IN THE COURT OF APPEALS OF IOWA

No. 16-0441

Filed November 23, 2016

AURELIO JAVIER ORTIZ,

Petitioner-Appellee,

vs.

STATE OF IOWA,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, 

Judge.

The State appeals a district court order granting postconviction relief to 

applicant. REVERSED AND REMANDED.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant 

Attorney General, for appellant State.

Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for 

appellee.

Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

Aurelio Ortiz pleaded guilty in 2013 to possession of methamphetamine 

with the intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) 

(2011). He did not file a direct appeal of his conviction, but he did seek 

postconviction relief. Ortiz claimed he received ineffective assistance of counsel 

because his trial counsel failed to file a motion to suppress drug evidence

obtained as a result of an allegedly unlawful search and seizure. The district 

court granted Ortiz’s application for postconviction relief. The State now appeals.

I.

On November 25, 2012, Des Moines police officer Todd Wilshusen was 

on duty when he observed a vehicle without a front license plate. Officer 

Wilshusen initiated a traffic stop. While speaking with the driver, Ortiz, 

Wilshusen identified the smell of marijuana coming from inside the vehicle. 

Wilshusen asked Ortiz where the marijuana was, and Ortiz responded the 

occupants of the vehicle had used marijuana in the car earlier that day. Officer 

Wilshusen asked the occupants to exit the vehicle. He and two other officers 

who had arrived at the scene then conducted a search of the vehicle. During the

search, the officers located marijuana, methamphetamine, drug paraphernalia, 

and a handgun.

On December 18, the State filed an eight-count trial information against 

Ortiz. The same day, Ortiz was indicted in federal court for illegal transfer of 

firearms and being a felon in possession of a firearm, both charges arising out of 

the same offense conduct at issue in the state court proceeding. Ortiz retained 
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private counsel to represent him in state court, and he was appointed different 

counsel for the federal charges.

Both the state and federal charges were resolved by plea agreement. 

With respect to the state court proceeding, Ortiz did not file a motion to suppress 

evidence. He ultimately pleaded guilty to one charge, stipulated to a sentencing 

enhancement under Code section 124.411, and was sentenced to forty-five 

years in prison with a mandatory minimum of fifteen years. In the federal 

proceeding, Ortiz did file a motion to suppress evidence, claiming the search of 

his vehicle was unlawful. The motion to suppress evidence was denied. Ortiz 

then pleaded guilty to the charge of felon in possession of a firearm and was 

sentenced to sixty-six months of incarceration. The denial of his motion to 

suppress evidence and his conviction were affirmed on appeal. See United 

States v. Ortiz, No. 14-1093, 2014 WL 4637118, at *2 (8th Cir. Sept. 18, 2014).

As stated above, at issue in the instant postconviction-relief proceeding 

was whether Ortiz’s counsel was ineffective in failing to file a motion to suppress 

evidence. Specifically, whether counsel should have argued the search of Ortiz’s 

vehicle was unlawful under article I, section 8 of the Iowa Constitution based on 

recent case law developments calling into question the viability of the longstanding automobile exception to the warrant requirement. The district court 

granted Ortiz’s application, determining the viability of the automobile exception 

under the Iowa Constitution was in serious doubt and, as a result, Ortiz’s motion 

to suppress would have been granted. Therefore, it held Ortiz’s counsel 

breached an essential duty by failing to bring a motion to suppress and Ortiz was 
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prejudiced because the success of the motion would have rendered a state 

conviction impossible.

II.

We review claims of ineffective assistance of counsel de novo. See State 

v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To prove ineffective assistance of 

counsel, an applicant must show his trial counsel breached an essential duty and 

prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984). 

With respect to breach of duty, there is a strong presumption counsel’s 

performance fell within the range of reasonable professional assistance. See 

Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). With respect to prejudice, 

the applicant must show “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694.

The district court found Ortiz’s counsel breached an essential duty when 

counsel failed to challenge the automobile exception to the warrant requirement. 

As such, it behooves us to examine the exception. “‘A warrantless search is 

presumed unreasonable’ unless an exception applies.” State v. Gaskins, 866 

N.W.2d 1, 7 (Iowa 2015) (citation omitted). One such exception is the 

automobile exception, which initially allowed “warrantless searches of vehicles 

based on probable cause . . . as it would be impracticable to require officers to 

secure a warrant ‘because the vehicle can be quickly moved out of the locality or 

jurisdiction in which the warrant may be sought.’” State v. Allensworth, 748 

N.W.2d 789, 792 (Iowa 2008) (citing Carroll v. United States, 267 U.S. 132, 153 
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(1925)). Later development of the doctrine “noted the exception is also justified 

based on the reduced expectation of privacy, as compared to the home or office, 

that individuals have in their automobiles.” Id. at 794 (citing California v. Carney, 

471 U.S. 386, 391 (1985)). In 1980, our supreme court adopted the automobile 

exception under article I, section 8 of the Iowa Constitution. See State v. Olsen, 

293 N.W.2d 216, 220 (Iowa 1980). Olsen has not been overruled and remains 

the controlling legal authority on whether the automobile exception is recognized 

under the Iowa Constitution.

