IN THE SUPREME COURT OF IOWA
No. 21–1147
Submitted September 15, 2022—Filed October 28, 2022
STATE OF IOWA,
Appellee,
vs.
MAURICE EDWARD SALLIS,
Appellant. ______________________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F.
Staudt (suppression and limited appearance hearings), George L. Stigler (limited
appearance hearing), and David P. Odekirk (trial), Judges.
A criminal defendant who was represented by appointed counsel appeals,
challenging the denial of his motion to suppress, the refusal of the trial court to
permit a retained attorney to enter a limited appearance on his behalf, and the
denial of a mistrial based on alleged prosecutorial misconduct. AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which all justices
joined.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson
(argued), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau (argued),
Assistant Attorney General, for appellee. 2
MANSFIELD, Justice.
I. Introduction.
This drug case requires us to decide whether an officer’s recollection that
a motorist had a driving status of “barred” as of several months before amounted
to reasonable suspicion to justify a traffic stop. We are also called upon to
address the extent to which trial courts may regulate limited appearances of
retained counsel in cases with appointed counsel.
An officer pulled over the defendant’s vehicle. The officer had checked the
defendant’s driver’s license status two to six months earlier and determined it
was barred, but he did not recheck that status before making the stop. Cocaine
was found, and the driver was determined to be under the influence; he was
charged with several offenses. Because of his indigency, the defendant received
appointed counsel. Later, during the lengthy pretrial proceedings, a retained
attorney sought to enter two limited appearances for certain pretrial matters,
without getting involved in the trial itself. The district court refused to allow these
limited appearances. The court also overruled the defendant’s motion to
suppress.
Following a trial in which he was represented by appointed counsel, the
defendant was convicted of all charges. On appeal, the defendant asserts error
in the denial of his motion to suppress and the denial of his retained attorney’s
requests to enter limited appearances.
On our review, we disagree. The officer’s information about the defendant’s
driver’s license status, although several months old, gave the officer reasonable 3
suspicion to believe that the defendant was presently engaged in criminal activity
by operating a vehicle.
On the limited-appearance issue, we decline to decide definitively whether
a criminal defendant with appointed counsel has some constitutional right to
have a retained attorney enter a limited appearance. Instead, we conclude that
if such a right exists, it is subject to reasonable regulation by the district court.
Under the circumstances of the case, given the extent to which pretrial
proceedings had been prolonged and the potential for further delay and
disruption, the district court did not abuse its discretion in denying the
requested limited appearances.
Having affirmed these rulings, and because we also affirm the district
court’s ruling denying a mistrial, we uphold the defendant’s convictions and
sentence.
II. Background Facts and Proceedings.
A. The April 23, 2016 Stop and Resulting Charges. On April 23, 2016,
at around 7:30 p.m., Waterloo officers responded to a noise complaint from an
individual who resided on Mosely Street. The caller reported what he described
as an “ongoing problem” involving a man wearing a backward-facing baseball
hat who was loudly playing music from his black Kia Soul.
Two officers, Thomas Frein and Jarid Hundley, responded separately to
the call. While they were en route, the dispatcher informed them that the car in
question had left the scene. Nonetheless, Officer Frein decided to continue
toward the location of the complaint. On his way, he spotted a vehicle and driver 4
matching the description that had been provided by dispatch. From previous
encounters, Officer Frein could identify the driver as defendant Maurice Sallis.
Officer Frein had first learned that Sallis was barred from driving in 2012
as part of a criminal investigation. Officer Frein had updated that information by
conducting a license check on Sallis two to six months before the date of this
encounter. To the best of Officer Frein’s recollection, that check confirmed that
Sallis’s driving privileges were barred.1
Officer Frein turned on his flashers to initiate a traffic stop. As Sallis was
turning, and before he came to a stop, Officer Frein saw a bag containing a white,
powdery substance—later identified as 24.23 grams of cocaine salt—being
thrown from the passenger-side window. According to Officer Frein, “It’s very
common when that happens to be either in the middle of a turn or while
completing a turn.”
While Officer Frein pulled over Sallis, Officer Hundley retrieved the
jettisoned bag containing cocaine. He then joined Officer Frein at the traffic stop.
Officer Frein had Sallis get out of the Kia, handcuffed him, and read him
his Miranda rights. Officer Frein asked Sallis if he had a license, and he said he
didn’t have one. Officer Frein located $1,020 in cash on Sallis’s person in the
form of ten one-hundred-dollar bills and one twenty-dollar bill. Officer Frein also
spotted a half-empty bottle of Remy Martin—an alcoholic beverage—in the
1After Officer Frein stopped Sallis, he had Officer Hundley check the current status of
Sallis’s license. Following the completion of that check, Officer Frein can be heard on the bodycam asking, “Is it barred?” Officer Hundley replies, “Yup.” Officer Frein can then be heard saying, “I thought it was.” 5
passenger seat. He further detected an odor of an alcoholic beverage on Sallis’s
breath and noted that “Mr. Sallis had bloodshot, watery eyes.”
Sallis was arrested. On June 6, a five-count trial information was filed in
the Black Hawk County District Court charging Sallis with enhanced possession
of cocaine with intent to deliver, a class “C” felony; failure to affix a drug stamp,
a class “D” felony; unlawful possession of a prescription, a serious misdemeanor;
driving while barred, an aggravated misdemeanor; and operating while
intoxicated, a serious misdemeanor. Sallis applied for court-appointed counsel.
Attorney Ted Fisher from the public defender’s office was appointed. Sallis
pleaded not guilty and subsequently waived speedy trial.
