text:
    STATE of Iowa, Appellee, v. Linda Lou LEGG, Appellant.
    No. 00-0225.
    Supreme Court of Iowa.
    Sept. 6, 2001.
    Rehearing Denied Oct. 3, 2001.

      James A. Sinclair of Sinclair & Associates, P.C., West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Judson L. Frisk, County Attorney, and Susan Christensen, Assistant County Attorney, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   TERNUS, Justice.

The appellant, Linda Legg, appeals her conviction for operating while intoxicated. See Iowa Code § 321J.2 (1999). Her only claim of error is the district court’s denial of her motion to suppress. Legg asserts her rights under the Fourth Amendment were violated by a police officer’s warrantless entry into her garage, which resulted in her subsequent arrest for operating while intoxicated. See U.S. Const.Amend. IV. We affirm.

I. Background Facts and Proceedings.

Because this case was tried on the stipulated minutes of testimony, the facts are largely undisputed. At approximately 12:55 a.m. on February 27, 1999, Logan police officer Jeff Killpack observed the defendant’s vehicle run a stop sign in the town of Logan without even slowing down. Killpack pursued the defendant and caught up with her a block later. At that time, he activated his top lights and “wigwags” located inside the grill. The defendant did not stop, however; rather, she accelerated her car and ran another stop sign.

Killpack continued to follow the defendant’s vehicle and, while doing so, noticed that the defendant’s car was weaving slowly from curb to curb. After running the second stop sign, the defendant drove another half block before turning into an alley and stopping near a garage. The officer pulled his vehicle in behind the defendant’s car, his tops lights and “wigwags” still on. As the officer got out of his car, Legg exited her vehicle and headed toward a door leading into the garage. Following closely behind her, Killpack yelled for the defendant to stop. Legg did not stop and instead opened the door to the garage and went inside. Killpack followed Legg into the garage, taking three steps inside. Throughout this entire incident, Killpack never lost sight of the defendant.

Once inside the garage, Killpack asked Legg to come outside so that he could speak with her. She repeatedly stated, “I’m home.” Killpack noticed that her breath smelled of alcohol. He then gently pulled on her coat to “coax” her out of the garage. At that point he could see that her eyes were bloodshot and watery. In addition, Legg had difficulty keeping her balance and her speech was extremely slurred. When Killpack asked to see her license, Legg became angry and attempted to push the officer away from the door so she could go back inside. Killpack then told the defendant he was concerned about her intoxication and asked her to go with him to the law enforcement center. When she refused to cooperate, he placed her in handcuffs and informed her she was under arrest for operating while intoxicated (OWI). Once they arrived at the law enforcement center, Legg refused to perform field sobriety tests and refused to take a preliminary breath test.

Legg was charged with OWI, first offense, and interference with official acts, both serious misdemeanors. See Iowa Code §§ 321J.2, 719.1. In addition, she was ticketed for failure to stop. See id. § 321.256. Legg’s pre-trial motion to suppress was denied. The misdemeanor charges then proceeded to a bench trial on the stipulated minutes of testimony. The court found the defendant guilty of both crimes. Legg was sentenced to seven days in jail and fined $1000 for the OWI offense. On the conviction for interference with official acts, the court sentenced Legg to one day in jail to be served concurrently with the prior sentence. The court then suspended five days of the OWI sentence and placed the defendant on conditional unsupervised probation for one year.

Legg appeals. She raises only one issue: whether the trial court erred in denying her motion to suppress. Legg argues Killpack’s warrantless entry into her garage violated the Fourth Amendment, requiring suppression of any evidence obtained thereafter. She claims Killpack acted unreasonably because he did not have probable cause to arrest her for OWI and there were no exigent circumstances to justify his entry into her garage without a warrant. The State contends that Legg had no legitimate expectation of privacy in her - garage and that, even if she did, the officer did not unreasonably invade that interest. We review this constitutional claim de novo. See State v. Halliburton, 539 N.W.2d 339, 341 (Iowa 1995).

II. General Legal Principles.

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. In interpreting this provision of the Constitution, the United States Supreme Court has stated that “the Fourth Amendment’s proper function is to constrain, not against all intrusions ... but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 918 (1966) (emphasis added). Similarly, this court has noted that

[t]he essential purpose of the proscriptions of the Fourth Amendment “is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents[,] in order ‘to safeguard the privacy and security of individuals against arbitrary invasion....’”

