Opinion
No. 0-725 / 99-2048.
Filed January 24, 2001.
Appeal from the Iowa District Court for Jefferson County, JAMES P. REILLY and DANIEL P. WILSON, Judges.
Defendant appeals following his convictions for manufacture of marijuana and failure to affix a drug tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Timothy W. Dille, County Attorney, for appellee.
Considered by STREIT, P.J., and VOGEL and MILLER, JJ.
William L. Lowe appeals following his convictions for manufacture of marijuana and failure to affix a drug tax stamp. We find Lowe failed to establish his trial counsel provided ineffective assistance and, therefore, we affirm.
Background facts . On May 24, 1999, Officer Greg Francisco received an anonymous tip advising him that Lowe was growing marijuana in his home and the location of the plants within the residence. The next day, Officer Francisco went to Lowe's home and knocked on the door. When Lowe answered the door, he conversed with Officer Francisco outside of the house for about forty-five minutes before agreeing to allow the officer to search the premises. Officer Francisco seized four marijuana plants.
Prior to trial, Lowe's attorney filed a motion to suppress the evidence, alleging entry into the home was not consensual. Although the motion was untimely the trial court overruled it on the merits and the seized evidence was admitted at trial. Lowe waived a jury trial and was convicted of manufacture of marijuana in violation of Iowa Code sections 124.204(4)(m) and 124.401(d) (1999) and failure to affix a drug tax stamp in violation of Iowa Code sections 453B.1(3)(c) and 453B.12 (1999). He now appeals claiming his counsel was ineffective.
Scope of review . Ineffective assistance of counsel claims are generally preserved for postconviction to allow trial counsel an opportunity to defend the charge. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981); State v. Nebinger, 412 N.W.2d 180, 191-92 (Iowa App. 1987). We depart from this preference, however, if the record on direct appeal is sufficient to evaluate the merits of a defendant's ineffective assistance of counsel claim. Id. To prevail on his claim of ineffective assistance of counsel, the defendant must ultimately show that his attorney's performance fell outside a normal range of competency and that the deficient performance so prejudiced him as to give rise to the reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Representation is presumed competent and a defendant has the burden to prove by a preponderance of the evidence that counsel was ineffective. Id.
Waiver of jury trial . Lowe contends his attorney was ineffective for failing to establish, on the record, that Lowe's waiver of his right to a jury trial was done voluntarily and intelligently. Iowa Rule of Criminal Procedure 16(1) states:
Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record . . .
Submitted to the court was a written waiver, signed by both Lowe and his attorney, stating, "The defendant herein hereby waives his right to a jury trial in the above-referenced cause." Additionally, before the trial, the court inquired as to whether Lowe consented to the waiver of a jury trial in the following colloquy:
The Court: [T]he file also reflects a written waiver of jury trial, filed November 4, 1999, which appears to have been signed by Defendant Lowe and his attorney Mr. Small.
Pursuant to Iowa Rule of Criminal Procedure 16, Mr. Dille, do you agree and consent to the waiver of jury trial at this stage by the defendant?
Mr. Dille: Yes, I do, Your Honor.
The Court: Mr. Small, does the Defendant consent to waiver of jury trial concerning this matter?
Mr. Small: Yes, Your Honor.
The Court: Is that correct, Mr. Lowe?
The Defendant: Yes, sir.
The present case is similar to State v. Lawrence, 344 N.W.2d 227, 230 (Iowa 1984), in which the defendant filed a written waiver of a jury trial, signed by himself and his attorney, and made no challenge thereto until the trial court rendered a guilty verdict. In that case, the supreme court found "[a] written jury waiver taken in compliance with rule 16(1) is prima facie evidence that the waiver was voluntary and intelligent." Id.; see also State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). Similarly, Lowe does not suggest why the waiver was involuntary, but merely asserts his attorney failed to prove on the record that it was voluntary and intelligent. On our review of the record, containing his written document and comments to the trial court, Lowe failed to meet his burden of proof to refute the voluntary nature of the waiver. Therefore, we find Lowe's attorney did not breach a duty to Lowe.
Motion to suppress . Lowe failed to timely file his motion to suppress before the trial court. This action was contrary to Iowa Rule of Criminal Procedure 10(4), requiring motions to be filed within forty days of arraignment. Without a showing of good cause, this error is fatal to his motion. Although the trial court decided the motion on the merits, we can affirm on any basis, including the tardiness of the motion. Therefore, Lowe contends his attorney was ineffective in failing to timely file the motion to the trial court.
We begin by a review of the merits of the motion to suppress. Both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect against unreasonable searches and seizures by government officials. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). "A search and seizure without a valid warrant is per se unreasonable unless it comes within a recognized exception such as consent, search incident to arrest, probable cause and exigent circumstances, or plain view." State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995).
