IN THE COURT OF APPEALS OF IOWA
No. 16-0985
Filed June 21, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BOBBY RAY KLINGER SR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
Bobby Ray Klinger Sr. appeals from his conviction and sentence for
possession of a controlled substance, third or subsequent offense. AFFIRMED.
Colista K. Anglese of Hammer Law Firm, P.L.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.
Bobby Ray Klinger Sr. appeals from his conviction and sentence for
possession of a controlled substance, third or subsequent offense, a class “D”
felony, in violation of Iowa Code section 124.401(5) (2015). Klinger asserts the
trial court erred in denying his motion to suppress. Klinger also contends trial
counsel rendered ineffective assistance. On our de novo review, we affirm the
district court’s denial of Klinger’s motion to suppress. We also conclude the
record is inadequate to address Klinger’s ineffective-assistance-of-counsel
claims, and we preserve such claims for possible postconviction-relief
proceedings.
I. Background Facts & Proceedings.
On November 5, 2015, at approximately 9:30 p.m., Officer Brian Kelley
initiated a traffic stop of Klinger’s vehicle for failure to display headlamps, in
violation of Iowa Code section 321.384. Officer Kelley testified the vehicle’s
parking lights were on, but Klinger had not turned on the headlights. The video
from Officer Kelley’s squad car dash camera affirmatively shows the headlights
on Klinger’s vehicle were not as bright as the vehicles traveling nearby and one
of the headlights was not working.
Klinger pulled the vehicle to the side of the road, and Officer Kelley and
Officer Andrew Becker approached the vehicle. Klinger was cooperative and
provided the requested license and registration information. However, Officer
Kelley discovered the license plate affixed to Klinger’s vehicle belonged to a
different vehicle owned by someone other than Klinger. Klinger explained the
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improper registration was due to the fact he purchased the vehicle approximately
one month prior.
Officer Kelley ordered Klinger to exit the vehicle, performed a pat-down of
Klinger’s person, and asked Klinger to sit on the curb near the rear of Klinger’s
vehicle. Officer Kelley returned to the squad car and also discovered Klinger was
on active parole for manufacturing methamphetamine. The dash camera video
then shows Officer Kelley walked back to Klinger and spoke with Klinger before
performing a second, more thorough search of Klinger’s person and a search of
his vehicle.
Officer Kelley stated he had
seen it before where drug dealers, users, will exchange vehicles for
narcotics, money, whatever. It was clear something was going on.
And with that background, that is why I asked him if he had used
any recently. And given the conditions of his parole, I was making
sure he was in compliance.
Officer Kelley testified that during the conversation prior to the second
search Klinger admitted to using methamphetamine that day and consented to
the search of his vehicle. Klinger denied providing consent. Unfortunately,
Officer Kelley’s body microphone was muted at the time Klinger’s consent to
search the vehicle was discussed. The body microphone was initially working
but was muted between the time Officer Kelley returned to the squad car after
Klinger was asked to sit on the curb and when Officer Kelley again approached
Klinger. Officer Kelley testified it was possible he bumped and accidentally
muted the microphone when he bent over. Officer Becker was standing next to
Klinger during the conversation in question but did not testify at the motion-to-
suppress hearing.
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While searching Klinger’s vehicle, Officer Kelley discovered a substance
later identified as methamphetamine and a number of syringes inside a backpack
located in the front passenger compartment. Klinger was then arrested for
possession of a controlled substance, third or subsequent offense. Klinger was
also cited for failure to display headlamps.
On February 19, 2016, Klinger filed a motion to suppress the evidence
discovered during Officer Kelley’s search of his vehicle. Klinger asserted there
was no probable cause for the traffic stop, the officers exceeded the scope of the
traffic stop, and he did not consent to the search of his vehicle. The motion to
suppress was denied.
Klinger stipulated to a trial on the minutes, which was held on June 2,
2016. The court found Klinger guilty of possession of a controlled substance,
third or subsequent offense, and sentenced Klinger to a term of incarceration not
to exceed five years, to run consecutively to his sentence for his parole
revocation.
Klinger now appeals.
II. Standard of Review.
“We review the district court’s denial of a motion to suppress on
constitutional grounds de novo.” State v. Coleman, 890 N.W.2d 284, 286 (Iowa
2017). We also review ineffective-assistance-of-counsel claims de novo. State
v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). “This review requires ‘an
independent evaluation of the totality of the circumstances as shown by the
entire record.’” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) (citation
omitted). “We give considerable deference to the trial court’s findings regarding
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the credibility of the witnesses, but are not bound by them.” State v. Tague, 676
N.W.2d 197, 201 (Iowa 2004).
III. Analysis.
On appeal, Klinger contends the court erred in denying his motion to
suppress because the officers did not have probable cause to initiate the traffic
stop and the warrantless search of Klinger’s vehicle was carried out without
probable cause or legal justification. Klinger also contends trial counsel rendered
ineffective assistance.
A. Motion to Suppress.
Klinger maintains the officers’ seizure of Klinger by initiating the traffic stop
and search of his vehicle violated his right to be free from unreasonable searches
and seizures under the Fourth Amendment to the United States Constitution and
article I, section 8 of the Iowa Constitution.
1. Stop. First, we consider Klinger’s argument with respect to the traffic
stop. “A traffic stop is permissible under our Iowa and Federal Constitutions
when supported by probable cause or reasonable suspicion of a crime.” State v.
McIver, 858 N.W.2d 699, 702 (Iowa 2015). “When a peace officer observes any
type of traffic offense, the violation establishes both probable cause to stop the
vehicle and reasonable suspicion to investigate.” Id.