B. Pretrial Proceedings. Approximately six months later, on
December 19, 2016, Robert Montgomery of the Parrish Law Firm filed a limited
appearance on behalf of Sallis. Montgomery limited his representation to
“[p]retrial proceedings including discovery/discovery depositions, and any and
all motions or applications relating thereto and/or arising therefrom, and
motions to continue trial and continue pretrial.” The scope was not to include
“pretrial conference, trial-related motions in limine, or trial, particularly since
[Montgomery] is unavailable at times currently scheduled for pretrial and trial.”
Montgomery also filed motions for depositions; for the appointment of an
investigator at state expense; and to extend the timelines for discovery, pretrial,
and trial. The district court denied these motions because the public defender’s
office had an existing allowance for funding depositions, the office already had
an in-house investigator which eliminated the need for an additional 6
investigator, and Montgomery’s limited appearance provided that he would not
participate in either pretrial conferences or trial. Montgomery also filed a motion
to suppress on Sallis’s behalf.
On February 8, 2017, Fisher filed his first motion to withdraw, citing
Montgomery’s involvement in the case. A hearing was held on the motion, at
which the State expressed concern about Fisher’s potential withdrawal. The
prosecutor pointed out that if Fisher were relieved from the case and
Montgomery’s appearance remained limited in scope, then defendant Sallis could
be without counsel by the date of trial. In that event, “someone will have to be
reappointed and get back up to speed on this case,” which could potentially
cause delays and difficulties in the proceedings.
Following the hearing, the district court ordered Montgomery to withdraw
his limited appearance and to enter a general appearance by March 3 if he
wished to continue in the case; otherwise, Fisher would remain Sallis’s counsel.
Montgomery did not enter a general appearance. Instead, Fisher remained
Sallis’s counsel. On June 26, Fisher handled the evidentiary hearing on the
motion to suppress. At the hearing, Officer Frein testified, and his dashcam video
and Officer Hundley’s bodycam video were received into evidence.
On June 30, Fisher asked again to withdraw from the case, citing an
“irreparable breakdown” in the attorney–client relationship.2 During the hearing
on this second motion to withdraw, Fisher told the district court that Sallis had
2At the same time, Fisher also filed a motion asking the district court to withhold ruling
on the motion to suppress pending the appointment of new counsel. The court granted this motion. 7
sent him “an e-mail requesting some very specific legal things, [from] which it
was pretty clear . . . that was driven by Mr. Montgomery.” In addition, Fisher
stated that he and Montgomery were “not on the same page” as to strategy and
did not “see eye-to-eye” on the legal issues. In one instance, according to Fisher,
Montgomery had requested specific actions from Fisher, threatening that if
Fisher did not comply with the request, then Montgomery would engage in steps
consistent with the Iowa Rules of Professional Conduct. Fisher added, “In [fifteen]
years, I haven’t experienced this type of situation, Judge, and I don’t believe I
can effectively continue to represent Mr. Sallis because of this breakdown for
which . . . Montgomery is in the mix . . . .”
After hearing from the interested parties, the district court granted Fisher’s
second motion to withdraw and appointed contract attorney Donna Smith to
represent Sallis. On November 11, Smith filed a written “closing argument brief”
on the still-pending motion to suppress. One month later, on December 11, the
district court entered an order denying the motion to suppress. The court
reasoned that the traffic stop could be sustained on two independent grounds:
Here the officer had reasonable belief that the defendant was the individual operating the motor vehicle in the loud music complaint. He had reasonable belief that the driver of the Kia was the individual involved in the loud music complaint and wanted to investigate said complaint. An officer is able to stop a motor vehicle concerning criminal activity that has occurred or is occurring.
The officer had an additional reasonable reason to investigate the driver of the Kia. He knew the driver on sight and believed the defendant’s license was barred. Most barments are for from two to six years and as such the officer had a reasonable belief the defendant would remain barred even 60 days after the last time he checked the official record. 8
Meanwhile, on December 8, Montgomery had filed a second application for
a limited appearance. Here, his scope of representation would be limited to
“the already-filed Motion To Suppress, including submitting brief and offering
argument thereon—exclusively on the Motion To Suppress only.” Attached to the
application was an additional brief in support of the motion to suppress.
That same day, Smith filed a motion to compel production of any prior
requests Officer Frein had made for Sallis’s driving record. On December 19, the
motion to suppress now having been denied, Smith filed a motion to reopen the
record on that motion to allow for additional briefing and evidence, including
evidence derived from the recently-filed motion to compel.
On December 20, the district court held a lengthy, nearly two-hour hearing
on Montgomery’s second application for a limited representation of Sallis. The
court heard from Montgomery, Smith, and the prosecutor. Montgomery clarified
that he would have preferred to make a general appearance rather than a limited
one, but his schedule did not allow for it. Montgomery added that initially he had
been working under a retainer provided by Sallis’s family members, but due to
the exhaustion of funds, his representation had become pro bono.
During the give and take of the hearing, the district court indicated it
would not have a problem with Montgomery simply filing a separate brief in
support of the motion to suppress. The court’s concerns, rather, were that
Montgomery was unwilling to actually limit his representation to that specific
matter, that he would be continuing to have contact with Sallis, and that he was
reserving the right to assist with Sallis’s representation in the future—while not 9
actually entering a general appearance. Montgomery, meanwhile, challenged the
court’s overall authority to regulate limited appearances unless they affected the
fairness or integrity of a court proceeding or involved cost to the State.
The district court deferred ruling on Montgomery’s application for a second
limited appearance because an application for interlocutory appeal from the
denial of the motion to suppress was pending. Our court ultimately denied the
application. Procedendo issued in early March 2018, and the scene shifted back
to the district court.