State v. Loyd, 530 N.W.2d 708, 711 (Iowa 1995) (emphasis added) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979)); accord State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998) (stating “the Fourth Amendment protects only against unreasonable government intrusion upon a person’s legitimate expectation of privacy” (emphasis added)).

To protect citizens against unreasonable searches and seizures, the Fourth Amendment requires that the government must obtain a warrant before it may search or enter an area in which a person has a reasonable expectation of privacy. See Breuer, 577 N.W.2d at 45. Searches conducted without a warrant are per se unreasonable, unless the government action falls within one of a few, well-recognized exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967). These exceptions include “searches based on consent, plain view, [or] exigent circumstances and searches incident to arrest.” Breuer, 577 N.W.2d at 45.

In determining whether there has been a Fourth Amendment violation, this court has adopted a two-step approach. See id. First, we decide whether the person challenging the search has shown a legitimate expectation of privacy in the area searched. See id.; accord Minnesota v. Carter, 525 U.S. 83, 91, 119 S.Ct. 469, 474, 142 L.Ed.2d 373, 379 (1998). If so, we then “consider whether the State has unreasonably invaded that protected interest.” Breuer, 577 N.W.2d at 45. Our evaluation of the reasonableness of a search is made using an objective standard. See State v. Cline, 617 N.W.2d 277, 280-81 (Iowa 2000). “Consequently, the legality of a search and seizure ... ‘does not depend on the actual motivation of the individual officers involved.’ ” Id. at 281 (quoting State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996)).

III. Legitimate Expectation of Privacy.

The first issue we must decide is whether Legg had a legitimate expectation of privacy in her garage. The United States Supreme Court has observed that

the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582 (citations omitted). Whether a person has a legitimate expectation of privacy concerning a specific area is made on a case-by-case basis, considering the unique facts of each situation. See Breuer, 577 N.W.2d at 46.

Notwithstanding a generally case-by-case approach, it is well established that persons have a legitimate expectation of privacy in their homes. See Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919 (“Search warrants are ordinarily required for searches of dwellings .... ”). Indeed, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972).

Fourth Amendment protection has also been extended to the curtilage of the home. See Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984). “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326, 334 (1987). In Dunn, the Court established four, nonexclusive factors to consider in determining whether an area falls within the curtilage of a home: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301, 107 S.Ct. at 1139, 94 L.Ed.2d at 334-35. “[T]he primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” Id. at 301 n. 4, 107 S.Ct. at 1140 n. 4, 94 L.Ed.2d at 335 n. 4.

Applying these factors, we conclude that the defendant established a legitimate expectation of privacy in her garage. We ascertain from the record that the garage into which Legg retreated was attached to her residence and closed to public view with doors. Thus, the garage was in very close proximity to the home and, being attached to the residence, was included within an enclosure — the walls— surrounding the home. The door to the garage was closed, indicating that Legg had taken steps to prevent passersby from seeing inside the structure. Although the record is silent as to the specific uses of the garage by Legg, we can infer from the officer’s description of the structure as a garage that it was used as a typical garage is used: to store vehicles and other items incident to the use of the premises as a home.

Given these facts, we think the garage “is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301, 107 S.Ct. at 1140, 94 L.Ed.2d at 335. This conclusion is consistent with decisions from other states that have concluded that a garage is part of the curtilage entitled to the safeguards of the Fourth Amendment. See Martin v. United States, 183 F.2d 436, 439 (4th Cir.1950); State v. Brochu, 237 A.2d 418, 423 (Me.1967); State v. Crea, 305 Minn. 342, 344, 233 N.W.2d 736, 739 (1975); State v. Wink-ler, 552 N.W.2d 347, 352 (N.D.1996). We turn now to a determination of whether the State unreasonably invaded Legg’s legitimate expectation of privacy.

