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Date: 04-21-2017

Case Style:

STATE OF IOWA vs. MARK L. KEMP

Iowa Court of Appeals

Case Number: 16-0129

Judge: Amanda Potterfield

Court: IN THE COURT OF APPEALS OF IOWA

Plaintiff's Attorney: n

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General

Defendant's Attorney: n

Jesse A. Macro Jr.

Description: On February 27, 2015, Kemp was charged by trial information with the
following: one count of possession of a controlled substance with intent to
deliver, in violation of Iowa Code section 124.401(1)(c)(3) (2015); one count of
failure to possess a tax stamp, in violation of sections 453B.3 and 453B.12; one
count of interference with official acts causing injury, in violation of section 719.1;
and, one count of possession of a controlled substance, in violation of section
124.401.
On March 15, 2015, Kemp waived formal arraignment and pled not guilty
to the above charges. On May 7, 2015, Kemp filed a motion to suppress alleging
the evidence supporting the three drug counts was discovered in an illegal pat
down search. Both parties filed written briefs, and a suppression hearing was
held on July 7, 2015.
At the hearing, Officers Morgan and Becker testified about their encounter
with Kemp. On or about January 23, 2015, Becker received an anonymous tip
about potential drug-trafficking activity involving a specifically described car. The
tipster allegedly identified an orange Dodge Avenger, with a specific license plate
number, driven by a man matching Kemp’s physical description in his forties or
fifties, who was engaged in activities consistent with narcotic sales. The tipster
also disclosed drugs were seen in the vehicle. At 1:30 a.m. on January 24,
Becker noticed an orange Dodge Avenger parked in an empty parking lot at a
closed business under a “No Parking” sign. The car was located adjacent to a
bar known by the police for gun and drug activity. The driver’s seat was empty,
and a woman was sitting alone in the passenger seat. Upon further
investigation, the police verified the car’s license plate number matched the
information from the tipster. The district court made the following additional
factual findings regarding the officers’ testimony:
At the time the officers approached the vehicle the lone occupant was Rhonda Claiborne, the owner of the vehicle. Claiborne was sitting in the front passenger seat of the car at that time. Morgan, while speaking to Claiborne, noticed several parts of plastic baggies sticking out of the center console of the car, which
4
he recognized as baggies used in the drug industry. As this conversation was occurring, defendant, Mark Kemp, approached the vehicle by Becker and inquired why the officers were there. Kemp indicated to Becker that he came to the bar in the orange Dodge. Becker at that time requested identification from Kemp. Kemp was unable to provide any identification. Becker also testified that Kemp fit the description of the individual given to him by the concerned citizen. Becker then conducted a pat-down search of Kemp out of a concern that he
posed a threat to the officers’ safety. During the pat-down search, Becker
noticed that Kemp was making furtive movements consistent with an individual
trying to conceal items. Becker also felt a substance in Kemp’s right pocket
consistent with small bundles of crack cocaine. Becker testified that he did not
reach into the pocket at that time. He summoned Morgan to help detain Kemp,
who then attempted to flee by jumping over the rear of the car. The officers
subdued him and ultimately placed Kemp under arrest. Crack cocaine and
marijuana were discovered in Kemp’s right, front pocket after he was placed
under arrest.
In its September 13, 2015 order, the district court denied Kemp’s motion to
suppress on both the procedural ground and on the merits. First, the court
denied Kemp’s motion “for his failure to file the motion within 40 days of his
arraignment in violation of Iowa Rule of Criminal Procedure 2.11(4) and he failed
to present any grounds that would constitute good cause to excuse the late
filing.” Second, the court denied the motion on the merits, finding the search was
constitutional under both the federal and state constitutions. A bench trial was
held on the minutes of testimony, and the court found Kemp guilty of possession
5
of crack cocaine with intent to deliver, interference with official acts causing
injury, and possession of marijuana. Kemp appeals.
II. Standard of Review.
“We review the district court’s good cause determination regarding the
timeliness of a motion to suppress for an abuse of discretion.” State v. Ortiz, 766
N.W.2d 244, 249 (Iowa 2009); State v. Ruhs, 885 N.W.2d 822, 825 (Iowa Ct.
App. 2016). “We will not find an abuse of discretion unless the trial court’s action
was clearly untenable or unreasonable.” State v. Eldridge, 590 N.W.2d 734, 736
(Iowa Ct. App. 1999).
Claims of ineffective assistance of counsel are reviewed de novo. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006).
We review Kemp’s claim the district court should have granted his motion
to suppress on federal and state constitutional grounds de novo. See State v.
Lane, 726 N.W.2d 371, 377 (Iowa 2007). In doing so, we consider the entire
record and independently evaluate the totality of the circumstances. See State v.
Turner, 630 N.W.2d 601, 606 (Iowa 2001). “We give deference to the district
court’s fact findings due to its opportunity to assess the credibility of witnesses,
but we are not bound by those findings.” Id.
III. Discussion.
Kemp claims the trial court erred in denying his motion to suppress and
his trial counsel was ineffective for failing to timely file the motion to suppress.
A. Motion to Suppress.
The Iowa Rules of Criminal Procedure require that motion-to-suppress
evidence be presented prior to trial. See Iowa R. Crim. P. 2.11(2). Specifically, a
6
motion to suppress “shall be filed . . . no later than 40 days after arraignment.”
Iowa R. Crim. P. 2.11(4). “Absent a showing of good cause, an untimely motion