Klinger testified at the hearing on the motion to suppress, and maintains
on appeal, his headlights were on at the time he was stopped. However, Officer
Kelley testified he observed only Klinger’s parking lights were on and his
headlights were not illuminated. Officer Kelley stated upon approaching Klinger’s
vehicle he told Klinger his headlights were not on and instructed him to turn the
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knob. Officer Kelley testified Klinger then turned the knob and the lights turned
on. The dash camera video provides little help in ascertaining any increased
illumination after Officer Kelley instructed Klinger to turn on the headlights. 1 But
the dash camera video of Klinger’s vehicle driving past the law enforcement
vehicle shows Klinger only had one working headlight. Because the officers
observed Klinger to be in violation of Iowa Code sections 321.384, .385, or .419,
there was probable cause supporting the initiation of the traffic stop.
2. Search. Next, we consider whether Officer Kelley’s search of Klinger’s
vehicle violated his constitutional rights. “Warrantless searches are per se
unreasonable if they do not fall within one of the well-recognized exceptions to
the warrant requirement.” State v. Lowe, 812 N.W.2d 554, 568 (Iowa 2012)
(citation omitted). “Consent searches are one of these exceptions.” Id. “To be
valid, consent must be voluntary.” Id.
Officer Kelley testified, and the State maintains, Klinger consented to the
search of his vehicle. Klinger denies that he provided consent. It is troubling that
the body microphone was muted at the time Officer Kelley alleged Klinger
provided consent, as is the State’s failure to call Officer Becker to testify.
Nonetheless, the district court found Officer Kelley’s testimony more credible.
Upon our examination of the transcript of testimony, we decline to diverge from
the district court’s credibility determination. See State v. Lane, 726 N.W.2d 371,
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In support of his assertion the headlights were on when he was stopped, Klinger relies
on the testimony of a private investigator who examined Klinger’s vehicle months after
the incident. The private investigator noted the vehicle had an automatic headlights
system but stated the automatic function can be turned on and off by simply turning a
knob. The private investigator’s testimony does not support any finding with respect to
whether the headlights were or were not turned on at the time the officers initiated the
traffic stop.
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379 (Iowa 2007) (“The district court stated ‘it carefully considered the conflicts in
testimony’ and found the ‘officers to be more credible.’ While we are not bound
by these determinations, we give deference to the credibility determinations by
the district court.”).
The court also found Klinger’s consent was given voluntarily. Factors to
be considered in determining the validity of consent include: (1) “knowledge by
the defendant of the right to refuse to consent,” (2) “whether police asserted any
claim of authority to search prior to obtaining consent,” (3) “[t]he show of force or
other types of coercive action” as well as “the use of deception by police,” (4) “a
threat by police to obtain a search warrant and forcibly execute it,” and (5) “[t]he
existence of illegal police action just prior to the time the consent is given.” State
v. Reiner, 628 N.W.2d 460, 465 (Iowa 2001). The district court held:
[T]he court finds Defendant gave consent to search the vehicle.
Here, Defendant was not detained at the time of the consent to
search. He was seated on the curb without handcuffs near the rear
of his car. Officer Kelley explained why he was conducting further
investigation at the time he asked Defendant to exit his vehicle.
Although Klinger was not advised of his right to leave or his right to
voluntarily refuse consent, Klinger testified he studied to be a
paralegal and was aware of his right to voluntarily refuse consent.
Officer Kelley subjected Klinger to a pat-down before and after
Officer Kelley asked him if he could search the vehicle. The stop
was temporary, brief, and public; in all respects a typical traffic stop.
We add that in the dash camera video during the time Officer Kelley testified he
sought consent, Klinger is observed affirmatively nodding, although we do not
know if this was in response to the request to search. Moreover, Klinger remains
calm even while Officer Kelley is searching the vehicle, but again, we do not
know if Klinger was just being compliant or had consented to the search.
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Upon our de novo review of the record, we adhere to the district court’s
credibility finding and conclude Klinger provided voluntary consent to the search
of his vehicle. Therefore, the search did not violate Klinger’s constitutional rights.
Because we find sufficient probable cause supported the traffic stop and
Klinger consented to Officer Kelley’s search of his vehicle, we affirm the district
court’s denial of Klinger’s motion to suppress.
B. Ineffective Assistance.
Klinger also contends trial counsel was ineffective in failing to raise
arguments regarding sentencing and failing to depose the State’s witnesses. To
prevail on an ineffective-assistance-of-counsel claim, Klinger “must show by a
preponderance of the evidence that his trial counsel failed to perform an
essential duty and prejudice resulted.” State v. Ondayog, 722 N.W.2d 778, 784
(Iowa 2006). However, “[o]nly in rare cases will the trial record alone be
sufficient to resolve the claim on direct appeal.” Straw, 709 N.W.2d at 133.
“Because ‘[i]mprovident trial strategy, miscalculated tactics, and mistakes in
judgment do not necessarily amount to ineffective assistance of counsel,’
postconviction proceedings are often necessary to discern the difference
between improvident trial strategy and ineffective assistance.” Ondayog, 722
N.W.2d at 786 (citation omitted).
The record is insufficient to discern trial counsel’s strategy with respect to
the allegations of ineffective assistance as raised by Klinger. We therefore
preserve Klinger’s ineffective-assistance claims for possible postconviction-relief
proceedings.
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IV. Conclusion.
On our de novo review, we affirm the district court’s denial of Klinger’s
motion to suppress. We also conclude the record is inadequate to address
Klinger’s ineffective-assistance-of-counsel claims, and we preserve such claims
for possible postconviction-relief proceedings.
AFFIRMED.