IV. Reasonableness of Warrantless Entry.

The “central requirement” of the Fourth Amendment is reasonableness. Illinois v. McArthur, 531 U.S. 326, 329, 121 S.Ct. 946, 949, 148 L.Ed.2d 838, 847 (2001). In McArthur, the Court observed that in the past it had established “rules and presumptions designed to control conduct of law enforcement officers that may significantly intrude upon privacy interests.” Id. at 329, 121 S.Ct. at 949, 148 L.Ed.2d at 847. Nonetheless, it refused to adopt a per se rule of unreasonableness in the case before it. Id. at 331, 121 S.Ct. at 950, 148 L.Ed.2d at 847. Rather, to ascertain whether the seizure at issue in McArthur violated the Fourth Amendment, the Court “balance[d] the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” Id. at 331, 121 S.Ct. at 950, 148 L.Ed.2d at 848; accord Breuer, 577 N.W.2d at 47 (holding that to determine lawfulness of police conduct, court must balance “the intrusion on [the defendant’s] Fourth Amendment interests against promotion of legitimate governmental interests”).

It is helpful to our analysis of the present case to spend some time reviewing the balancing analysis the Court employed in McArthur. In that case, the police had accompanied the defendant’s wife to the trailer she shared with the defendant to “keep the peace” while she removed her belongings. McArthur; 531 U.S. at 328, 121 S.Ct. at 948, 148 L.Ed.2d at 846. When she exited the trailer, she informed the police that the defendant “had dope in there.” Id. at 329, 121 S.Ct. at 949, 148 L.Ed.2d at 846. The defendant denied an officer’s request to search the trailer. Id. One of the officers then left to obtain a warrant. Id. The remaining officer told the defendant he could not.reenter the trailer unless the officer accompanied him. Id. The defendant subsequently went into the trailer a few times and each time the officer stood just inside the door to observe the defendant’s actions. Id. When the other officer returned with the warrant, the police searched the trailer and discovered drug paraphernalia and marijuana. Id. In the defendant’s later trial on criminal charges, the trial court suppressed the evidence found in the defendant’s trailer, holding that his Fourth Amendment rights were violated. Id.

The United States Supreme Court reversed, concluding that the restrictions imposed on the defendant were reasonable. Id. at 328, 121 S.Ct. at 948, 148 L.Ed.2d at 846. The Court reached this conclusion by balancing “the privacy-related and law enforcement-related concerns.” Id. at 331, 121 S.Ct. at 950, 148 L.Ed.2d at 848. First, the Court relied on the fact that the police had probable cause to believe that evidence of a crime could be found in the defendant’s trailer. Id. Second, the Court noted that the police could have reasonably concluded that the defendant, “suspecting an imminent search, would, if given the chance, get rid of the drugs fast.” Id. Third, the Court found it significant that “the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy” by neither searching the trailer nor arresting the defendant until the warrant arrived. Id. Finally, the Court considered the restraint, which lasted two hours, to be “for a limited period of time.” Id. at 332, 121 S.Ct. at 951, 148 L.Ed.2d at 848.

The Court distinguished the case of Welsh v. Wisconsin, the primary authority upon which Legg relies. Id. at 333, 334, 121 S.Ct. at 952-53, 148 L.Ed.2d at 849-51 (citing Welsh v. Wisconsin, 466 U.S. 74Q, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). In Welsh, a witness had observed the petitioner driving erratically and then go off the road, winding up in an open field. 466 U.S. at 742, 104 S.Ct. at 2093, 80 L.Ed.2d at 738. The petitioner walked away from the scene of the accident. Id. at 742, 104 S.Ct. at 2094, 80 L.Ed.2d at 738. The witness told a police officer who subsequently arrived to investigate that the driver was either seriously ill or intoxicated. Id. at 743, 104 S.Ct. at 2094, 80 L.Ed.2d at 738-39. The officer then proceeded to the petitioner’s residence a short distance away. Id When the petitioner’s daughter opened the front door, the officer entered the petitioner’s home and arrested the petitioner in his bedroom. Id. at 743, 104 S.Ct. at 2094, 80 L.Ed.2d at 739. The Supreme Court held that the officer’s war-rantless entry was unreasonable, even though evidence of the petitioner’s intoxication might be lost if the arrest were not made immediately. Id. at 753-54, 104 S.Ct. at 2099-100, 80 L.Ed.2d at 745-46.

