IN THE COURT OF APPEALS OF IOWA
No. 16-0441
Filed November 23, 2016
AURELIO JAVIER ORTIZ,
Petitioner-Appellee,
vs.
STATE OF IOWA,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
The State appeals a district court order granting postconviction relief to
applicant. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellant State.
Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.
Aurelio Ortiz pleaded guilty in 2013 to possession of methamphetamine
with the intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7)
(2011). He did not file a direct appeal of his conviction, but he did seek
postconviction relief. Ortiz claimed he received ineffective assistance of counsel
because his trial counsel failed to file a motion to suppress drug evidence
obtained as a result of an allegedly unlawful search and seizure. The district
court granted Ortiz’s application for postconviction relief. The State now appeals.
I.
On November 25, 2012, Des Moines police officer Todd Wilshusen was
on duty when he observed a vehicle without a front license plate. Officer
Wilshusen initiated a traffic stop. While speaking with the driver, Ortiz,
Wilshusen identified the smell of marijuana coming from inside the vehicle.
Wilshusen asked Ortiz where the marijuana was, and Ortiz responded the
occupants of the vehicle had used marijuana in the car earlier that day. Officer
Wilshusen asked the occupants to exit the vehicle. He and two other officers
who had arrived at the scene then conducted a search of the vehicle. During the
search, the officers located marijuana, methamphetamine, drug paraphernalia,
and a handgun.
On December 18, the State filed an eight-count trial information against
Ortiz. The same day, Ortiz was indicted in federal court for illegal transfer of
firearms and being a felon in possession of a firearm, both charges arising out of
the same offense conduct at issue in the state court proceeding. Ortiz retained
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private counsel to represent him in state court, and he was appointed different
counsel for the federal charges.
Both the state and federal charges were resolved by plea agreement.
With respect to the state court proceeding, Ortiz did not file a motion to suppress
evidence. He ultimately pleaded guilty to one charge, stipulated to a sentencing
enhancement under Code section 124.411, and was sentenced to forty-five
years in prison with a mandatory minimum of fifteen years. In the federal
proceeding, Ortiz did file a motion to suppress evidence, claiming the search of
his vehicle was unlawful. The motion to suppress evidence was denied. Ortiz
then pleaded guilty to the charge of felon in possession of a firearm and was
sentenced to sixty-six months of incarceration. The denial of his motion to
suppress evidence and his conviction were affirmed on appeal. See United
States v. Ortiz, No. 14-1093, 2014 WL 4637118, at *2 (8th Cir. Sept. 18, 2014).
As stated above, at issue in the instant postconviction-relief proceeding
was whether Ortiz’s counsel was ineffective in failing to file a motion to suppress
evidence. Specifically, whether counsel should have argued the search of Ortiz’s
vehicle was unlawful under article I, section 8 of the Iowa Constitution based on
recent case law developments calling into question the viability of the long-
standing automobile exception to the warrant requirement. The district court
granted Ortiz’s application, determining the viability of the automobile exception
under the Iowa Constitution was in serious doubt and, as a result, Ortiz’s motion
to suppress would have been granted. Therefore, it held Ortiz’s counsel
breached an essential duty by failing to bring a motion to suppress and Ortiz was
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prejudiced because the success of the motion would have rendered a state
conviction impossible.
II.
We review claims of ineffective assistance of counsel de novo. See State
v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To prove ineffective assistance of
counsel, an applicant must show his trial counsel breached an essential duty and
prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
With respect to breach of duty, there is a strong presumption counsel’s
performance fell within the range of reasonable professional assistance. See
Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). With respect to prejudice,
the applicant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
The district court found Ortiz’s counsel breached an essential duty when
counsel failed to challenge the automobile exception to the warrant requirement.
As such, it behooves us to examine the exception. “‘A warrantless search is
presumed unreasonable’ unless an exception applies.” State v. Gaskins, 866
N.W.2d 1, 7 (Iowa 2015) (citation omitted). One such exception is the
automobile exception, which initially allowed “warrantless searches of vehicles
based on probable cause . . . as it would be impracticable to require officers to
secure a warrant ‘because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant may be sought.’” State v. Allensworth, 748
N.W.2d 789, 792 (Iowa 2008) (citing Carroll v. United States, 267 U.S. 132, 153
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(1925)). Later development of the doctrine “noted the exception is also justified
based on the reduced expectation of privacy, as compared to the home or office,
that individuals have in their automobiles.” Id. at 794 (citing California v. Carney,
471 U.S. 386, 391 (1985)). In 1980, our supreme court adopted the automobile
exception under article I, section 8 of the Iowa Constitution. See State v. Olsen,
293 N.W.2d 216, 220 (Iowa 1980). Olsen has not been overruled and remains
the controlling legal authority on whether the automobile exception is recognized
under the Iowa Constitution.