Even though Ortiz’s motion would have failed on the merits under Olsen, 

the district court concluded Ortiz received ineffective assistance of counsel. In 

reaching this conclusion, the district court found counsel breached an essential 

duty in not challenging Olsen. The district court also found Ortiz suffered 

constitutional prejudice because the motion to suppress would have been 

successful despite controlling legal authority to the contrary. The district court

considered the following factors in reaching this conclusion: 

Taken in total, at the end of a basic investigation trial counsel would 

have uncovered the following information: (1) in Iowa, prevailing 

professional norms indicate a responsibility to raise meritorious 

state constitutional arguments; (2) modern technology is 

challenging the rationale supporting the automobile exception to the 

warrant requirement; and (3) the Iowa Supreme Court has 

demonstrated a willingness to fashion a body of Iowa constitutional 

law independent of federal precedent.

We address the same factors as the district court.

As noted by the district court, prevailing professional norms do indicate a 

responsibility to raise meritorious state constitutional arguments. It has been 

repeatedly stated Iowa appellate courts “jealously guard” the ability to interpret 
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the Iowa Constitution differently from the United States Constitution and provide 

greater protection under the Iowa Constitution. See State v. Baldon, 829 N.W.2d 

785, 820–21 (Iowa 2013) (collecting cases in which our supreme court has done 

so). But see State v. Bohl, No. 15-1546, 2016 WL 4543957, at *2 (Iowa Ct. App. 

Aug. 31, 2016) (“The right question, is not whether a state’s guarantee is the 

same as or broader than its federal counterpart as interpreted by the Supreme 

Court. The right question is what the state’s guarantee means and how it applies 

to the case at hand.”). This is perhaps especially true where the texts differ, as 

the relevant sections do here. Compare Iowa Const. art. I, § 8 (“The right of the 

people to be secure in their persons, houses, papers and effects, against 

unreasonable seizures and searches shall not be violated; and no warrant shall 

issue but on probable cause, supported by oath or affirmation, particularly 

describing the place to be searched, and the persons or things to be seized.”), 

with U.S. Const. amend. IV (“The right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no Warrants shall issue, but upon probable 

cause, supported by Oath or affirmation, and particularly describing the place to 

be searched, and the persons or things to be seized.”). Our supreme court has 

concluded the semicolon in the Iowa Constitution has great legal significance in 

that it places more emphasis on the warrant requirement than the Federal 

Constitution. See State v. Short, 851 N.W.2d 474, 501–02 (Iowa 2014) 

(reviewing textual and structural arguments). In several cases, our supreme 

court has broken with recent United States Supreme Court precedent to 
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distinguish search-and-seizure protections in Iowa. See Short, 851 N.W.2d at 

506; State v. Ochoa, 792 N.W.2d 260, 287–91 (Iowa 2010).

It is additionally true that advances in technology may undermine the 

stated rationale for the automobile exception. See Gaskins, 866 N.W.2d at 17 

(Cady, C.J., concurring specially) (“An automatic exception to the warrant 

requirement, particularly one based on exigency, must account for the new world 

of technology, and must not continue to exist simply because it existed in the 

past.”). However, this does not necessarily mean the automobile exception 

cannot and should not be justified for other reasons. 

Finally, as noted by the district court, the Iowa Supreme Court has 

demonstrated a willingness to fashion its own search-and-seizure doctrine under 

the Iowa Constitution. Indeed, the defense bar has been implored repeatedly to 

assert more state constitutional claims to allow for more development in the area. 

See id. at 34 (Appel, J., concurring specially) (stating “defense counsel should 

have a working knowledge of the larger state constitutional trends around the 

country”); Short, 851 N.W.2d at 489–90 (“In addition to readily searchable 

caselaw, there is now a very large volume of readily accessible secondary 

materials discussing just about every aspect of state constitutional law. A diligent 

lawyer thus has ready access to the materials necessary to develop state 

constitutional law arguments.”); Baldon, 829 N.W.2d at 816 (Appel, J., concurring

specially) (writing “no lawyer worth his or her salt can be a good advocate in 

today’s world without appreciating the possibility—and value—of raising state 

and federal constitutional claims in representing a client”); State v. Effler, 769 

N.W.2d 880, 895 (Iowa 2009) (Appel, J., concurring specially) (“In light of our 
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jealously guarded right and duty to differ in our interpretation of state 

constitutional provisions, counsel should be attentive to the possibility that we 

might not follow Supreme Court precedent in cases involving the interpretation of 

the Iowa Constitution.”). 