Lowe asserts Officer Francisco's entry into his home was illegal, as the consent was not voluntarily or intelligently given but was coerced. During his testimony, Officer Francisco outlined the facts surrounding his perceived consent to enter Lowe's residence. He stated he arrived and knocked on the door, hoping to talk to Lowe and gain consent to search the premises. Officer Francisco confronted Lowe with his suspicions and asked to speak to him. Lowe stepped outside, closing the exterior door behind him. They spoke for approximately forty-five minutes, during which time Lowe told Officer Francisco about his prior drug use, including heroine and marijuana. He then explained several of the benefits and uses for marijuana and his views on the legalization of marijuana. Officer Francisco approached the subject of a consent search and Lowe attempted to formulate other options, including a hypothetical in which, if given thirty minutes, he would bring out the contraband and turn it over to the officer. Officer Francisco refused this offer, telling Lowe if consent was given to search the premises, he would not have to arrest him at that time. Officer Francisco explained at trial he made this offer for several reasons, including the time needed to process the plants to verify their illegal nature and the possibility of Lowe cooperating in further drug investigations. When Lowe rejected the offer, Officer Francisco explained the only remaining option was to obtain a search warrant to retrieve the contraband and secure the home in the meantime, with Lowe remaining outside the residence to avoid destruction of evidence. He further alerted Lowe that, if they found illegal substances in the home, he would have to arrest Lowe at that time. Officer Francisco handed Lowe a form for consent to search and Lowe led the officer into the house, showing him the growing marijuana plants. Lowe then signed the consent to search form, adding the words "under duress."
Lowe now contends the consent was coerced because it was made under the threat of Officer Francisco being allowed to enter or securing the home and obtaining a search warrant. The supreme court has previously stated:
A search to which an individual consents comports with the requirements of the Fourth Amendment. Consent given to a search must be unequivocal, specific, and freely and intelligently given. The question of voluntariness of consent is one of fact, and the State must prove the alleged consent by a preponderance of the evidence.State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).
Lowe compares this situation to one decided by the Supreme Court in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), in which officers asserted authority to enter the premises under a search warrant later discovered to be fatally flawed. The officers then attempted to rely on the consent gained after the search warrant was presented to the homeowner. Bumper, 391 U.S. at 548-49, 88 S.Ct. at 1792, 20 L.Ed.2d at 802. Lowe misinterprets the holding of Bumperwhen he extends the court's language to include a threat to obtain a search warrant. Id.at 550, 88 S.Ct. at 1792, 20 L.Ed.2d at 802-03.
During Officer Francisco's conversation with Lowe, he obtained the necessary probable cause to seek a search warrant. However, after Lowe volunteered information regarding his views of marijuana and his willingness to bring the contraband out to Officer Francisco, he could not be expected to allow Lowe to return into the home to potentially dispose of the illegal drugs while he sought out a magistrate to issue a search warrant. We find Officer Francisco accurately informed Lowe of his options regarding the confiscation of the illegal narcotics present in his home and, therefore, his consent was not coerced but was voluntarily and intelligently given.
Because we agree with the trial court that the search was valid under the consent exception to the warrant clause, Lowe's attorney did not fail to perform a necessary duty by the late filing of the motion to suppress. Accordingly, we affirm.
AFFIRMED.
STREIT, J. concurs; MILLER, J. concurs in part and dissents in part.
I concur in part, but respectfully dissent in part and dissent from the result.
Waiver of Jury Trial. I concur in the resolution of this claim against Lowe, but do so for a somewhat different reason. Unless Lowe's waiver of his right to jury trial was in fact not voluntarily or not intelligently made, there can be neither a breach of duty by counsel nor prejudice to Lowe. Lowe makes no claim that his waiver was in fact not voluntary and intelligent, and thus makes no claim of ineffective assistance that we could resolve in his favor or preserve for a possible postconviction proceeding.
Motion to Suppress. The majority resolves this part of an ineffective assistance claim by addressing the merits of a suppression motion and concluding that the trial court correctly denied the motion because Lowe voluntarily consented to a search of his home. Whether the suppression issue is decided under the guise of an ineffective assistance claim or is decided directly on its merits, I cannot agree that the State has proved Lowe consented to the search.
The burden is on the State to prove by a preponderance of the evidence the voluntary nature of a consent to search. State v. Garcia, 461 N.W.2d 460, 462 (Iowa 1990). When reviewing the question of voluntariness we review the evidence de novo and make an independent evaluation of the totality of the circumstances to determine whether the consent was voluntary. Id. Mere acquiescence to asserted authority is insufficient to show voluntariness of consent. State v. Ahern, 227 N.W.2d 164, 166 (Iowa 1975) (citing Bumper v. North Carolina, 391 U.S. 543, 548-49, 99 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968)).
During their conversation, Officer Francisco told Lowe that if Lowe consented to a search of his home Francisco would not charge or arrest him that day. Lowe asked Francisco what would happen if Lowe didn't consent to a search. Francisco responded that he would "go get a search warrant," that he would call in other officers to restrain Lowe from entering his home until he got the warrant, that it might take several hours to get the warrant, and that if he were required to get a warrant he would arrest Lowe that day.
It is important to note that Francisco did not tell Lowe that he would seek a warrant, that he would try to get a warrant, that he might not be able to get a warrant, or even that someone else would determine whether a warrant would be issued. He quite simply and plainly told Lowe that he would obtain a search warrant. Francisco in essence told Lowe that Lowe's home would be searched, whether or not Lowe consented, pursuant to a warrant if he did not consent.
Upon our de novo review I would hold that under the totality of the circumstances the State has failed to prove that Lowe's consent was voluntary. His consent was granted only in submission to a claim of lawful authority to search, Francisco's assertion that if Lowe did not consent Francisco could and would get a warrant and search anyway. See, e.g., Dotson v. Somers, 402 A.2d 790, 794 (Conn. 1978) (holding that consent to search was not shown to be voluntary where officers represented that objection to entry would be futile because they could get a warrant and return).