State of Iowa v. David v. Kuhlemeier ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1715
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID V. KUHLEMEIER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Emmet County, Patrick M. Carr,
Judge.
David Kuhlemeier appeals from his conviction for burglary in the third
degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, and Douglas R. Hansen, County Attorney for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
VOGEL, P.J.
David Kuhlemeier appeals from his conviction for burglary in the third
degree. He asserts the district court improperly denied his motion to suppress
arguing, first, that the arresting officer did not have reasonable suspicion to stop
his vehicle, second, that there was no probable cause to arrest him, and third,
that no exception to the Fourth Amendment authorized the search of his vehicle;
consequently, the evidence discovered in his vehicle should have been
suppressed. Alternatively, Kuhlemeier frames this as an ineffective-assistance-
of-counsel claim.
We agree with the district court the motion was untimely filed, and
therefore, his arguments asserted in the motion to suppress were waived.
Nonetheless, no violation of Kuhlemeier’s Fourth Amendment rights occurred,
and the evidence was properly admitted. Consequently, he cannot succeed on
his ineffective-assistance claim, and we affirm his conviction.
I. Factual and Procedural Background
On September 17, 2013, at approximately 9:30 p.m., a bar and grill
owner—Rick Dale—observed a blue vehicle parked in an alley behind his
business in Armstrong, Iowa. A city shed containing donated pop cans was
across the alley from the bar and grill, and the shed had recently had cans stolen
from it.1 Dale called the police, and Chief of Police Craig Merrill responded.
Chief Merrill inspected the unoccupied car, noted the front passenger seat had
been removed, and a white storage tub was in its place. He did not observe any
1
This shed was city property and a place for residents to donate cans to help pay for
Fourth-of-July fireworks.
3
incriminating evidence. After running the vehicle’s license plate, he left. The
vehicle was a blue Chevy Camaro.
Fifteen to twenty minutes later, Dale noticed the vehicle had moved a
quarter-block down the alleyway. He also heard an individual loading a black
bag that contained what he stated sounded like pop cans. He again called the
police. Chief Merrill came back to the scene, and by that time, the vehicle was
gone, but the door to the city shed was partially open. After driving around the
area, Chief Merrill saw the vehicle heading east on the highway and ran the
license plates, which confirmed it was the same Camaro seen earlier outside the
bar and grill.
Chief Merrill caught up to the vehicle and initiated a traffic stop.
Kuhlemeier was the driver and, after Chief Merrill asked where he was coming
from, stated he was traveling from a hog house in Minnesota. He denied being
outside the bar and grill, but once Chief Merrill informed Kuhlemeier that he had
seen his vehicle at that location, Kuhlemeier admitted he had stopped in town
briefly to smoke cigarettes.
Visible to the officer was a box of spools of copper wire in the front seat
area.2 While Chief Merrill was questioning him, Kuhlemeier was attempting to
pull sweatshirts or towels over the box so as to cover up the wire; when asked
why he was doing this, Kuhlemeier stated he was trying to prevent the wire from
poking him. In the white storage container in the front seat area, there was a
black plastic bag, which contained pop cans. During the investigative stop,
2
Kuhlemeier claimed the wire and the cans came from the hog house in Minnesota
where he had been working. He was unable to provide any verification in support of this
claim.
4
Kuhlemeier was sweating profusely and appeared nervous, so much so that
Chief Merrill suspected Kuhlemeier was impaired. He requested Kuhlemeier
complete field sobriety tests; Kuhlemeier consented and passed.
Chief Merrill arrested Kuhlemeier for the theft of the pop cans. Two
deputies arrived at the scene, after which the vehicle was towed to a tow yard.
Chief Merrill returned to the city shed to determine if items were missing but
could not verify that one bag of cans was missing from the shed. The search of
the Camaro revealed a bag of cans, seven spools of copper wire, and a roll cart
with wet tires. Upon further investigation, it was determined Kuhlemeier had
stolen this wire from an Alliant Energy building located close to the bar.
The State charged Kuhlemeier by trial information on October 11, 2013,
with theft in the second degree, burglary in the third degree, and possession of
burglar tools. He was charged for the theft of the copper wire but not for theft of
the pop cans. A written arraignment with a not-guilty plea was filed on October
25. An order entered on December 10, extended deadlines for discovery and
pretrial motions until January 15, 2014. Kuhlemeier’s first attorney withdrew, and
second trial counsel entered an appearance on May 23, 2014.