On April 19, the district court entered an order denying Montgomery’s
limited appearance.3 The court explained:
On its face, a limited appearance appears somewhat harmless. Mr. Montgomery and Ms. Smith stated that they were in agreement as to strategy and procedure concerning Mr. Sallis’ case; that they were working well together. The Court, however, must review this matter in terms of whether limited appearances are appropriate on an overall basis concerning criminal cases with court-appointed counsel.
If Ms. Smith were independently retained by the defendant, should a dispute concerning strategy arise between her and Mr. Montgomery, she could merely withdraw. Mr. Sallis could then retain new counsel with similar ideas as Mr. Montgomery. Ms. Smith has been appointed to represent Mr. Sallis as he remains indigent. Should Ms. Smith inform Mr. Sallis that she does not agree with Mr. Montgomery’s strategy, Mr. Sallis could request that the Court allow Ms. Smith to withdraw and that new counsel be appointed. The right to counsel as an indigent defendant is circumscribed. The defendant is not allowed to fire various court-appointed counsel because of disagreements in strategy or personality. The defendant is not guaranteed counsel of his choice. . . .
....
3That same day, the district court also entered an order denying Smith’s motion to reopen
the record on the motion to suppress. 10
When a pro bono attorney enters a limited appearance, various consultations between counsel are necessary. The indigent defendant, initially at the state public defender’s expense, is required to pay additional fees to court-appointed counsel for consultation with the pro bono limited appearance attorney. . . . Strategy among two lawyers assigned to the same case is seldom without problems. Each experienced counsel has his or her own beliefs concerning strategy and appropriate procedures in the defense of any criminal case. To force court-appointed counsel to always converse with, confide in, and discuss strategy with counsel on a limited appearance would be inappropriate. Any counsel on a limited appearance, pro bono basis may have ideas about a case that are not in agreement with court-appointed counsel. Once those ideas are exposed to the defendant, he or she may not wish to continue with the strategy of court-appointed counsel. Unfortunately, counsel who has entered his or her limited appearance can then easily withdraw after having caused turmoil and upheaval in court-appointed counsel’s strategy. . . .
The next concern the Court has concerning limited appearances is what limitations must be put in place to avoid the illogical conclusion to which limited appearances could proceed. An attorney could attempt to enter a pro bono limited appearance for purposes of arguing motions in limine, opening statement, or direct or cross-examination of any one witness. The possibilities are endless as are the problems created with limited appearances.
It is certainly possible that pro bono limited appearance counsel may wish to proceed with issues that may not be in the defendant’s best interests concerning his defense strategy as a whole. Counsel whose limited duty is to represent the defendant on a singular issue may not be able to provide the best advice to the defendant concerning his or her overall strategy. Counsel entering a limited appearance will only have reviewed the necessary documentation to proceed concerning his or her limited issue. Additional evidence or witnesses may be involved that might lead regular counsel to believe that proceeding on a limited issue would be inappropriate. This could easily occur concerning potential plea agreements or agreements to testify against a codefendant. Counsel entering a limited appearance and promoting his or her viewpoint concerning the limited issue, may not provide advice in the defendant’s best interests. Conflict would ensue between counsel for no reason other than the interference of counsel on a limited appearance basis. 11
Discovery could also prove to be a nightmare concerning limited appearances. Competing strategies and methods could be detrimental to the defendant’s case. Timing of depositions and other discovery could prove perilous. Costs for the defendant and initially the state public defender’s office could be substantial should an attorney be allowed to enter a limited appearance for discovery purposes.
The defendant is provided with court-appointed counsel that have met the various guidelines established by the state public defender’s office. Appointed counsel are licensed, competent attorneys who have established the criteria necessary to allow them to participate in the state public defender court-appointed counsel system.
All rights that we enjoy are circumscribed. In the above-captioned matter, the Court finds that for the above-stated reasons that limited appearance by pro bono or paid counsel in a case in which the defendant has court-appointed counsel is inappropriate.
Montgomery filed an application for interlocutory appeal from this order,
which our court denied.
Meanwhile, Sallis failed to appear for pretrial hearings in May 2018. A
warrant was issued for his arrest, and bond was forfeited. A year and a half later,
in January 2020, Sallis was rearrested and brought before the court. Sallis’s
criminal case went through several other attorneys, two of whom were permitted
to withdraw because of a “breakdown in the attorney–client relationship,” before
it reached John Standafer, the attorney who actually tried the case in
June 2021.4
4Standafer did not get to try the entire case. After the presentation of evidence had concluded, Standafer notified the court of his intention to withdraw from the case, and Sallis asked the court to let him deliver a pro se closing argument. After fully informing Sallis of the potential risks of this course of action, the district court allowed Sallis to deliver a pro se closing argument. Standafer was not removed from the case, however, and represented Sallis for purposes of posttrial motions and sentencing. 12
C. Trial and Appeal. During the trial, the State asked Officer Frein, on
direct examination, why he had opened the driver’s door and removed Sallis from
the Kia immediately after stopping it. The exchange went as follows:
Q. When we see here, when we stop at one minute into the video, what are you doing?
A. I’m getting Mr. Sallis out of the car.
Q. Okay. Now, did you open that door?
A. I did.
Q. And why were you opening that door and getting him out immediately?
A. He’d already discarded evidence out of the car and since I was out of my car, I didn’t want to give him the opportunity to drive off.
Q. What do you mean drive off?
A. It’s common that when—if a subject is going to flee from the police in their car, that they’ll wait for the officer to get out of the car to kind of give themselves a head start and then they’ll take off from there.
Q. And were you concerned about Mr. Sallis being a flight risk at that time?
A. Yes.
MR. STANDAFER: I object before the answer is in. I need to approach. I ask for a mistrial.