to suppress constitutes waiver of the grounds forming the basis for the motion.”
Eldridge, 590 N.W.2d at 736; Ruhs, 885 N.W.2d at 825; see also Iowa R. Crim.
P. 2.11(3). “What constitutes good cause for an untimely motion to suppress is a
discretionary decision of the trial court.” Eldridge, 590 N.W.2d at 736; Ruhs, 885
N.W.2d at 825. “The district court should consider both the defendant’s stated
reasons for failing to comply with the rules and whether the State was prejudiced
as a result, and should weigh the defendant’s interest in a full and fair trial
against the State’s interest in avoiding surprise and unnecessary delays.” Ruhs,
885 N.W.2d at 826.
Kemp was arraigned on March 13, 2015, and he did not file the motion to
suppress until May 7, 2015, fifty-five days after the arraignment and fifteen days
after the forty-day deadline. See Iowa R. Crim. P. 2.11(4). In the motion, Kemp
failed to articulate any reason for the untimely filing, and the district court found
Kemp “failed to establish any grounds that would constitute good cause to
excuse the late filing.” The State challenged the timeliness of Kemp’s motion in
its resistance. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding the
appellate courts “will not consider a substantive or procedural issue for the first
time on appeal, even though such issue might be the only ground available to
uphold a district court ruling”). Accordingly, the district court was within its
discretion in denying Kemp’s motion to suppress on the ground it was untimely.
The court went on to rule on the merits of the motion; we also review the merits
7
in the context of the prejudice prong of Kemp’s claim his counsel was ineffective
for filing a late motion.
B. Ineffective Assistance of Counsel.
Kemp argues his trial counsel was ineffective for failing to file a timely
motion to suppress.3 A defendant may raise an ineffective-assistance claim on
direct appeal if he has reasonable grounds to believe the record is adequate for
us to address the claim on direct appeal. Straw, 709 N.W.2d at 133. In order to
prevail on his claim of ineffective assistance of counsel, Kemp must establish
both that “(1) his trial counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice.” See Id. (citing Strickland v. Washington, 466 U.S.
668, 687–88 (1984)). Kemp must prove both elements by a preponderance of
the evidence. See id. With respect to the first prong, “we begin with the
presumption that the attorney performed competently” and “avoid second
guessing and hindsight.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Attorney action (or inaction) caused by improvident trial strategy, miscalculated
tactics, or mistakes in judgment does not necessarily amount to ineffective
assistance of counsel. See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa
2006).
We address the prejudice prong of Kemp’s ineffective-assistance-of
counsel claim first. In order to prove prejudice, Kemp “must show that there is a
reasonable probability that, but for counsel’s [untimely filing of the motion to
3 Kemp also mentions in his brief that filing the motion to suppress led to the State’s withdrawal of a favorable plea offer. Kemp fails to argue, however, that trial counsel should not have filed the motion to suppress. Therefore, we evaluate Kemp’s ineffective assistance-of-counsel claim based on his asserted claim of error, namely trial counsel’s failure to timely file the motion to suppress.
8
suppress], the result of the proceeding would have been different.” See
Strickland, 466 U.S. at 694. In other words, Kemp must show there is a
reasonable probability the motion to suppress would have been granted. If we
find that prejudice is lacking, we may decide his claim on that ground alone
without addressing his counsel’s performance. Ledezma, 626 N.W.2d at 142.
Kemp suggests he was prejudiced by the untimely filing of the motion to
suppress because the search was invalid. Specifically, Kemp argues the officer’s
reasons for searching Kemp—Kemp was in a high-crime neighborhood, drug
paraphernalia was present in the car, and Kemp placed himself in the car
through his own statements—were insufficient to establish reasonable suspicion.
The district court found, however, “The search [and] seizure of the drugs [that]
led to the charges against Kemp were constitutional under both the federal and
state constitutions.” We agree with the district court.
When police have reasonable suspicion that a crime is being or about to
be committed, they may conduct a pat-down search of a suspect. State v.
Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (citing Terry v. Ohio, 392 U.S. 1,
30–31 (1968)); see also Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (“[A]n
officer may, consistent with the Fourth Amendment, conduct a brief investigatory
stop when the officer has a reasonable articulable suspicion that criminal activity
is afoot.”). The purpose of a Terry search is “to determine whether the person is
in fact carrying a weapon,” and the search is “strictly ‘limited to that which is
necessary for the discovery of weapons which might be used to harm the officer
or others nearby.’” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting
Terry, 392 U.S. at 24, 26). “If the protective search goes beyond what is
9
necessary to determine if the suspect is armed, it is no longer valid under Terry
and its fruits will be suppressed.” Id. During a Terry search, an officer is
permitted to seize contraband without a warrant “[i]f a police officer lawfully pats
down a suspect’s outer clothing and feels an object whose contour or mass
makes its identity immediately apparent” as contraband. Id. at 375–76.
“In determining whether reasonable suspicion exists, we consider the
totality of the circumstances in light of the officers’ experience and specialized
training.” United States v. Cotter, 701 F.3d 544, 547 (8th Cir. 2012) (quoting
United States v. Preston, 685 F.3d 685, 689 (8th Cir. 2012)).
In determining the reasonableness of the particular search or seizure, the court judges the facts against an objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”

