State of Iowa v. Cliff Allen Lowe ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0899
Filed December 18, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CLIFF ALLEN LOWE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Appanoose County, Lucy J.
Gamon, Judge.
Cliff Lowe appeals his conviction of third-offense possession of a
controlled substance, as a habitual offender. AFFIRMED.
Mark C. Smith, State Appellate Defender (until withdrawal), and Nan
Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.
Cliff Lowe appeals his conviction of third-offense possession of a
controlled substance, as a habitual offender. He claims his counsel rendered
ineffective assistance in failing to move for suppression of evidence obtained
following an allegedly illegal pretextual stop and subsequent inventory search of
a vehicle in which he was a passenger. He argues pretextual stops are illegal
under the Iowa Constitution and the inventory search violated both the United
States and Iowa Constitutions. He asks that we overrule supreme court
precedent and rule he has standing to challenge the seizure and search of a
vehicle in which he was a mere passenger.
We review both constitutional issues and claims of ineffective assistance
of counsel de novo. State v. Lilly, 930 N.W.2d 293, 298 (Iowa 2019). Lowe
“must establish by a preponderance of the evidence that ‘(1) his trial counsel
failed to perform an essential duty, and (2) this failure resulted in prejudice.’”
State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting State v. Harris, 891
N.W.2d 182, 185 (Iowa 2017)); accord Strickland v. Washington, 466 U.S. 668,
687 (1984). We “may consider either the prejudice prong or breach of duty first,
and failure to find either one will preclude relief.” State v. McNeal, 897 N.W.2d
697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa
2015)). A failure to register meritless arguments or motions does not amount to
ineffective assistance of counsel. See Lilly, 930 N.W.2d at 390; State v.
Tompkins, 859 N.W.2d 631, 637 (Iowa 2015).
Our supreme court recently declined to overrule longstanding precedent
standing for the proposition that pretextual stops are permissible under the Iowa
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Constitution. See State v. Brown, 930 N.W.2d 840, 846–54 (Iowa 2019); see
also State v. Haas, 930 N.W.22d 699, 702 (Iowa 2019) (describing the Brown
decision to be “consistent with precedent in Iowa”). This case also falls squarely
within longstanding federal and state precedent holding a mere passenger with
no ownership or possessory interest in a vehicle has no legitimate expectation of
privacy therein and therefore does not have standing to challenge the
constitutionality of a search. See Rakas v. Illinois, 439 U.S. 128, 148–50 (1978);
State v. Halliburton, 539 N.W.2d 339, 342–43 (Iowa 1995); see also Byrd v.
United States, 138 S. Ct. 1518, 1528 (2018) (reaffirming the Rakas holding “that
a passenger lawfully in an automobile may not . . . challenge a search unless he
happens to own or have a possessory interest in it.” (citation omitted)).
Had the issues been raised before the district court, the court would have
been required to follow both United States Supreme Court precedent interpreting
the federal constitution and our supreme court’s precedent interpreting the state
constitution, both of which foreclose Lowe’s claims under the facts of this case.
We find counsel was under no duty to pursue the meritless arguments and Lowe
was not prejudiced. We affirm Lowe’s conviction.
AFFIRMED.