The defense’s motion for a mistrial was denied, and the trial continued.
Two of the charges were resolved without a jury verdict: the prescription
drug charge was dismissed shortly before trial, and Sallis pleaded guilty to the
OWI charge during trial. See Iowa Code § 321J.2(1) (2016). Following the
presentation of evidence and closing argument, the jury returned verdicts of
guilty on the remaining counts of cocaine possession with intent to deliver, 13
failure to attach a drug stamp, and driving while barred. See id.
§ 124.401(1)(c)(2)(b); id. § 453B.12; id. § 321.561. Sallis stipulated to the
enhancement on the cocaine possession with intent to deliver charge. See id.
§ 124.411.
On August 20, Sallis was sentenced to concurrent terms of imprisonment
of twenty years on the enhanced cocaine possession with intent to deliver charge,
five years on the drug stamp charge, two years on the driving while barred
charge, and one year on the OWI charge. See id. § 124.411(1); id. § 902.9(1)(d);
id. §§ 903.1(1)(b), (2). Sallis appealed, and we retained the appeal.
Sallis raises three claims on appeal. First, Sallis argues that the district
court erred in overruling his motion to suppress all evidence from the traffic stop
because neither a completed misdemeanor (the noise ordinance violation) nor
allegedly stale information (prior knowledge of barred driving privileges) were
sufficient to justify the traffic stop. Second, Sallis contends that the district court
violated his right to counsel under the Sixth Amendment to the United States
Constitution and article I, section 10 of the Iowa Constitution by denying
Montgomery’s requests for a limited appearance in the case. And third, Sallis
claims that the district court incorrectly failed to grant a mistrial after the State
elicited testimony allegedly depicting him as a flight risk.
III. Standard of Review.
When a defendant challenges the denial of a motion to suppress based on
an asserted constitutional violation, we review the district court ruling de novo.
State v. Hunt, 974 N.W.2d 493, 496 (Iowa 2022). We also review de novo claims 14
alleging denial of a constitutional right to counsel. State v. Sewell, 960 N.W.2d
640, 642 (Iowa 2021). Lastly, we review the denial of a mistrial based on alleged
prosecutorial misconduct for abuse of discretion. State v. Veal, 930 N.W.2d 319,
327–28, 335 (Iowa 2019).
IV. Analysis.
A. Should Sallis’s Motion to Suppress Evidence Have Been Granted?
The Fourth Amendment to the United States Constitution and article I, section 8
of the Iowa Constitution protect individuals from unreasonable searches and
seizures by the government. Sallis makes the same arguments under both
constitutions.
A recognized exception to the warrant requirement “allows an officer to
stop an individual or vehicle for investigatory purposes for a brief detention
based only on a reasonable suspicion that a criminal act has occurred or is
occurring.” State v. Baker, 925 N.W.2d 602, 610 (Iowa 2019). “The purpose of an
investigatory stop is to allow a police officer to confirm or dispel suspicions of
criminal activity through reasonable questioning.” Id. (quoting State v. Kreps,
650 N.W.2d 636, 641 (Iowa 2002)). “The stop is for a brief detention, and
therefore ‘[a]n officer may make an investigatory stop with “considerably less
than proof of wrongdoing by a preponderance of the evidence.” ’ ” Id. (alteration
in original) (quoting Kreps, 650 N.W.2d at 642).
Sallis asks us to consider whether a completed misdemeanor, such as a
noise ordinance violation, can ever justify a traffic stop if it occurred outside the
presence of the officer. We need not address that argument, though. Instead, we 15
conclude that the stop may be upheld on an independent ground—namely,
Officer Frein’s recognition of Sallis and his prior information that Sallis was
barred from operating a vehicle. In our view, Officer Frein had reasonable
suspicion to stop Sallis, given that he had checked Sallis’s driving status as part
of a separate investigation two to six months earlier and, to his recollection,
determined that Sallis was barred.
Sallis urges that Officer Frein’s information was “stale” because it was
several months old. Staleness arguments often arise in the warrant context,
where probable cause is required. See, e.g., State v. Bracy, 971 N.W.2d 563,
566–67 (Iowa 2022) (applying probable cause standard to issue warrant). We
have said that “[w]hether information is stale depends on the circumstances of
each case.” State v. Randle, 555 N.W.2d 666, 670 (Iowa 1996). We have not
previously addressed a staleness argument in this context.
In support of his position, Sallis directs us to Moody v. State, 842 So. 2d
754 (Fla. 2003) (per curiam). That case involved a stop based on suspicion that
the defendant had a suspended license. Id. at 755. The Florida Supreme Court
noted that it could have been as long as three years since the officer had last
checked the defendant’s driving status. Id. at 758. Finding that information too
outdated, the court invalidated the stop. Id. As the court put it:
[The defendant] could have easily obtained a valid license before [the officer] stopped him on May 23, 1994. Based on these facts, it cannot be said that [officer] had fresh knowledge concerning [the defendant] or the status of his driver’s license at the time of the traffic stop on May 23, 1994.
