State v. Bergmann

• Decision Date: 06 September 2001
• Docket Number: No. 00-0778.,00-0778.
• Citation: 633 N.W.2d 328
• Parties: STATE of Iowa, Appellee, v. Carl Ernest BERGMANN, III, Appellant.
• Court: Iowa Supreme Court

633 N.W.2d 328

STATE of Iowa, Appellee, v. Carl Ernest BERGMANN, III, Appellant.

No. 00-0778.

Supreme Court of Iowa.

September 6, 2001.

Rehearing Denied October 3, 2001.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Danielle Davis and Mark Taylor, Assistant County Attorneys, for appellee.

SNELL, Senior Judge.¹

Several searches occurred in this case, justified by different burdens, and conducted in different ways. We have occasion to decide if any were unconstitutional, and, if so, what effect that search had on subsequent searches. Because we agree with the district court that no constitutional rights were violated, we affirm.

I. Factual Background and Procedure

The defendant, Carl E. Bergmann, was parked in an alleyway when Officer Ken Dill noticed his car. Officer Dill was immediately suspicious as this was an area notorious for drug activity and Chester Polk, a well-known narcotics dealer, was standing next to the passenger side of the car. Polk noticed Dill and immediately left. Bergmann then began to drive away quickly. Dill observed that Bergmann's license plate light was not lit, and decided to pull him over.

Once alongside the vehicle, Officer Dill recognized Bergmann from an arrest he had made in 1996 involving possession of a handgun and a large quantity of marijuana. Bergmann also had two female passengers. Dill testified that at this point he felt concerned for his safety given his past involvement with Bergmann. Dill then asked Bergmann if he had stopped anywhere recently. Bergmann answered that he had not, a fact which Dill knew to be untrue as he had just seen him stopped in the alleyway.

Officer Dill asked Bergmann to step out of the car to show him the unlit license plate. While out, Dill noticed that Bergmann was acting anxious and impatient. Dill asked to search the car, and Bergmann refused to give his consent. At this point, Dill decided to call in the canine unit. Before it arrived, Dill patted down Bergmann for weapons. He found none. He also looked under the driver seat for a weapon, the place he had found a weapon in 1996, but again found nothing. Dill testified that the canine and his handler, Officer David McFarland, arrived "within minutes." Dill speculated that at the most it took Officer McFarland between five and ten minutes to arrive. All passengers were evacuated and the dog walked around the vehicle. The dog was trained to sit when the smell of narcotics was present. The dog indicated he smelled a controlled substance inside the vehicle.

Given this reaction, the officers felt they had probable cause to conduct a search of the entire vehicle. From the search, they found a pouch under the front passenger seat containing a small quantity of marijuana. A larger quantity of marijuana and marijuana paraphernalia were later found in the trunk. Bergmann was arrested and charged with possession of a controlled substance in violation of Iowa Code section 124.401(5) (1999).

Bergmann filed a suppression motion. He argued that the scope of the search was not justified by the facts. He did not take issue with the pat-down search of his person or under his seat, but rather with calling in the canine unit and the search of his vehicle that followed. At the suppression hearing, Bergmann's attorney admitted: "But based on his past history with Mr. Bergmann, Officer Dill felt that a weapons check was necessary. Now, I can even acknowledge that permissible for the officer's safety and those types of reasons...." Where Bergmann felt the police stop crossed the line of legality was when the dog was called to the scene. Bergmann argued that because Dill stopped him for a traffic violation, he is bound by this reason for the scope of the encounter. When the encounter escalated to a drug investigation, this exceeded the scope of the traffic stop.

The motion was denied. The court determined that given all of the reasons present for Dill to be suspicious, it was reasonable for the canine unit to be alerted. It stated on the record:

The fact that the taillight or license plate was not functioning did give the officer the right to stop the car. At that point the officer learned that the defendant had been previously involved or arrested or convicted, as I understand it, for possession of marijuana. He also knew that at a prior time he was talking to a known drug dealer. And that would give him ... reasonable grounds to suspect that drug activity may have been involved. I think the summoning of the canine unit under those circumstances is not unreasonable ... and the search in this case is not subject to suppression.