The Court began its analysis in Welsh with the premise “that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances.” Id. at 749, 104 S.Ct. at 2097, 80 L.Ed.2d at 743. Moreover, it pointed out that the Court had “recognized only a few such emergency conditions,” citing to cases involving the “hot pursuit of a fleeing felon” and the “destruction of evidence.” Id. at 750, 104 S.Ct. at 2097-98, 80 L.Ed.2d at 743 (citing United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300, 305 (1976); Schmerber, 384 U.S. at 770-71, 86 S.Ct. at 1835-36, 16 L.Ed.2d at 919-20). Rejecting any claim of exigent circumstances on the basis of potential destruction of evidence, the Court noted that the underlying offense for which there was probable cause to arrest the petitioner was “relatively minor.” Id. at 760, 104 S.Ct. at 2098, 80 L.Ed.2d at 743. The Court observed that “[t]he State of Wisconsin ha[d] chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment [was] possible.” Id. at 754, 104 S.Ct. at 2100, 80 L.Ed.2d at 746 (emphasis added). In view of this classification of the offense, the court held that the warrant-less arrest of the petitioner in his home could not “be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant.” Id. The Court also rejected the State’s claim that the arrest was justified on the basis of the hot pursuit doctrine or a threat to public safety:

On the facts of this case, ... the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime. Moreover, because the petitioner had already arrived home, and had abandoned his car at the scene of the accident, there was little remaining threat to the public safety.

Id. at 753, 104 S.Ct. at 2099, 80 L.Ed.2d at 745.

As we noted earlier, the Court in McAr-thur distinguished Welsh, noting that the crimes at issue in McArthur were “jaila-ble,” “class C misdemeanors,” whereas the driving-while-intoxicated offense in Welsh was a “nonjailable traffic offense.” McAr-thur, 531 U.S. at 335-37, 121 S.Ct. at 952, 953, 148 L.Ed.2d at 850-51. In addition, the Court noted that the restriction at issue in McArthur — “[temporarily keeping a person from entering his home”— was “considerably less intrusive than police entry into the home itself in order to make a warrantless arrest or conduct a search,” as occurred in Welsh Id. at 336, 121 S.Ct. at 953,148 L.Ed.2d at 851.

Before we attempt to apply the rules and analytical processes of McArthur and Welsh to the case before us, we briefly review the facts of a case upon which the State relies: United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Santana, a police officer made a controlled drug buy with marked bills from an individual — McCafferty—who had obtained the drugs at Santana’s residence while the officer waited in a car outside. 427 U.S. at 39-40, 96 S.Ct. at 2408, 49 L.Ed.2d at 303. After the officer and McCafferty drove away from Santana’s home, the officer placed McCafferty under arrest. Id. at 40, 96 S.Ct. at 2408, 49 L.Ed.2d at 304. In response to questioning, McCafferty told the officer that Santana had the money. Id The officer relayed this information to other officers who then drove to Santana’s home. Id When the police arrived at Santana’s residence, they saw her standing in the doorway of her house. Id The police got out of their car, shouting “police” and showing their identification. Id As they approached the house, Santana entered the vestibule of her residence. Id The officers followed her through the open door, catching her in the vestibule. Id A search of Santana’s person by police revealed some of the marked money and drugs. Id at 40-41, 96 S.Ct. at 2408-09, 49 L.Ed.2d at 304.

In determining whether the police conduct in entering Santana’s house infringed her constitutional rights, the Supreme Court began with the proposition that “the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment.” Id at 42, 96 S.Ct. at 2409, 49 L.Ed.2d at 305. The Court then considered “whether [Santana’s] act of retreating into her house could thwart an otherwise proper arrest.” Id The Court held that it could not because the police were in hot pursuit. Id In addition, the Court noted the intrusion was relatively minor and that “[o]nce Santana saw the police, there was likewise a realistic expectation that any delay would result in a destruction of evidence.” Id at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 305.

As might be expected, the State claims that Santana is dispositive here and requires affirmance of the trial court’s suppression ruling, whereas Legg asserts that Welsh sets forth the governing rule of law and requires reversal of the court’s ruling. We reject both arguments. There are distinguishing circumstances between the present case and the Santana and Welsh decisions that require our court to undertake an independent analysis here. We think these cases merely provide helpful guidance as we weigh the competing privacy and law enforcement concerns to determine whether the warrantless entry at issue in this case violated the Fourth Amendment. To set the stage for our analysis, we quote from one of our own cases that expressed the framework for the balancing process we are about to undertake:

whether the thing done [by government officials], in the sum of its form, scope, nature, incidents and effect, impresses as being fundamentally unfair or unreasonable in the specific situation when the immediate end sought is considered against the private right affected.

