IN THE COURT OF APPEALS OF IOWA
No. 13-0603
Filed July 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARCUS GAMBLIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Richard D.
Stochl (motion to suppress) and Kellyann M. Lekar (trial and sentencing),
Judges.
A defendant appeals the district court’s denial of his motion to suppress
evidence. AFFIRMED.
Marcus D. Gamblin, Fort Madison, appellant pro se.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Vogel and Bower, JJ.
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VOGEL, J.
Marcus Gamblin appeals following his convictions for first-degree robbery,
in violation of Iowa Code section 711.2 (2011); possession of a controlled
substance with intent to deliver while in the immediate possession or control of a
firearm, in violation of section 124.401(1)(d) and (1)(e); and possession of a
firearm as a felon, in violation of section 724.26. He claims on appeal the district
court should have granted his motion to suppress evidence because the officers
did not have reasonable suspicion to remove him, as a passenger, from the
vehicle or conduct a pat-down of his person. Because we agree with the district
court’s conclusion the officers had reasonable suspicion to both remove Gamblin
from the vehicle and conduct a pat-down of his person, we affirm the district
court’s denial of his motion to suppress.
I. Background Facts and Proceedings.
Police officers received a tip from a confidential informant on February 29,
2012, that Willie Phillips would participate in a robbery in a certain location in
Waterloo. Officer Nissen, an undercover police officer, was already investigating
Phillips as part of a narcotics investigation and observed a black Monte Carlo
outside of Phillips’s residence on the afternoon of February 29. Officer Nissen
informed Officer Girsch of the information in the tip and asked him to be around
the area that evening.
About four hours after receiving the tip, police dispatch received a call an
armed robbery had taken place at the Neighborhood Mart. This location was
approximately one mile from the location the confidential informant reported the
robbery would occur. The victim reported to dispatch the robber was a black
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male, wearing a ski mask and brandishing a handgun. The victim also reported
seeing the robber and an accomplice get into a light-colored, full-sized car.
Approximately twenty-five minutes after the dispatch regarding the
robbery, Officer Nissen observed a black Monte Carlo drive by his position. He
also noticed the license plate light was not functioning to illuminate the rear plate.
He called Officer Girsch and informed him of the location of the vehicle, the
equipment violation, that the vehicle was earlier under surveillance for a narcotics
investigation, and that it likely was involved in the robbery. Officer Girsch, who
was near the area, located the vehicle and pulled it over.1
As the suspect vehicle came to a stop, Officer Girsch and his partner,
Officer Gann, observed a black male rise from a lying-down position in the back
seat of the vehicle and then begin moving from side to side. Officer Girsch
observed the suspect’s right shoulder come up at an angle, which made it appear
the suspect was lifting his rear off the seat. With his prior experience, Officer
Girsch understood these types of “furtive movements” to be associated with
people concealing contraband by shoving items in the seat, in their pants, or in
their pockets. Both Officers Girsch and Gann verbally warned each other about
the movements and were concerned for their safety as they approached the
vehicle due to the movements coupled with the information they had received
from Officer Nissen that this vehicle may have been involved in the earlier armed
robbery.
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Officer Girsch was in a marked police vehicle with Officer Gann. Officer Nissen was in
an unmarked police vehicle and, as a result, could not conduct the stop.
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The officers identified the suspect in the back seat as Marcus Gamblin.
Willie Phillips was the front seat passenger, and the vehicle was being driven by
the vehicle’s owner, Medeese Jenkins. Approximately six minutes into the stop,
and after showing Jenkins the malfunctioning light, Officer Girsch asked Gamblin
to step out of the vehicle. The officer advised Gamblin multiple times to keep his
hands visible; Gamblin allowed his hands to go down by his waist several times.
While Gamblin, a large man, may have had some difficulty exiting a two-door
vehicle from the back seat, he appeared to the officers to be stalling. Gamblin’s
hand movements were a red flag to Office Girsch. Once out of the vehicle,
Gamblin’s hands again went toward his waistband. Officer Girsch advised him to
put his hands on the roof of the vehicle; Gamblin complied, and Officer Girsch
placed him in handcuffs for the officers’ safety. A pat-down search was
conducted, and Officer Girsch located a handgun in Gamblin’s pocket. Other
officers on the scene observed, in plain view, a baggie with a powdery substance
on the floorboard of the back seat of the car where Gamblin’s feet were, as well
as a ski mask near the front passenger seat.
After charges were filed against Gamblin, he filed a motion to suppress
the evidence obtained as a result of the stop, asserting the officers lacked
reasonable suspicion to remove him from the vehicle or conduct a pat-down.