Even though Ortiz’s motion would have failed on the merits under Olsen,
the district court concluded Ortiz received ineffective assistance of counsel. In
reaching this conclusion, the district court found counsel breached an essential
duty in not challenging Olsen. The district court also found Ortiz suffered
constitutional prejudice because the motion to suppress would have been
successful despite controlling legal authority to the contrary. The district court
considered the following factors in reaching this conclusion:
Taken in total, at the end of a basic investigation trial counsel would
have uncovered the following information: (1) in Iowa, prevailing
professional norms indicate a responsibility to raise meritorious
state constitutional arguments; (2) modern technology is
challenging the rationale supporting the automobile exception to the
warrant requirement; and (3) the Iowa Supreme Court has
demonstrated a willingness to fashion a body of Iowa constitutional
law independent of federal precedent.
We address the same factors as the district court.
As noted by the district court, prevailing professional norms do indicate a
responsibility to raise meritorious state constitutional arguments. It has been
repeatedly stated Iowa appellate courts “jealously guard” the ability to interpret
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the Iowa Constitution differently from the United States Constitution and provide
greater protection under the Iowa Constitution. See State v. Baldon, 829 N.W.2d
785, 820–21 (Iowa 2013) (collecting cases in which our supreme court has done
so). But see State v. Bohl, No. 15-1546, 2016 WL 4543957, at *2 (Iowa Ct. App.
Aug. 31, 2016) (“The right question, is not whether a state’s guarantee is the
same as or broader than its federal counterpart as interpreted by the Supreme
Court. The right question is what the state’s guarantee means and how it applies
to the case at hand.”). This is perhaps especially true where the texts differ, as
the relevant sections do here. Compare Iowa Const. art. I, § 8 (“The right of the
people to be secure in their persons, houses, papers and effects, against
unreasonable seizures and searches shall not be violated; and no warrant shall
issue but on probable cause, supported by oath or affirmation, particularly
describing the place to be searched, and the persons or things to be seized.”),
with U.S. Const. amend. IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”). Our supreme court has
concluded the semicolon in the Iowa Constitution has great legal significance in
that it places more emphasis on the warrant requirement than the Federal
Constitution. See State v. Short, 851 N.W.2d 474, 501–02 (Iowa 2014)
(reviewing textual and structural arguments). In several cases, our supreme
court has broken with recent United States Supreme Court precedent to
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distinguish search-and-seizure protections in Iowa. See Short, 851 N.W.2d at
506; State v. Ochoa, 792 N.W.2d 260, 287–91 (Iowa 2010).
It is additionally true that advances in technology may undermine the
stated rationale for the automobile exception. See Gaskins, 866 N.W.2d at 17
(Cady, C.J., concurring specially) (“An automatic exception to the warrant
requirement, particularly one based on exigency, must account for the new world
of technology, and must not continue to exist simply because it existed in the
past.”). However, this does not necessarily mean the automobile exception
cannot and should not be justified for other reasons.
Finally, as noted by the district court, the Iowa Supreme Court has
demonstrated a willingness to fashion its own search-and-seizure doctrine under
the Iowa Constitution. Indeed, the defense bar has been implored repeatedly to
assert more state constitutional claims to allow for more development in the area.
See id. at 34 (Appel, J., concurring specially) (stating “defense counsel should
have a working knowledge of the larger state constitutional trends around the
country”); Short, 851 N.W.2d at 489–90 (“In addition to readily searchable
caselaw, there is now a very large volume of readily accessible secondary
materials discussing just about every aspect of state constitutional law. A diligent
lawyer thus has ready access to the materials necessary to develop state
constitutional law arguments.”); Baldon, 829 N.W.2d at 816 (Appel, J., concurring
specially) (writing “no lawyer worth his or her salt can be a good advocate in
today’s world without appreciating the possibility—and value—of raising state
and federal constitutional claims in representing a client”); State v. Effler, 769
N.W.2d 880, 895 (Iowa 2009) (Appel, J., concurring specially) (“In light of our
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jealously guarded right and duty to differ in our interpretation of state
constitutional provisions, counsel should be attentive to the possibility that we
might not follow Supreme Court precedent in cases involving the interpretation of
the Iowa Constitution.”).