State v. Hilleshiem, 291 N.W.2d 314, 316 (Iowa 1980).

Turning to the particular circumstances of the case before us, we first note that when officer Killpack entered Legg’s garage, he had probable cause to arrest her for the crime of interference with official acts. See generally State v. Hams, 490 N.W.2d 561, 563 (Iowa 1992) (holding that probable cause requires “reasonable ground[s] for belief’ that the person to be arrested has committed a crime); see also State v. Horton, 625 N.W.2d 362, 365 (Iowa 2001) (“[I]t is clear probable cause need not rise to the level of proof required for conviction, or even indict-ment_”). This offense is committed when a person “knowingly resists or obstructs anyone known by the person to be a peace officer ... in the performance of any act which is within the scope of the lawful duty or authority of that officer.” Iowa Code § 719.1. Legg’s conduct in speeding up her car, running a stop sign, driving to her home, and retreating into her garage, after officer Killpack had started to pursue her with his lights activated, gave Killpack reasonable grounds to believe that Legg was knowingly obstructing Killpack’s lawful performance of his duty to issue her a ticket for her initial traffic offense. See State v. Baumann, 616 N.W.2d 771, 774-75 (Minn.Ct.App. 2000) (finding probable cause for obstruction of legal process where defendant failed to stop after exiting his vehicle and closed the garage door on the officer despite the officer’s activation of his squad car’s overhead lights); Winter v. State, 902 S.W.2d 571, 573 (Tex.Ct.App.1995) (finding probable cause to arrest for evading arrest where officer activated his emergency lights and air horn, but defendant did not stop, drove to his home and pulled into his garage), Thus, at the time of Killpack’s warrantless entry into Legg’s garage, he had probable cause to arrest her for this crime. Significantly, the offense of interference with official acts is a serious misdemeanor, punishable by imprisonment up to one year and a fine of at least $250. See Iowa Code §§ 719.1, 903.1(1)(6).

Another important circumstance in this case is the fact that officer Killpack was in hot pursuit of the defendant when she retreated to her garage. See Santana, 427 U.S. at 42-43, 96 S.Ct. at 2410, 49 L.Ed.2d at 308 (holding that “ ‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry ‘in and about [the] public streets’ ”). Society has an interest in not rewarding the evasion of lawful police authority by allowing suspects who make it to their homes steps ahead of law enforcement officers to claim sanctuary. See Gasset v. State, 490 So.2d 97, 98-99 (Fla.Dist.Ct.App.1986) (“The enforcement of our criminal laws, including serious traffic violations, is not a game where law enforcement officers are ‘it’ and one is ‘safe’ if one reaches ‘home’ before being tagged.”). If such evasion were permitted, every attempt by police to stop a vehicle could potentially result in a race to the driver’s home. See State v. Paul, 548 N.W.2d 260, 267 (Minn.1996) (rejecting argument that police may enter a defendant’s home only when in hot pursuit of a felon, noting such a rule “would encourage drunk drivers to elude the police by racing through the streets to the sanctuary of their homes in order to ‘freeze’ a hot pursuit or to otherwise evade a lawful arrest”).

The fact that the police were in hot pursuit of Legg is important for an additional reason. An officer in Killpack’s position could reasonably suspect that Legg was driving while intoxicated based on her actions in running two stops signs and weaving from one side of the road to the other. Here, the officer’s pursuit of Legg put her on notice that the police were, at the least, suspicious of her conduct. Thus, there was a real possibility that any delay to obtain a warrant would result in the destruction of evidence. If Legg’s arrest had been delayed, she would have had the opportunity to drink alcohol in her home, thereby obscuring the source of the alcohol in her system and making difficult, if not impossible, any determination, from a subsequent blood-alcohol test, of the amount of alcohol in her system when she was driving. See id. Even if Legg would not have purposely tried to destroy evidence of her blood-alcohol level, this evidence would have naturally dissipated during any delay.