After a hearing involving the testimony of Officers Nissen, Girsch, and Gann and
Medeese Jenkins, the district court denied the motion. The case proceeded to
trial where Gamblin was found guilty. He was sentenced to twenty-five years
with a mandatory seventy-percent minimum on the first-degree-robbery
conviction, five years on the possession-of-a-firearm-as-a-felon conviction, and
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ten years on the possession-with-intent conviction. The robbery and possession-
with-intent convictions were ordered to be served consecutively, but the felon-in-
possession-of-a-firearm conviction was ordered to be served concurrently, for a
total term of incarceration of thirty-five years. Gamblin appeals the denial of his
motion to suppress.
II. Scope and Standard of Review.
Our review of the district court’s denial of a motion to suppress based on
an alleged constitutional violation is de novo. State v. Pals, 805 N.W.2d 767, 771
(Iowa 2011). We conduct an independent evaluation of the totality of the
circumstances as shown by the entire record. Id. We give deference to the
district court’s factual findings because of its opportunity to evaluate the
credibility of the witnesses, but we are not bound by those findings. Id.
III. Analysis.
Gamblin admits the vehicle in which he was riding was validly stopped for
the equipment violation. However, he claims the officers did not have reasonable
suspicion to remove him, as a passenger, from the vehicle or conduct a pat-down
search. He also acknowledges that the United States Supreme Court has ruled
“an officer making a traffic stop may order passengers to get out of the car
pending completion of the stop” under the Fourth Amendment. See Maryland v.
Wilson, 519 U.S. 408, 415 (1997). However, he asks that we interpret the Iowa
Constitution more narrowly and afford passengers additional protection against
searches and seizures by requiring officers to have “articulable and objective
reasons that would lead a reasonable officer to be concerned for his safety or the
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safety of others” before removing a passenger from a vehicle. He cites no Iowa
cases that have so held, and we find none.
Even if we were to agree the Iowa Constitution should require such a
reasonable-suspicion standard before passengers could be removed from a
vehicle, we conclude, as did the district court, the officers in this case had
reasonable suspicion, justifying Gamblin’s removal from the vehicle and the
subsequent pat-down. In denying the motion to suppress, the district court
stated:
Girsch testified he did not feel safe with Gamblin in the rear
of the vehicle. Gamblin had made numerous furtive movements
indicative of possessing or hiding contraband or a weapon.
Officers knew a robbery had just occurred and that the suspect had
brandished a gun. They observed him move in such a fashion that
it appeared he was tucking something into his pants or into the
seat. A reasonable interpretation of these movements was that
Gamblin was hiding or retrieving a gun, thus understandably
causing officers to be concerned for their safety.
Once Gamblin was out of the car, Girsch had the right to
perform a pat-down search. That pat-down search was reasonable
and justified under the circumstances.
Gamblin disagrees with the district court’s findings, pointing out that
dispatch did not relay any information connecting the black Monte Carlo to the
robbery, the victim reported the vehicle involved was “light-colored,” the officers
took six minutes to remove him from the vehicle, indicating to him they did not
reasonably fear for their safety, and there were a number of innocent reasons he
could have been making the movements he made in the back seat as the officers
approached. The reasonable-suspicion standard does not require officers to rule
out the possibility of innocent behavior before initiating a stop. State v. Kreps,
650 N.W.2d 636, 642 (Iowa 2002); see also Alabama v. White, 496 U.S. 325,
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330 (1990) (“Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to establish
probable cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.”).
After our de novo review of the facts and applicable law in this case, we
agree with the district court. Both officers testified that Gamblin’s movements in
the back seat, along with the information they had received from Officer Nissen
and dispatch regarding the very recent armed robbery, the connection between
this vehicle and Phillips, and the connection between Phillips and the robbery,
gave them reasonable suspicion to believe their safety, or the safety of others,
was at risk. The officers were justified in asking Gamblin to exit the vehicle.
Gamblin’s actions in failing to keep his hands away from his waistband as he
exited the vehicle gave the officers additional reasons to conduct the pat-down
search.
Even under the more restricted interpretation of the search-and-seizure
protections of the Iowa Constitution proposed by Gamblin in this case, we find
the removal of Gamblin from the vehicle and the subsequent pat-down valid. We
therefore affirm the district court’s denial of his motion to suppress.
Gamblin raises two claims in his pro se brief. First, he alleges the district
court made multiple errors in its factual findings. We have reviewed the errors
alleged and reviewed the record de novo. We do not find any of the alleged
errors had any effect on the ultimate conclusion of the district court. See Pals,
805 N.W.2d at 771 (noting our de novo review includes the totality of the
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circumstances as shown by the entire record). Gamblin also asserts his trial
counsel was ineffective when counsel failed to play the video of the traffic stop
for the court at the hearing. We note the video was admitted as evidence at the
suppression hearing and available to the court for viewing after the hearing. We
find neither a breach of a duty nor prejudice as a result of the video not being
played for the court during the actual suppression hearing. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (setting out the applicable standard to
prevail on a claim of ineffective assistance of counsel).
We affirm Gamblin’s convictions and sentences.
AFFIRMED.