State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002) (quoting Terry, 392 U.S. at 21–
22). Additionally, “due weight must be given, not to [the officer’s] inchoate and
unparticularized suspicion or ‘hunch’ but to specific reasonable inferences which
he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at
21–22.
Generally, an anonymous tip regarding the observable location and
appearance of an individual is sufficient to establish reasonable suspicion when
the tip is “reliable in its assertion of illegality.” Florida v. J.L., 529 U.S. 266, 272
(2000) (emphasis added); Alabama v. White, 496 U.S. 325, 330 (1990); State v.
Kooima, 833 N.W.2d 202, 210–11 (Iowa 2013) (“[A] bare assertion by an
anonymous tipster, without relaying to the police a personal observation of
[criminal activity], other facts to establish the driver is [engaged in criminal
10
activity], or details not available to the general public as to the defendant’s future
actions does not have the requisite indicia of reliability to justify an investigatory
stop. Such a tip does not meet the requirements of the Fourth Amendment.”).
The defendant’s presence in a high-crime area4 alone is insufficient to establish
reasonable suspicion, but it is a relevant factor. Wardlow, 528 U.S. at 124;
Green, 2008 WL 680385, at *4.
Here, Officer Becker responded to an anonymous tip suggesting an
orange Dodge Avenger driven by a man the same race as Kemp in his forties or
fifties was engaging in activities consistent with narcotic sales. The tipster also
informed Becker that he observed drugs in the vehicle. Becker located the
vehicle matching the description and license plate of the anonymous tip in a high
crime area parked at a closed business at 1:30 in the morning. Kemp also
matched the description of the driver in the anonymous tip. Kemp approached
the officers and stated he arrived in the car, which by his own admission placed
him in the car prior to the encounter. Officer Morgan then alerted Becker that
there was drug paraphernalia in the vehicle. The officers corroborated the
identification and illegal activity in the content of the tip by verifying drug
paraphernalia was present in the car. The incident took place in a known high
crime area, and the officers were trained in narcotics identification. These factors
are sufficient to establish the reasonable inference that Kemp was committing or
about to commit criminal activity. Becker was permitted to conduct a pat-down
search based on officer safety and, upon feeling the items in Kemp’s pockets, a
4 High-crime areas can be established by complaints of drug-dealing activity and previous police encounters for drugs or weapons activity. See Wardlow, 528 U.S. at 124; State v. Green, 06-2051, 2008 WL 680385, at *4 (Iowa Ct. App. Mar. 14, 2008).
11
plain-feel search.5 Kemp’s constitutional rights under the Iowa and Federal
Constitutions were not violated.

Outcome:

Accordingly, even if Kemp’s counsel timely filed the motion to suppress, it would have not changed the result of the proceedings. Thus, Kemp has failed to establish that he suffered prejudice due to his counsel’s actions, and his claim of ineffective assistance fails.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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