As such, the evidence seized was held admissible against Bergmann. He was later convicted of violating section 124.401(5) and sentenced to 180 days in jail, with 150 of those days suspended.

On appeal, Bergmann argues his prolonged detention to wait for the drug dog cannot be constitutionally justified. He maintains that the search of his vehicle was a search incident to a citation and not based upon probable cause. He also makes the curious argument that the initial pat down prior to the arrival of the canine unit "did not produce any inculpatory evidence and, therefore, all of the evidence gathered after those searches should be suppressed as fruits of the poisonous tree." This is the first time Bergmann has argued that the initial pat down was unconstitutional. In fact, this is a step away from the admission made at the suppression hearing by Bergmann's attorney that it was within Officer Dill's right to conduct a pat down for safety purposes.

II. Scope and Standard of Review

When constitutional rights are implicated, we review a court's ruling on a suppression motion de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000). "In doing so, we independently evaluate the totality of the circumstances shown in the record." State v. Seager, 571 N.W.2d 204, 207 (Iowa 1997); accord State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). Because this case involves constitutional issues: "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." State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

III. Preservation of Error

Although the State concedes that error has been preserved on every issue raised on appeal by filing the timely suppression motion, we disagree. Particularly, we do not believe Bergmann preserved the validity of the pat down for error. At no time before the district court did Bergmann argue his pat down was unconstitutional. His motion did not specifically raise this and the hearing transcript does not show this issue being raised. The court's ruling on the motion was based on the dog sniff "search" and the search that occurred because of the dog's alert. No mention was made of the initial pat down. The discussion at the hearing suggests that Bergmann waived this constitutional challenge when his attorney acknowledged that given everything known to Dill, it was proper to do a pat down.

In a similar case we noted and held:

[C]ounsel did not simply remain silent and rely on the questionable objection already made. He affirmatively stated—twice —that he had no objection to the very evidence whose admission he now says amounted to reversible error....

....

On the record before us we hold that defendant waived his objection to admission of the [evidence]....

State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981); accord State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997). Because Bergmann "cannot have it both ways," this argument was not preserved for error. Schmidt, 312 N.W.2d at 518; accord Terry, 569 N.W.2d at 369.

However, on appeal Bergmann also makes an ineffective assistance of counsel argument. He asks us not to penalize him if his attorney failed to preserve error on any issue. As such, preservation should not be a problem if it was the result of a counsel deficiency. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). "Ineffective assistance claims operate as an exception to our error preservation requirements." Id. Although the constitutionality of the pat down was not preserved for error, Bergmann may still allege it through ineffective assistance of counsel.

IV. Issues on Appeal

There are three challenged searches that occurred in this case: (1) the pat down of Bergmann and the search under the driver's seat before the canine unit arrived; (2) the extended detention and dog sniff; and (3) the search of the car after the dog indicated the smell of drugs was present. We conclude that all three searches were constitutionally conducted.

A. The Pat Down

Police are allowed to pat down a suspect if they have reasonable suspicion that a crime is being or is about to be committed. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). They may also do a pat down if there is a reasonable suspicion that the person is armed and the officer's safety is in danger. Id. at 27, 88 S.Ct. at 1883,20 L.Ed.2d at 909. Two cases are instructive here given our facts. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v. Cline, 617 N.W.2d 277 (Iowa 2000). Both cases hold that mere presence in a known narcotics-dealing area does not give police reasonable suspicion of wrongdoing to conduct a pat down. However, when coupled with other factors like flight upon seeing police, nervousness, evasiveness or lying, past experience with the suspect, etc., reasonable suspicion may be justified. See Wardlow, 528 U.S. at 124-25,120 S.Ct. at 676,145 L.Ed.2d at 576; Cline, 617 N.W.2d at 282-83.

Here, Bergmann was spotted in a known drug area alongside a nefarious drug dealer. When the drug dealer saw police, he immediately retreated from...