Id. 16
This case is different and falls within a time range that courts have
generally found acceptable. Recently, for example, the Florida District Court of
Appeal distinguished Moody and upheld a traffic stop where the officer had
previously arrested the defendant for driving with a suspended license on two
other occasions, the most recent of which took place three months prior to the
stop. Valero v. State, 301 So. 3d 1021, 1022–23 (Fla. Dist. Ct. App. 2019). The
Florida court noted that “several federal and out-of-state courts have concluded
that lapses of between three-and-a-half and five months did not make an officer’s
information stale.” Id. (citing cases). The court also emphasized that the deputy
was “not required to know that [the defendant’s] license was in suspension; what
was required was a reasonable articulable suspicion that [the defendant] might
be driving on a suspended license.” Id. at 1023 (quoting Anderson v. State,
592 S.E.2d 910, 913 (Ga. 2004)).
As the district court observed in this case, driving bars in Iowa typically
run from two to six years. See Iowa Code § 321.560(1) (describing a period of
“not less than two years nor more than six years”). This length of time is relevant
in determining how up-to-date the officer’s information must be. As the Hawaii
Supreme Court has noted, we ought to consider “the freshness of the officer’s
information . . . combined with the nature of the license revocation or
suspension.” State v. Spillner, 173 P.3d 498, 509 (Haw. 2007). Here the stop
occurred within two to six months of Officer Frein’s latest determination that
Sallis was barred from driving. 17
Other out-of-state authority also supports the district court’s
determination that Officer Frein had reasonable suspicion sufficient to stop
Sallis’s vehicle. In State v. Nunez, the Missouri Court of Appeals upheld a traffic
stop where the officer recognized the defendant and “knew that Defendant had
his driver’s license revoked several months earlier.” 455 S.W.3d 529, 531
(Mo. Ct. App. 2015). The court pointed out that in Missouri, “[a] driver whose
license has been revoked cannot obtain a new license for at least one year.” Id.
at 532. The court concluded that this law, when combined with the knowledge
that several months earlier the defendant had had his license revoked, tallied up
to reasonable suspicion. Id. The court cited with approval an earlier Missouri
case where the court of appeals had upheld a stop after the officer recognized
the defendant and “had personal knowledge that eight months earlier
[the defendant’s] driver’s license was under revocation.” Id. (quoting State v.
Spurgeon, 907 S.W.2d 798, 800 (Mo. Ct. App. 1995)); see also United States v.
Pierre, 484 F.3d 75, 84 (1st Cir. 2007) (finding that police officer had reasonable
suspicion to pull over a driver he recognized as having had a license suspension
five months earlier); State v. Harris, 513 S.E.2d 1, 3–4 (Ga. Ct. App. 1999)
(holding the officer’s stop was proper where he knew the driver’s license was
suspended three weeks ago and some suspensions last up to five years);
Commonwealth v. Deramo, 762 N.E.2d 815, 817, 819 (Mass. 2002) (“[B]ased on
his observation of the defendant’s vehicle and his knowledge that the defendant’s
license had, as of two months earlier, still been subject to two lengthy periods of
revocation, [the officer] reasonably suspected that the defendant was committing 18
the crime of operating a motor vehicle without a valid license.”); State v.
Duesterhoeft, 311 N.W.2d 866, 866–68 (Minn. 1981) (finding the officer’s stop
did not violate the Fourth Amendment when he had personal knowledge the
driver’s license was suspended one month earlier); State v. Yeargan, 958 S.W.2d
626, 633 (Tenn. 1997) (upholding a stop where “the officer had personal
knowledge that [the defendant’s] driver’s license had been revoked for a period
of one year, and that only six months had passed since the revocation”); State v.
Gibson, 665 P.2d 1302, 1304 (Utah 1983) (upholding a stop where the officer
knew as of approximately three months prior that defendant’s license had been
revoked).
Sallis argues that the traffic stop was invalid because during the interim
two to six months since Officer Frein’s last check, he could have had his license
restored or obtained a temporary restricted license. Sallis also argues that Officer
Frein could have run a new check to verify his current driving status. These
possibilities and alternative courses of action do not undermine the existence of
reasonable suspicion in this case. Officer Frein was within his rights in stopping
Sallis to determine whether his driving privileges were still barred. Because both
the Fourth Amendment and article I, section 8 allow traffic stops based on
reasonable suspicion of criminal activity, see, e.g., State v. Struve, 956 N.W.2d
90, 95–96 (Iowa 2021), we believe the foregoing disposes of Sallis’s challenge to
the stop under both constitutions.
For these reasons, we hold that the district court properly denied Sallis’s
motion to suppress. 19
B. Did the District Court Violate Sallis’s Constitutional Right to
Counsel by Refusing an Attorney’s Requests to Enter Limited Appearances?
Sallis next contends that the district court violated his right to counsel under
the Sixth Amendment to the United States Constitution and article I, section 10
of the Iowa Constitution by turning down Montgomery’s limited appearance
requests filed in December 2016 and December 2017. The United States
Constitution provides, “In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend.
VI. And the Iowa Constitution states, “In all criminal prosecutions, . . . the
accused shall have a right . . . to have the assistance of counsel.” Iowa Const.
art I § 10. As before, Sallis does not urge us to deviate from federal precedent in
interpreting the state constitutional guarantee.
1. Limited appearances and the constitutional right to counsel. Both federal
and state constitutions afford a criminal defendant the right to counsel of choice,
provided the counsel is not obtained with state funds. United States v.
Gonzalez-Lopez, 548 U.S. 140, 144–46 (2006); State Pub. Def. v. Amaya, 977
N.W.2d 22, 30 (Iowa 2022); State v. Smith, 761 N.W.2d 63, 69–70 (Iowa 2009).
We have added that “no reason exists for depriving an indigent of the same right
of choice as a person of means when the indigent is able to obtain private counsel
without public expense.” English v. Missildine, 311 N.W.2d 292, 294 (Iowa 1981).
On the other hand, with court-appointed counsel, a defendant does not
have a right to choose their attorney. State v. McKinley, 860 N.W.2d 874, 879
(Iowa 2015). If a defendant desires a different court-appointed attorney, they 20
“must show sufficient cause to justify the appointment of substitute counsel.”