On July 18, 2014, Kuhlemeier filed a motion to suppress; the State
countered the motion was untimely. Following a hearing on August 4, the district
court denied the motion, finding that it was untimely, but also found that even if it
were to consider the merits, exceptions to the Fourth Amendment’s warrant
requirement applied. A trial on the minutes was held with regard to the burglary
count, and the State dismissed the other two charges. On October 6, 2014, the
district court found Kuhlemeier guilty of burglary in the third degree, in violation of
5
Iowa Code sections 713.1 and 713.6A(1) (2013), and he was sentenced to a
term of incarceration not to exceed five years. Kuhlemeier appeals.
II. Standard of Review
Our review of constitutional issues is de novo. State v. Freeman, 705
N.W.2d 293, 297 (Iowa 2005).
III. Timeliness of the Motion to Suppress
The State contends Kuhlemeier’s motion was untimely filed; consequently,
his arguments are waived and error was not preserved. We agree. Iowa Rule of
Criminal Procedure 2.11(4) provides that a motion—in this case, a motion to
suppress—should be filed no later than forty days after arraignment. Kuhlemeier
was arraigned on October 25, 2013; however, his motion to suppress was not
filed until July 18, 2014. Moreover, good cause was not established to excuse
this significant delay. See State v. Ortiz, 766 N.W.2d 244, 250 (Iowa 2009)
(noting good cause for delay may prevent the argument from being waived).
Though trial counsel did not enter an appearance until May 23, 2014, the motion
to suppress was still not filed until two months following his appearance.
Consequently, we agree with the district court the motion to suppress was
untimely filed, and Kuhlemeier’s claims asserted in the motion to suppress were
waived. See id. (noting if the motion to suppress is not timely filed, and good
cause is not established, arguments contained in a motion to suppress are
waived).
IV. Ineffective Assistance of Counsel
Alternatively, Kuhlemeier asserts trial counsel was ineffective for failing to
timely file the motion to suppress and, thus, properly preserve for appellate
6
review his Fourth Amendment arguments. Specifically, he argues his Fourth
Amendment rights were violated because: (1) there was no reasonable suspicion
to initiate the traffic stop; (2) chief Merrill did not have probable cause to arrest
him; and (3) his vehicle was unlawfully searched because the police did not have
a written policy and procedure when conducting inventory searches, nor did the
automobile exception apply.
A defendant may raise an ineffective-assistance claim on direct appeal if
the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006). We may either decide the record is adequate and rule on the
merits, or we may choose to preserve the claim for postconviction proceedings.
Id. To succeed on this claim, the defendant must show, first, that counsel
breached an essential duty and, second, that he was prejudiced by counsel’s
failure. Id.
A. Initial Stop
When no warrant exists for a search or seizure, it is per se unreasonable
under the Fourth Amendment unless an exception applies. Freeman, 705
N.W.2d at 297. If an officer has reasonable suspicion that a crime was occurring
or had just occurred, he may initiate an investigatory stop and remain in
compliance with the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 21–22
(1968). Additionally:
In determining whether an investigatory stop of a vehicle complies
with the protections provided by the Fourth Amendment, we must
consider whether the facts articulated by the officer support the
intrusion on the individual’s privacy and whether the scope of the
intrusion is reasonably related to the circumstances which justified
the intrusion.
7
State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (internal citation omitted).
Given this standard, Chief Merrill had reasonable suspicion to conduct an
investigatory stop. This conclusion is supported by the fact he had Dale’s
statement that Dale heard someone place a black plastic bag—which sounded
like it had pop cans in it—in the blue Camaro and drive away.3 When Chief
Merrill responded, the door to the city shed had been left part-way open;
furthermore, he knew that it had recently been burglarized. Knowing the vehicle
was in the area, Chief Merrill located it driving along the highway and, after
running the license plate, confirmed it was the same vehicle earlier seen by him
and Dale. When these facts are considered by a reasonable and prudent
person, the officer had specific, articulable facts on which he could rely when
concluding a crime—the theft of the pop cans—had occurred. See id.
