STATE OF IOWA, Plaintiff-Appellee, vs. JEFFREY MARTIN HEMSATH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-122 / 08-1339
Filed May 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY MARTIN HEMSATH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.
Harris, District Associate Judge.
Hemsath appeals his judgment and sentence for possession of
methamphetamine. AFFIRMED.
Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Susan Swan and Jeremy
Westendorf, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VAITHESWARAN, J.
We must decide whether trial counsel was ineffective in failing to timely file
a motion to suppress evidence.
I.
Background Facts and Proceedings
A Waterloo police officer stopped and searched Jeffrey Martin Hemsath.
He found a baggie of methamphetamine in one of Hemsath‟s pockets.
The State charged Hemsath with possession of a controlled substance
(methamphetamine). See Iowa Code § 124.401(5) (2005). Hemsath moved to
suppress the items seized from him; the State countered that the motion was
untimely.
The district court elected to proceed with an evidentiary hearing.
Following the hearing, the court agreed with the State that the motion to
suppress was untimely. The court later denied Hemsath‟s motion to reconsider
the ruling.
Hemsath‟s attorney withdrew from representing him, citing his failure to
timely file the suppression motion. The case proceeded to a bench trial on the
stipulated minutes of testimony. Hemsath‟s new attorney again urged the court
to reconsider its previous ruling on the motion to suppress. The district court
denied the request, found Hemsath guilty of possession of methamphetamine,
and sentenced him accordingly.
II.
Analysis
On appeal, Hemsath argues his trial attorney was ineffective in failing to
timely file a motion to suppress the baggie of methamphetamine. Because the
district court held an evidentiary hearing on the motion, we find the record
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adequate to address this issue. State v. Bowers, 661 N.W.2d 536, 540 (Iowa
2003). Our review is de novo. Id.
To establish ineffective assistance, a defendant must show (1) counsel
failed to perform an essential duty, and (2) prejudice resulted.
Strickland v.
Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984). Prejudice in this context requires a showing of a reasonable probability
that but for counsel‟s claimed errors, the result of the proceeding would have
been different. Id. at 695, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The State argues that there is no reasonable probability the motion to
suppress would have succeeded, as the Waterloo police officer either had
probable cause or reasonable suspicion to conduct the search of Hemsath. We
find it unnecessary to address the probable cause argument because we are
persuaded by the State‟s alternate reasonable suspicion argument.
An officer may conduct a warrantless pat-down search when the officer “is
justified in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to
others.” Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889,
908-09 (1968).
“[T]he police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at
906. The facts must “be judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the search „warrant a man
of reasonable caution in the belief‟ that the action taken was appropriate?” Id.
392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906 (citation omitted).
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The record reveals that the Waterloo police officer encountered Hemsath
riding his bicycle after dark. Hemsath‟s bicycle was not equipped with lights or
reflectors.
The officer stopped Hemsath because of this city code violation.
When the officer asked where he was coming from, Hemsath responded by
identifying a different street than the area from which the officer had seen him
coming. The officer noted that Hemsath was dry despite rain that would have
soaked him had he been riding from the location he identified.
The officer
suspected that Hemsath did not disclose his actual location because he knew it
to be a known drug area.
After the stop, Hemsath “kept stepping back” from the officer and “was
sweating a lot” and “acting nervous.” The officer asked Hemsath if he had any
weapons. Hemsath said no. The officer said he intended to pat Hemsath down
for weapons. He located a pocket knife in Hemsath‟s right front pants pocket, felt
a lighter in his shirt pocket, proceeded to pull the lighter out believing it might
contain knives, and discovered a baggie holding what appeared to be
methamphetamine.
Hemsath‟s nervousness, his misstatement of his prior location, his denial
that he possessed weapons, and the subsequent discovery of a pocket knife
were “specific and articulable facts” that justified the warrantless pat-down
search. Based on these facts, we conclude the Terry standard for a search was
satisfied and there is no reasonable probability that a motion to suppress would
have been granted. As Hemsath could not establish Strickland prejudice, his
claim that counsel was ineffective in failing to file a timely motion to suppress
necessarily fails.
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We affirm Hemsath‟s judgment and sentence for possession of
methamphetamine.
AFFIRMED.
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