Opinion
No. 2-356 / 01-0927.
Filed July 31, 2002.
Appeal from the Iowa District Court for Polk County, JAMES D. BIRKENHOLZ, District Associate Judge.
Earl Sanders appeals from the judgment and sentence entered following his conviction for possession of crack cocaine in violation of Iowa Code section 124.401(5) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Charles Kenville, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Earl Sanders appeals from the judgment and sentence entered following his conviction for possession of crack cocaine in violation of Iowa Code section 124.401(5) (1999). We affirm.
I. Factual Background and Proceedings.
On February 17, 2001, a Des Moines police officer observed Sanders and a woman standing behind an abandoned house in an area frequented by prostitutes and drug addicts. As the officer approached, he ordered Sanders and the woman to stop. He then ordered Sanders to remove his hands from his pockets and place them on top of his head. When he did so, the officer observed a glass crack pipe in his hand. The officer placed Sanders in handcuffs and found a small plastic baggie containing crack cocaine on his person.
On February 27, 2001, the State charged Sanders with possession of crack cocaine. On April 19, 2001, Sanders filed a motion to suppress alleging the officer did not have a reasonable basis for the stop. The district court overruled the motion. On May 9, 2001, Sanders pleaded guilty. On appeal, he contends his trial counsel was ineffective (1) in failing to timely file a motion to suppress, (2) for allowing him to plead guilty, instead of pursuing a stipulated bench trial to preserve the suppression issue on appeal, and (3) in failing to properly advise Sanders on the "waiver rule" in regards to guilty plea proceedings.
Although the motion to suppress was untimely filed, it was nonetheless considered by the court. Accordingly, we decline to address this argument.
II. Merits.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
In order to address whether his trial counsel was ineffective, we must first consider the validity of the officer's stop. In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968), the Supreme Court established a police officer's authority to stop an individual for questioning if the officer has reasonable suspicion to believe "criminal activity is afoot." To determine whether an officer had reasonable suspicion to warrant a Terry stop, "the State bears the burden of showing that the officer had specific and articulable cause to support a reasonable belief that criminal activity may have occurred." State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (citations omitted).
Reasonable suspicion is based on an objective standard. We consider the "facts available to the officer at the time of the stop" to determine if they "would lead a reasonable person to believe that the action taken by the officer was appropriate." Id. (citations omitted). An "unparticularized suspicion or hunch" is not enough. State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995). "However, an officer may make an investigatory stop with considerably less than proof of wrongdoing by a preponderance of the evidence." Kinkead, 570 N.W.2d at 100 (citations omitted).
Based upon our de novo review of the record, we find reasonable suspicion to support the stop of Sanders and his companion. At the hearing, the officer testified the two were standing behind an abandoned house in a high-crime area in Des Moines notorious for drug dealing, prostitution, loitering, and vandalism. While we agree with Sanders's contention an individual's presence in an area of expected criminal activity is not enough, standing alone, to support the basis for a Terry stop, see Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), we find the additional factor of defendant's trespassing sufficient to support reasonable suspicion.
Accordingly, we conclude Sanders's trial counsel did not fail in an essential duty by failing to preserve the suppression issue for appeal. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (holding defense counsel has no duty to make a meritless motion). In light of this ruling, we conclude Sanders cannot establish he was prejudiced by counsel's alleged failure to inform him of the "waiver rule."
The decision of the district court is affirmed in its entirety.
AFFIRMED.