Therefore, a proper investigatory stop was conducted, and Kuhlemeier’s Fourth
Amendment rights were not violated in this regard. See id. at 100–01 (holding
the officer had reasonable suspicion to initiate an investigatory stop).
B. Arrest
Though reasonable suspicion existed for the stop, probable case was
required to arrest Kuhlemeier. See Freeman, 705 N.W.2d at 298. “Probable
cause is present if the totality of the circumstances as viewed by a reasonable
and prudent person would lead that person to believe that a crime has been or is
being committed and that the arrestee committed or is committing it.” Id. (internal
citation omitted).
3
Dale testified: “I heard cans in a black bag—I seen the black bag and I heard cans in
it.”
8
As noted before, there was sufficient evidence that a theft of the pop cans
had occurred. Moreover, Chief Merrill obtained further information during the
stop, including his observation that the black plastic bag did in fact contain pop
cans. Kuhlemeier also acted suspiciously during the stop—he was sweating
profusely, appeared nervous, lied about not having been in town, and could not
give a credible explanation as to where the pop cans, as well as the copper wire,
were acquired. Notably, these items were not visible when Chief Merrill and Dale
first approached the vehicle just a short time before the stop, yet Kuhlemeier said
he had brought all of the items with him from Minnesota. Given the totality of the
circumstances, this information supports Chief Merrill’s conclusion the theft of the
cans had occurred and, particularly given Kuhlemeier had the bag of cans in his
possession, that Kuhlemeier was the person who committed the crime.
Consequently, probable cause existed for Kuhlemeier’s arrest, and his Fourth
Amendment rights were not violated when he was detained. See id.
C. Search of the Vehicle
We also do not agree with Kuhlemeier’s contention his vehicle was
illegally searched, given the automobile exception applied.4 The automobile
exception to the warrant requirement is satisfied when there is probable cause to
believe evidence of a crime can be found within the vehicle, combined with the
existence of exigent circumstances. State v. Maddox, 670 N.W.2d 168, 171
4
The State contends the plain-view exception also applies with regard to the seizure of
the copper wire; however, the incriminating nature of the object must be immediately
apparent to the officer for this exception to nullify the warrant requirement. See State v.
Chrisman, 514 N.W.2d 57, 60 (Iowa 1996). Here, the incriminating nature of the copper
wire was not apparent to Chief Merrill, as evidenced by the fact Kuhlemeier was arrested
for the theft of the cans, not the wire. Rather, it was only upon later investigation police
established the wire had been stolen. Consequently, the plain-view exception does not
apply. See id.
9
(Iowa 2003). Moreover, the exigency element within this exception can be
satisfied even when the vehicle is in the custody of the State. State v.
Allensworth, 748 N.W.2d 789, 795–96 (Iowa 2008) (holding the automobile
exception applied, even though probable cause did not exist until the vehicle was
being searched while it was impounded).
As previously stated, the stop of Kuhlemeier’s vehicle was proper;
consequently, the initial seizure of the vehicle was reasonable and not a violation
of the Fourth Amendment. See Kinkead, 570 N.W.2d at 100. Furthermore,
probable cause existed—in the form of the bag of cans—that evidence of a crime
was in the car. See Maddox, 670 N.W.2d at 173 (holding probable cause existed
that evidence of criminal activity was in the defendant’s truck, such that the
automobile exception applied to the police’s search, due to the defendant’s
evasive statements to law enforcement). This probable cause, combined with
the exigency of the circumstances with regard to the officers’ need to search the
vehicle, rendered the automobile exception applicable. See Allensworth, 748
N.W.2d at 793 (noting “[t]he exigencies faced by law enforcement officers dealing
with motor vehicles do not evaporate when the vehicle is removed from the
scene of the stop to a police station or other place of impoundment”).
Consequently, the warrantless search of the vehicle was not illegal, and
Kuhlemeier’s claim fails. See id. at 794–95.
For the foregoing reasons, Kuhlemeier’s Fourth Amendment rights were
not violated; therefore, counsel was not ineffective for failing to timely file the
motion to suppress. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)
10
(holding counsel is not ineffective if no essential duty is breached). Accordingly,
we affirm Kuhlemeier’s conviction and sentence for burglary in the third degree.
AFFIRMED.