Another important circumstance in this case is the nature of the intrusion. Kill-pack entered Legg’s garage, not her house proper as in Santana or her bedroom as in Welsh. See McArthur, 531 U.S. at 336, 121 S.Ct. at 953, 148 L.Ed.2d at 851 (distinguishing the intrusion of police in Welsh into the defendant’s bedroom from the “less serious” intrusion made in McArthur that consisted primarily of preventing the defendant from entering his home without the police). In addition, the magnitude of the infringement was rather slight. Kill-pack’s entry into Legg’s garage was no surprise to her; he was following closely on her heels when she entered the garage. In addition, he entered through an open door and took only three steps inside. Thus, the intrusion was peaceful and restricted to that which was necessary to allow the officer to speak with Legg.

When we examine the competing interests in this case, we conclude that the officer’s conduct was reasonable. Although Legg certainly had a legitimate expectation of privacy in her garage, there were exigent circumstances and probable cause that justified Killpack’s minimal invasion of this privacy interest. Killpack had probable cause to arrest Legg for a serious misdemeanor while she was in a public place. Unlike the civil infraction at issue in Welsh, the crime believed to be committed in the present case could possibly have resulted in a one-year jail term. Cf McArthur, 531 U.S. at 335,121 S.Ct. at 952, 148 L.Ed.2d at 850 (finding a “significant distinction” between the “ ‘nonjailable traffic offense’ of driving while intoxicated” at issue in Welsh and the “jailable” misdemeanors at issue in McArthur)-, Dyer v. State, 680 So.2d 612, 613 (Fla.Dist.Ct.App. 1996) (stating that misdemeanor possession of marijuana, punishable by up to a year in jail, was “a much more serious offense than in Welsh ”); Paul, 548 N.W.2d at 267 (distinguishing Welsh on the basis that the offense involved in Paul was a misdemeanor for which imprisonment was possible); Stark v. N.Y. State Dep’t of Motor Vehicles, 104 A.D.2d 194, 483 N.Y.S.2d 824, 826 (1984) (finding Welsh “readily distinguishable” in part because New York classified OWI as a misdemeanor punishable by up to one year in jail); Winter, 902 S.W.2d at 574 (holding that Welsh was distinguishable because the officer in Winter had probable cause to arrest for evading arrest, a “jailable” offense). In addition, there were exigent circumstances here. The police officer had witnessed the commission of a crime and was in hot pursuit when Legg retreated to her garage. Thus, the concerns present in Santana are present here: (1) the “realistic expectation ... that any delay would result in destruction of evidence”; and (2) the undesirable consequences of allowing a person to thwart an otherwise proper arrest “by the expedient of escaping to a private place.” Santana, 427 U.S. at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 305-06. Finally, the intrusion that occurred in this case was relatively minimal. See Gasset, 490 So.2d at 99 (characterizing officers’ warrantless entry into the defendant’s garage as a “de minimis intrusion”); cf. Breuer, 577 N.W.2d at 49 (characterizing State’s conduct in opening exterior door, entering hallway, and walking up stairs to defendant’s apartment door as a “minimal intrusion,” despite defendant’s legitimate expectation of privacy in these areas).

In summary, when “the immediate end sought is considered against the private right affected,” Killpack’s conduct does not impress us “as being fundamentally unfair or unreasonable.” Hilleshiem, 291 N.W.2d at 316. Therefore, we hold Legg’s Fourth Amendment rights were not violated. See Gasset, 490 So.2d at 98-99 (holding that warrantless entry into the defendant’s garage was constitutional because officers were in hot pursuit of the defendant and had probable cause to arrest the defendant for two misdemeanors, one punishable by up to ninety days in jail and the other punishable by up to one year in jail); Baumann, 616 N.W.2d at 776 (finding no Fourth Amendment violation based on officer’s warrantless entry into defendant’s garage, where officer had probable cause to arrest defendant for obstruction of legal process and was in hot pursuit); State v. Penas, 200 Neb. 387, 389, 263 N.W.2d 835, 837 (1978) (finding no Fourth Amendment violation where officer, who was in hot pursuit, had probable cause to arrest for OWI and eluding); Stark, 483 N.Y.S.2d at 826 (upholding warrantless entry into defendant’s bedroom, where defendant had retreated after police pursuit, noting that police had probable cause to arrest defendant for misdemeanor OWI); Winter, 902 S.W.2d at 574-76 (holding officer in hot pursuit of driver he suspected of OWI could enter the defendant’s garage without a warrant where there was probable cause to arrest for evading arrest); cf. Breuer, 577 N.W.2d at 49 (holding that officer’s warrantless entry into area of apartment house in which defendant had legitimate expectation of privacy was reasonable in view of officer’s need to investigate complaint of reckless driving). Accordingly, the trial court did not err in denying Legg’s motion to suppress. We therefore affirm her conviction.