Even though we agree with many of the district court’s basic assumptions, 

we disagree with the conclusion that those assumptions entitle Ortiz to any relief. 

First, while it is true our supreme court has emphasized defense counsel has a 

duty to raise meritorious state law claims, there is no duty to challenge longstanding case law. See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). 

Moreover, it is a step too far to find, as a matter of law, that defense counsel 

breached a constitutional duty owed his client and failed to perform competently 

by not filing a motion to suppress evidence contrary to ninety years of federal law 

and thirty-two years of state law.

Second, it is clear counsel made a strategic decision to not challenge the

drug evidence. Specifically, Ortiz’s drug charges would have been referred for 

federal prosecution if Ortiz fought them in state court. This would have increased 

Ortiz’s criminal exposure significantly. Ortiz’s trial counsel testified:

Even if he had grounds to file a legitimate motion to 

suppress, even if I thought – we discussed this. Even if I thought 

he could win on a motion to suppress, my advice to Mr. Ortiz was 

you really wouldn’t want to do that anyway because it was made 

very clear that if Mr. Ortiz fought the State, filed a motion to 

suppress, did discovery, [the prosecutor] was going to refer the 

drug case to the feds also.

And if that case was referred to the feds and if he wasn’t 

successful on a motion to suppress, the time he would do in prison 

would be a heck of a lot higher than what he was facing in state 

court.

Discussing that with Mr. Ortiz, the fact that he didn’t feel as 

though he had a valid motion to suppress but also the fact that 
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even if he did, he should work a deal and keep his drug case in 

state court, that’s why we made the decision we did. It wasn’t 

based on an analysis by itself of whether he had a valid motion to 

suppress.

We are reluctant to second-guess good-faith efforts: “Improvident trial strategy, 

miscalculated tactics, and mistakes in judgment do not necessarily amount to 

ineffective assistance of counsel.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 

1995). And “strategic decisions made after ‘thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable.’” Ledezma v. 

State, 626 N.W.2d 134, 143 (Iowa 2001) (quoting Strickland, 466 U.S. at 690).

On de novo review, we find counsel undertook a thorough investigation of 

the pertinent law and facts and arrived at a reasonable strategic decision—to wit, 

avoiding federal prosecution on drug charges for his client where there was no 

doubt the motion to suppress evidence would fail under federal law and the 

defendant would be exposed to a significantly more severe sentence. See 

Kimmelman v. Morrison, 477 U.S. 365, 384–85 (1986) (stating “the failure to file 

a suppression motion does not constitute per se ineffective assistance of 

counsel” and noting there might be strategic reasons for foregoing the motion); 

United States v. Rosario–Puente, 41 Fed. Appx. 483, 484 (1st Cir. 2002) (stating 

that in light of the reduced sentence the petitioner received, “no doubt due in part 

to his agreement to withdraw the motion to suppress and plead guilty, trial 

counsel’s advice seem[ed] eminently reasonable”); Tobbie v. United States, Nos. 

7:10-CV-90084, 7:06-CR-17, 2013 WL 4008631, at *6 (M.D. Ga. Aug. 4, 2013) 

(holding it was “within the wide range of acceptable professional conduct” to 

forego motion to suppress to obtain sentencing or charging concessions); Morris 
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v. United States, Nos. 2:06-cv-00938, 2:05-cr-00125, 2008 WL 4763223, at *5 

(S.D. W. Va. Oct. 27, 2008) (holding counsel was not ineffective in foregoing 

motion to suppress “to minimize his client’s exposure to additional charges, while 

attempting to secure a reduced sentence for substantial assistance”); Ramos v. 

State, 559 So. 2d 705, 706 (Fla. Dist. Ct. App. 1990) (holding counsel was not 

ineffective in failing to file motion to suppress where case law at the time allowed 

search); People v. Williams, No. 4-13-1092, 2016 WL 482418, at *4 (Ill. App. Ct.

Feb. 4, 2016) (holding counsel was not ineffective where counsel advised the 

defendant to plead guilty to state charges to avoid referral to federal prosecutor).

Because we find no breach of an essential duty, we need not consider the 

prejudice element of Ortiz’s claim. See Dempsey v. State, 860 N.W.2d 860, 868

(Iowa 2015) (“If we conclude a claimant has failed to establish either of these 

elements, we need not address the remaining element.”).

III.

For the foregoing reasons, we reverse the judgment of the district court 

granting Ortiz’s application for postconviction relief and remand for further 

proceedings.

REVERSED AND REMANDED.