State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000) (en banc). Justifications
include a complete breakdown in communications between the attorney and the
defendant, irreconcilable conflict, or a conflict of interest. Id.
This case presents the question of whether an attorney may have hybrid
representation consisting of court-appointed primary counsel, not selected by
the defendant, and retained limited-purpose counsel, not paid for by the State.
Each of the parties has staked out a position that leaves little room for
accommodating the interests of the other side. Sallis argues that “[a] defendant
has the right to the assistance of counsel of his choice if that counsel is not
court-appointed”—even if the counsel would only make a limited appearance.
The State argues that there is no right to have the services of appointed counsel
supplemented by the services of retained counsel even if the State is paying
nothing for the retained counsel.
Both positions are, in our view, overstated. The State’s position fails to
account for the State’s limited interest in dictating aspects of a defendant’s legal
representation as to which the State isn’t footing the bill. Why should the State
care if an indigent defendant is getting advice on particular matters from a pro
bono attorney so long as the State is not paying for that advice? In State Public
Defender v. Amaya, we recently reiterated the general principle that an indigent
defendant should have the option of retaining counsel at no expense to the State,
while leaving the State to pay other necessary costs of defense that the State
would otherwise have to pay and for which the defendant has no available funds. 21
977 N.W.2d 22, 32, 38 (Iowa 2022). Sallis argues that this case is simply a logical
extension of that principle. Here, as in Amaya, an indigent defendant is providing
part of their defense through an outside arrangement, and the issue is whether
the defendant should be free to do that while having the State cover other costs
of defense it would have to cover anyway. See United States v. Zelenka,
112 F. Supp. 2d 708, 717 (M.D. Tenn. 1999) (“Simply because private counsel is
assisting a federal defender in representing an indigent defendant, does not
mean that public funds are being misspent.”); Knapp v. Hardy, 523 P.2d 1308,
1312 (Ariz. 1974) (en banc) (“It is, of course, not improper for a relative of the
defendant to hire people to help and assist, and the fact that the indigent
defendant already has the aid of the public defender’s office does not limit the
help a defendant may receive. We feel that it is preferable to have counsel thus
assisting to be associated and made a counsel of record with reciprocal rights
and duties under our Rules of Criminal Procedure and subject to the direction
of the court as to the particular case in which he is involved.”).
On the other hand, Sallis overlooks the potentially disruptive effects of
limited appearances in criminal cases, especially when the primary counsel has
been court appointed. For instance, it may become necessary to
compartmentalize proceedings in the case to accommodate the presence of
limited-purpose counsel. There may need to be consultations between primary
counsel, limited-purpose counsel, and the defendant. These hearings and
consultations can result in delays and extra expense. 22
Where both primary counsel and limited-purpose counsel are retained, the
bottom line is that the client chose both counsel. In that circumstance, there is
an incentive among the client and both counsel to work with each other to
minimize client expense. And typically, if there is disagreement, primary counsel
would be expected to have the final say as the attorney ultimately responsible
for the case.
But when primary counsel is appointed, the situation may be somewhat
different. The defendant did not select their primary counsel and is not paying
for their services. Thus, the defendant may not particularly care whether primary
counsel is incurring additional time and expenses. They might not even care
whether appointed counsel remains in the case or is replaced by another primary
counsel. Also, the path for resolving disagreements between limited-purpose
counsel and primary counsel is less clear. Limited-purpose counsel may have a
better relationship with the client than primary counsel. But does that mean
court-appointed counsel should yield to limited-purpose counsel because of the
relationship with the defendant?
In a related vein, we have said that there is no constitutional right to hybrid
representation consisting of a mix of self-representation and representation by
appointed counsel. See Hrbek v. State, 958 N.W.2d 779, 788–89 (Iowa 2021)
(collecting cases with a similar holding). Some of the same concerns about
duplicative proceedings and disagreements concerning how to defend the case
are present there. See State v. Mott, 759 N.W.2d 140, 147 (Iowa Ct. App. 2008)
(“The court, however, is not required to permit this form of hybrid representation 23
where both the pro se defendant and standby counsel are actively participating
as defense counsel at trial.”).
2. Limited appearances under the Iowa Rules of Criminal Procedure. As
currently framed, the Iowa rules do not shed much light on when limited
appearances are permitted in criminal cases. The State cites a case from next
door in Nebraska—State v. Dixon, 835 N.W.2d 643 (Neb. 2013). In Dixon, the
Nebraska Supreme Court sustained a trial court’s refusal to allow a limited
appearance in a criminal case where the defendant had regular, court-appointed
counsel. Id. at 649. A private attorney, paid for by the defendant’s fiancé, sought
to appear for the “limited purpose of attempting immediate resolution of [the]
case without necessity of a trial or complex hearings.” Id. at 646. As in the
present case, the trial court in Dixon instructed the attorney that he needed to
“fully represent [the defendant] or not represent her at all.” Id. The Supreme
Court of Nebraska upheld this ruling, noting that the Nebraska Rules of
Professional Conduct at the time prohibited limited appearances: “[A] limited
appearance may be entered by a lawyer only when a person is not represented.”
Id. at 648–49 (quoting Neb. Ct. R. of Prof. Cond. § 3-501.2(d)).
Dixon’s holding is of limited value here because Iowa does not have a
similar rule. Instead, Iowa Rule of Professional Conduct 32:1.2(c) provides,
“A lawyer may limit the scope of the representation if the limitation is reasonable
under the circumstances and the client gives informed consent.” But saying that
an attorney may ethically undertake a limited representation in Iowa is not the
same as saying that it is permitted in every criminal case. To the contrary, as 24
noted in the preamble, “The rules [of Professional Conduct] presuppose a larger
legal context shaping the lawyer’s role. That context includes . . . substantive
and procedural law in general.” Iowa R. of Prof’l Conduct ch. 32 pmbl. [15].