AFFIRMED.

All Justices concur except LARSON, J., who takes no part.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . The defendant also asserts that her right against unreasonable searches and seizures guaranteed by the Iowa Constitution has been violated. See Iowa Const, art. I, § 8. Our court has generally interpreted this provision of the Iowa Constitution to have the same scope and purpose as the Fourth Amendment. See State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). The defendant has offered no reason to distinguish the state constitutional guarantee from the federal provision as it has been interpreted by the United States Supreme Court with respect to the issue before us. Therefore, our discussion of the Fourth Amendment applies equally to the state constitutional claim.

      . After the events giving rise to the present case, the legislature amended section 719.1(1) to make the crime of interference with official acts a simple misdemeanor, subject to a fine of at least $250.00 but no more than $500.00 and/or imprisonment not to exceed thirty days. See 1999 Iowa Acts ch. 153, §§ 21, 24 (codified at Iowa Code §§ 719.1(1), 903.1(l)(a) (Supp.1999)).

      . The United States Supreme Court has not expressed an opinion on “the degree of Fourth Amendment protection afforded the curtilage, as opposed to the home itself.” Oliver, 466 U.S. at 180 n. 11, 104 S.Ct. at 1742 n. 11, 80 L.Ed.2d at 225 n. 11.

      . Record evidence is scant with respect to the relationship of the garage to Legg's residence. The lack of abundant evidence on this aspect of the case may be due to the fact that the State did not challenge Legg’s legitimate expectation of privacy in her garage in the district court. Overlooking this possible error-preservation problem, however, we think the officer’s report supports a finding that the garage was attached to the residence. Kill-pack repeatedly referred to the door through which Legg entered the garage as the “door of her residence.” (Emphasis added.) He also made the statement that he talked with her "after [he] got her out of the house.” (Emphasis added.) The record is equally clear that Legg had only made it into her garage and not into the house proper when officer Killpack caught up with her.

      . Legg also cites our decision in State v. Johnson, 232 N.W.2d 477 (Iowa 1975), as setting forth a definitive test for the existence of exigent circumstances adequate to justify the warrantless entry into a house to make an arrest. This case is simply not on point because it does not involve a hot pursuit, as does the matter before us. Moreover, as we made clear in Johnson, "[t]he standards by which a search and seizure are to be measured cannot be couched in fixed and inflexible terms. Each case must be decided on its own facts and circumstances.” Johnson, 232 N.W.2d at 479.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Pablo Gabriel LOPEZ, Appellant.
    No. 00-0238.
    Supreme Court of Iowa.
    Sept. 6, 2001.

      Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
    Kent A. Simmons, Davenport, for appellant.

       Senior Judge. assigned by order pursuant to Iowa Code section 602 .9206 (2001).

   LAVORATO, Chief Justice.

Pablo Gabriel Lopez appeals from a judgment of conviction and sentence on charges of robbery in the first degree, possession with intent to deliver a controlled substance, and failure to affix a drug tax stamp. Following a bench trial, the district court found Lopez guilty of these charges.

On appeal, Lopez contends the district court abused its discretion in denying his request for substitute counsel. He also contends he should receive a new trial due to the State’s failure to notify him of his right to contact the Mexican consulate. In addition, he raises a number of issues based on his allegation of ineffective assistance of counsel. Finally, he contends there was insufficient evidence to support a conviction of first-degree robbery.

We affirm.

I. Facts.

The district court made detailed findings of fact regarding the charges, and substantial evidence supports those findings. Those facts reveal the following.