Even though we agree with many of the district court’s basic assumptions,
we disagree with the conclusion that those assumptions entitle Ortiz to any relief.
First, while it is true our supreme court has emphasized defense counsel has a
duty to raise meritorious state law claims, there is no duty to challenge long-
standing case law. See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Moreover, it is a step too far to find, as a matter of law, that defense counsel
breached a constitutional duty owed his client and failed to perform competently
by not filing a motion to suppress evidence contrary to ninety years of federal law
and thirty-two years of state law.
Second, it is clear counsel made a strategic decision to not challenge the
drug evidence. Specifically, Ortiz’s drug charges would have been referred for
federal prosecution if Ortiz fought them in state court. This would have increased
Ortiz’s criminal exposure significantly. Ortiz’s trial counsel testified:
Even if he had grounds to file a legitimate motion to
suppress, even if I thought – we discussed this. Even if I thought
he could win on a motion to suppress, my advice to Mr. Ortiz was
you really wouldn’t want to do that anyway because it was made
very clear that if Mr. Ortiz fought the State, filed a motion to
suppress, did discovery, [the prosecutor] was going to refer the
drug case to the feds also.
And if that case was referred to the feds and if he wasn’t
successful on a motion to suppress, the time he would do in prison
would be a heck of a lot higher than what he was facing in state
court.
Discussing that with Mr. Ortiz, the fact that he didn’t feel as
though he had a valid motion to suppress but also the fact that
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even if he did, he should work a deal and keep his drug case in
state court, that’s why we made the decision we did. It wasn’t
based on an analysis by itself of whether he had a valid motion to
suppress.
We are reluctant to second-guess good-faith efforts: “Improvident trial strategy,
miscalculated tactics, and mistakes in judgment do not necessarily amount to
ineffective assistance of counsel.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa
1995). And “strategic decisions made after ‘thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.’” Ledezma v.
State, 626 N.W.2d 134, 143 (Iowa 2001) (quoting Strickland, 466 U.S. at 690).
On de novo review, we find counsel undertook a thorough investigation of
the pertinent law and facts and arrived at a reasonable strategic decision—to wit,
avoiding federal prosecution on drug charges for his client where there was no
doubt the motion to suppress evidence would fail under federal law and the
defendant would be exposed to a significantly more severe sentence. See
Kimmelman v. Morrison, 477 U.S. 365, 384–85 (1986) (stating “the failure to file
a suppression motion does not constitute per se ineffective assistance of
counsel” and noting there might be strategic reasons for foregoing the motion);
United States v. Rosario–Puente, 41 Fed. Appx. 483, 484 (1st Cir. 2002) (stating
that in light of the reduced sentence the petitioner received, “no doubt due in part
to his agreement to withdraw the motion to suppress and plead guilty, trial
counsel’s advice seem[ed] eminently reasonable”); Tobbie v. United States, Nos.
7:10-CV-90084, 7:06-CR-17, 2013 WL 4008631, at *6 (M.D. Ga. Aug. 4, 2013)
(holding it was “within the wide range of acceptable professional conduct” to
forego motion to suppress to obtain sentencing or charging concessions); Morris
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v. United States, Nos. 2:06-cv-00938, 2:05-cr-00125, 2008 WL 4763223, at *5
(S.D. W. Va. Oct. 27, 2008) (holding counsel was not ineffective in foregoing
motion to suppress “to minimize his client’s exposure to additional charges, while
attempting to secure a reduced sentence for substantial assistance”); Ramos v.
State, 559 So. 2d 705, 706 (Fla. Dist. Ct. App. 1990) (holding counsel was not
ineffective in failing to file motion to suppress where case law at the time allowed
search); People v. Williams, No. 4-13-1092, 2016 WL 482418, at *4 (Ill. App. Ct.
Feb. 4, 2016) (holding counsel was not ineffective where counsel advised the
defendant to plead guilty to state charges to avoid referral to federal prosecutor).
Because we find no breach of an essential duty, we need not consider the
prejudice element of Ortiz’s claim. See Dempsey v. State, 860 N.W.2d 860, 868
(Iowa 2015) (“If we conclude a claimant has failed to establish either of these
elements, we need not address the remaining element.”).
III.
For the foregoing reasons, we reverse the judgment of the district court
granting Ortiz’s application for postconviction relief and remand for further
proceedings.
REVERSED AND REMANDED.