The State notes that the Iowa Rules of Criminal Procedure contain only
three references to limited appearances, all in connection with expungement
proceedings. See Iowa Rs. Crim. P. 2.80(1) (expungement of dismissed cases or
acquittals), 2.81(1) (expungement of eligible misdemeanor convictions), 2.82(1)
(expungement of public intoxication, possession of alcohol under the legal age,
and certain prostitution cases). The State relies on the canon expressio unius est
exclusio alterius to argue that limited appearances are not permitted in other
criminal contexts. See, e.g., Struve v. Struve, 930 N.W.2d 368, 376–77
(Iowa 2019) (applying the canon).5
By way of contrast, the Iowa Rules of Civil Procedure provide blanket
authority for limited appearances. Rule 1.404(3) states:
Pursuant to Iowa R. Prof’l Conduct 32:1.2(c), an attorney’s role may be limited to one or more individual proceedings in the action, if specifically stated in a notice of limited appearance filed and served prior to or simultaneously with the proceeding. If the attorney appears at a hearing on behalf of a client pursuant to a limited representation agreement, the attorney shall notify the court of that limitation at the beginning of that hearing.
5The proposed amendments to the Iowa Rules of Criminal Procedure that were circulated for public comment in March 2020 and again in June 2022 would expressly prohibit a limited appearance in a case like this. See Iowa Sup. Ct. Supervisory Order, Request for Public Comment on Proposed Amendment to Chapter 2, Iowa Rules of Criminal Procedure (Mar. 2020), proposed rule 2.28(2) (“Limited appearances are not allowed in criminal cases where there is appointed counsel.”); Iowa Sup. Ct. Supervisory Order, In the Matter of Accepting Further Public Comment on the Proposed Revised Chapter 2 Iowa Rules of Criminal Procedure (June 2022), proposed rule 2.28(2) (same). Final action has not been taken on these proposed amendments. 25
Iowa R. Civ. P. 1.404(3). The civil rules, however, do not apply to criminal
proceedings. State v. Russell, 897 N.W.2d 717, 725 (Iowa 2017) (“[O]ur rules of
civil procedure do not apply to criminal matters . . . .”); State v. Wise, 697 N.W.2d
489, 492 (Iowa Ct. App. 2005) (“The Rules of Civil Procedure have no applicability
in criminal cases, unless made applicable by statute.”).6
In the end, we do not think the Iowa court rules offer much guidance here.
The three expungement-related rules each contain identical wording:
“The application may be filed by an attorney of record in the case, by an attorney
who enters a limited appearance for the expungement proceedings, or by a
self-represented defendant.” See Iowa Rs. Crim. P. 2.80(1), 2.81(1), 2.82(1).
These passing references to limited appearances in the expungement context are
a weaker basis for invoking expressio unius than a rule devoted to limited
appearances would be. The reference clearly opens the door to limited
appearances for expungement purposes, but we do not read it as closing the
door to limited appearances in criminal cases for other purposes.
3. There is no unlimited constitutional right to a limited appearance in a case
with retained counsel. Sallis argues that regardless of what the Iowa court rules
might or might not say, he has a Sixth Amendment and article I, section 10 right
to have counsel of his choice enter a limited appearance (or multiple limited
appearances). He cites no on-point authority. To the contrary, in Dixon, the court
6Sallis contests this point somewhat. He notes that Iowa Rule of Civil Procedure 1.101 states, “The rules in this chapter shall govern the practice and procedure in all courts of the state, except where they expressly provide otherwise or statutes not affected hereby provide different procedures in particular courts or cases.” Yet Sallis fails to acknowledge the countervailing language in Iowa Rule of Criminal Procedure 2.1(1): “The rules in this section provide procedures applicable to indictable offenses.” 26
rejected the defendant’s Sixth Amendment argument that he had a right to
limited-representation counsel of his choice in a case where he was represented
by court-appointed counsel. 835 N.W.2d at 648. Likewise, in People v. Aceval,
the Michigan Court of Appeals found no Sixth Amendment violation when the
trial court ordered the defendant’s retained trial counsel to remain in the case,
rejecting his motion to withdraw, and refused to allow another retained counsel
to continue in the case on a limited basis. 764 N.W.2d 285, 291–92 (Mich. Ct.
App. 2009). As originally occurred here with attorney Fisher, the primary counsel
in Aceval sought to withdraw “because of a breakdown in the attorney–client
relationship that he attributed to [the limited-appearance counsel’s] increased
involvement.” Id. at 290.
Thereafter, in Aceval v. MacLaren, the United States Court of Appeals for
the Sixth Circuit denied the same defendant’s challenge to his conviction on
federal habeas review. 578 F. App’x 480, 481 (6th Cir. 2014). Applying the
deferential standard of review that applies to federal habeas collateral review of
state court legal determinations, the court declined to overturn the defendant’s
conviction. Id. at 482. It noted the absence of any Supreme Court precedent
establishing a defendant’s entitlement “to a second, ‘limited’ attorney responsible
for only discrete aspects of the representation.” Id.
A number of jurisdictions prohibit or sharply restrict limited appearances
in criminal cases, either expressly or by direct implication. See Conn. Prac. Book
§ 3-8(b) (“A limited appearance may not be filed in criminal or juvenile cases,
except that a limited appearance may be filed pursuant to Section 79a-3(c)(1) 27
[which governs “Filing of the Appeal” in child protection matters].”); Mich. Ct. R.
