers may only expand the scope and duration of a stop where they develop new reasonable suspicion before any impermissible extension of the stop. See Pardee, 872 N.W.2d at 396. 37

is necessary.” State v. Salcedo, 935 N.W.2d 572, 580 (Iowa 2019) (citing

Rodriguez, 575 U.S. at 354). What is necessary to address a parking violation

differs from what is necessary to address a moving violation. As the majority

concedes, it was unnecessary to Officer Engle’s mission to seize Warren at all,

much less to extend their encounter by asking for identification, vehicle

registration, and proof of insurance.

When recently considering whether pretextual traffic stops violate the Iowa

Constitution, our supreme court highlighted protections in state law meant to

“curtail law enforcement’s abuse of authority during traffic stops.” Brown, 930

N.W.2d at 849. Listed first among those protections was the requirement that an

officer allow a motorist to leave “when the reason for a traffic stop is resolved and

there is no other basis for reasonable suspicion.” Id. (citing Coleman, 890 N.W.2d

at 301). Under Brown and Coleman, if Officer Engle’s only mission was to enforce

the parking regulation, he was required to let Warren leave upon issuing a citation.

He lacked authority to seize her or to extend the seizure by asking her unrelated

questions.

The police conduct suggests Warren’s parking violation was pretext for a

more expanded investigation. For instance, at the bench trial, Officer Engle

testified: “There was a police officer that pulled up behind her and turned his lights

on before I was there. I think my back lights were on, and then I made contact.”

This show of authority echoes the situation described by the Johnson dissent:

The officers swooped in on the car, suddenly parking close beside and behind it with bright lights shining in from both directions, opening the doors, pulling all the passengers out and handcuffing them. The district court found, and the majority and I agree, that the passengers were seized as the officers swarmed them, before the 38

officers had any sign that one passenger had a firearm. The sole basis for this intrusive and even terrifying “investigatory stop”? A suspected parking violation . . . for parking too close to an unmarked crosswalk.

874 F.3d at 575 (Hamilton, dissenting). As the Johnson dissent observed: “The

police tactics here would never be tolerated in more affluent neighborhoods.” Id.

at 576. Those dissenters believed extending Whren to parking violations was

“arguably defensible” but unreasonable because it would erode Fourth

Amendment protections.

Back home, the majority of our court acknowledges the concern that

applying Whren to parking violations invites widespread intrusions against

individual liberty. But the majority finds that concern overblown. It professes to

limit its holding to “the unique circumstances of this case” and cautions not “every

police encounter flowing from a parking violation will meet the constitutional

requirement of reasonableness.” Yet the majority’s extension of Whren to parking

violations contains no limiting principles—except perhaps the distinction from

Medlar where the officer lied in wait for the driver. That stated limitation is unlikely

to deter law enforcement from vigorously pursuing this avenue of investigation.

See Brown, 930 N.W.2d at 906–10 (Appel, J., dissenting) (discussing judicial

concern over consequences of Whren); see also Wayne LaFave, Search &

Seizure § 1.4(f) (5th ed.) (“The effect of Whren . . . is that . . . the pretext doctrine

has disappeared from Fourth Amendment jurisprudence, thus leaving citizens

without adequate protection against arbitrary seizures and searches.”).

One final note: Warren emphasizes her violation was a completed parking

infraction. See Iowa Code § 805.8A(1)(a) (classifying parking violations under 39

section 321.358 as scheduled violations subject to a fine of five dollars). In Pals,

our supreme court described federal courts as divided on whether the Fourth

Amendment per se prohibits police from seizing a motorist based only on

reasonable suspicion of “a mere completed misdemeanor.” 805 N.W.2d at 774

(comparing Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir.

2004), with United States v. Hughes, 517 F.3d 1013, 1017–18 (8th Cir.2008)). But

even those courts applying a balancing test often find reasonable suspicion of a

completed misdemeanor to be insufficient to justify a seizure under the Fourth

Amendment. See Hughes, 517 F.3d at 1018 (finding government’s interest in

investigating prior criminal trespass did not outweigh individual’s interest in being

“free from arbitrary interference by police”). This line of cases also should have

prompted defense counsel to file a motion to suppress.

On this record, I would find the officer acted unreasonably in seizing Warren

to investigate a parking violation. The majority admits the officer didn’t need to

stop her to issue the citation. His mission in issuing a parking ticket did not require

her to provide identification, vehicle registration, or proof of insurance. By not

moving to suppress, counsel breached an essential duty and his client suffered

prejudice. If it is proper to reach the suppression issue, both convictions should

be reversed.

Doyle, J., joins this partial dissent.