6.001(D) (“The provisions of the rules of civil procedure apply to cases governed
by [the rules of criminal procedure], except . . . with regard to limited
appearances and notices of limited appearance.”); Neb. Ct. R. of Prof. Cond.
§ 3-501.2(d) (“[A] limited appearance may be entered by a lawyer only when a
person is not represented.”); Nev. Dist. Ct. R. 26 (omitting criminal proceedings
when it lists the areas where “[l]imited scope representation shall be permitted”);
N.C. 21 Jud. Dist. Crim. P. R. 2.0 (local rule of Forsyth County stating that
“[l]imited appearances in Superior Court will be discouraged”); N.C. 14 Jud. Dist.
Case Mgmt. Sys. R. 3.1 (local rule of Durham County stating that (“[d]iscovery
material shall not be distributed to defense counsel entering only a limited
appearance” and “[l]imited appearances are discouraged as they typically result
in unnecessary delay”). These out-of-state examples tend to undermine the view
that there is a blanket constitutional right to limited counsel so long as the State
doesn’t have to pay anything.
Given Sallis’s inability to cite any directly relevant legal authority, we are
not persuaded that either the Sixth Amendment or article I, section 10
guarantees a defendant who already has primary, court-appointed counsel an
unlimited right to deploy secondary, limited-representation, retained counsel.
Likewise, for the reasons we have already stated, we are not persuaded that the
Iowa court rules recognize limited appearances in criminal cases apart from
expungements. 28
4. No abuse of discretion in this case. Thus, to the extent any right to
engage limited-representation counsel in the pretrial phases of a criminal case
exists—a matter we do not decide today—it must be tempered by the trial court’s
legitimate interest in managing the proceedings before it. See, e.g., State v.
Johnson, 756 N.W.2d 682, 689 (Iowa 2008) (holding that “a trial court has the
discretion to limit standby counsel so long as those limitations are reasonable”);
State v. Williams, 285 N.W.2d 248, 255 (Iowa 1979) (“[T]he right to choice of
counsel by both indigent and non-indigent defendants is limited by trial court
discretion to maintain an orderly trial process.”).7
In this case, the court had legitimate reasons for denying Montgomery’s
two applications to enter a limited appearance. The first was coupled with an
application by the primary attorney, Fisher, to withdraw. Fisher could not, or
would not, work with Montgomery. Thus, allowing Montgomery to enter only a
limited appearance would have resulted in a new primary counsel having to be
appointed and further delay in the proceedings.
The second application was explicitly for the purpose of supplementing the
briefing and record on “the already-filed Motion To Suppress.” At the hearing on
the second application, Montgomery also asserted a right to be involved in the
case in unspecified ways in the future. Yet at the time Montgomery filed this
second application, it had been approximately six months since the motion to
7This case presents an attorney requesting to enter an appearance for a limited purpose in a case that already has court-appointed counsel. We are not addressing the situation where advice might be sought from another counsel—such as immigration or otherwise specialized counsel—without that attorney entering an appearance of any kind. See e.g., Diaz v. State, 896 N.W.2d 723, 732 (Iowa 2017) (discussing the obligation of defense counsel to provide certain immigration advice). 29
suppress had been heard. Sallis’s closing brief in support of the motion was
already on file. Again, allowing Montgomery to enter a limited appearance would
have prolonged the proceedings, in this instance on an already-filed,
already-briefed, and already-heard motion to suppress.
Under these circumstances, no reversible error occurred when the district
court denied the applications for limited appearance. We agree with the district
court that it “has the ability to control limited appearances.” In its order, the
district court raised concerns about additional consultations, duplication of
proceedings, competing strategies, and the potential that court-appointed
counsel would seek to withdraw. We do not necessarily agree with the district
court that those problems would arise in every case where an attorney seeks to
make a limited appearance and the defendant already has court-appointed
counsel. But they existed in this case, and that is enough to sustain the court’s
denial of the applications under the abuse of discretion standard that we apply.
We do not question Montgomery’s good faith, his devotion to his client’s
best interests, or his legal strategies. We simply conclude that under the
circumstances of this case, the district court acted within its discretion to
manage the proceedings by denying the applications. For these reasons, we
affirm the district court’s orders denying the applications for limited appearance.
C. Should the District Court Have Excluded the Officer’s Testimony
About Why He Got Sallis Out of His Car Immediately? Sallis claims he was
unfairly tarnished by Officer Frein’s testimony that he got Sallis out of the Kia
right away because he was concerned about Sallis being a flight risk. We see no 30
abuse of discretion. This line of testimony was designed to explain Officer Frein’s
aggressive course of action as shown on video. Jurors might otherwise have
wondered what was going on because the typical traffic stop does not result in
an order to exit the vehicle and immediate handcuffing.
Officer Frein testified that he had seen Sallis discard something from the
car. He testified that based on his general experience—i.e., not his experience
with Sallis specifically—it is common for a subject who wants to flee to wait for
the officer to get out of their patrol car and then drive off. We agree with the
district court that this somewhat generic testimony about police methods was
unlikely to have been of much consequence in the case. An adverse effect became
even less likely after Sallis’s trial counsel clarified on cross-examination that
Officer Frein had never arrested Sallis before.
Sallis points us to State v. Wilson, where we described the chain of
inferences necessary to establish evidence of flight as probative of the
defendant’s guilt. 878 N.W.2d 203, 212–13 (Iowa 2016). Wilson has no bearing
here because Sallis did not flee the scene and the State was not attempting to
argue that any inference of guilt should be drawn from how the stop was
conducted.
Accordingly, we find no error in the district court’s denial of Sallis’s motion
for a mistrial.
V. Conclusion.
For the reasons stated, we affirm Sallis’s conviction and sentence.
AFFIRMED.