On August 18, 1999, sometime after 10:30 p.m., Lopez and Danny Burton confronted Ryan York on the steps of an apartment building in Davenport, Iowa. Lopez circled around behind York while Burton stood on the steps below and in front of York. Lopez demanded that York give up his bracelet and necklace. To reinforce that demand, Burton showed York that he had a handgun. Lopez repeated his demand. Because of the implied threat of serious injury from the gun, York laid down the jewelry, which Burton took. Burton and Lopez then left the area.

Shane Schwiesow saw and heard what happened. He testified to Lopez’s demand, Burton’s display of the gun to back up Lopez’s demand, York’s yielding to the demand, and Burton’s action in picking up the jewelry.

Gary Morehouse, who was in the car that brought Lopez, Burton, and him to the apartment, testified that Burton had the gun when Burton got out of the car. Morehouse also testified that Burton said he was going to rob York.

On September 2, police detective William J. Thomas contacted Lopez at Lopez’s place of employment. When Thomas asked Lopez for some identification, Lopez took out his billfold and opened it. At that point, Thomas saw what appeared to be small packets of white powdery substances. Thomas asked to search the billfold, and Lopez consented. Thomas found six individually wrapped packets of what he thought was cocaine. Tests later proved Thomas was correct. The total weight of the cocaine was 1.41 grams. There were no drug tax stamps attached to the cocaine.

II. Proceedings.

In a trial information, the State charged that Lopez and Burton committed or aided and abetted the commission of first-degree robbery on or about August 18, 1999. See Iowa Code §§ 703.1; 711.1(1), (2), (3), .2 (1999). The same trial information additionally charged that on September 2, 1999, Lopez possessed crack cocaine with intent to distribute. See Iowa Code §§ 124.401(l)(c)(3), .206(2)(d). Finally, the trial information alleged that Lopez, on September 2, 1999, possessed, as a dealer, crack cocaine to which no appropriate drug tax stamp had been affixed. See Iowa Code §§ 453B.l(3)(d), .3, .7(4), .12.

All parties agree that Lopez is a Mexican national.

On December 16, the matter came before district judge James R. Havercamp for a plea proceeding. Trial was scheduled for December 20.

At the outset of the proceedings, defense counsel informed the court that Lopez wanted to change lawyers because of a breakdown in communications between Lopez and him. Counsel also advised the court that Lopez was willing to waive speedy trial if the court would appoint him a new lawyer.

The court quizzed counsel as to his preparation for the case and whether he had discussed trial strategy with Lopez. The court then gave Lopez an opportunity to tell him what the problem was.

The court subsequently denied Lopez’s request for substitute counsel, noting that there was no reason to remove defense counsel and that trial was only four days away.

Following a recess, the court reconvened to address Lopez’s waiver of a jury trial. The State raised no objection. Following a colloquy with Lopez, the court permitted the waiver.

The case proceeded to trial on December 20. Before hearing the evidence, district judge James E. Kelley conducted a second colloquy regarding the jury trial waiver. The court approved the waiver, determining that Lopez understood his right to a trial by jury and finding that Lopez had knowingly and intentionally waived that right.

Several days later, judge Kelley in a written decision found Lopez guilty of all charges.

The day before sentencing, Lopez filed a pro se motion for new trial. He alleged that the police were guilty of witness tampering and coercion, thereby denying him a fair trial. Lopez’s attorney also filed a motion for leave to file an untimely motion in arrest of judgment. The motion alleged that the police knew Lopez was a Mexican national and that, at the time of Lopez’s arrest, the police did not provide Lopez with an opportunity to contact the Mexican consulate in violation of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77 [Vienna Convention].

Following a hearing on both motions, judge Kelley found there was sufficient evidence to support the verdicts and that there was no evidence of witness tampering or coercion.

Regarding the issues in the motion in arrest of judgment, judge Kelley concluded Lopez had no individual right to contact the consular office and therefore no right that could have been violated. Additionally, the court determined that if a right had been violated, there was no prejudice.

Thereafter, the court pronounced judgment and sentence, and this appeal followed.

III. Request for Substitute Counsel.

A. Scope of review. Our review of a district court’s denial of a request for substitute counsel is for abuse of discretion. State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). To establish an abuse of discretion, Lopez must show that “the court exercised the discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).

B. Applicable law. The Sixth Amendment right to counsel does not guarantee a “meaningful relationship between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621 (1983). To justify the appointment of substitute counsel, a defendant must show sufficient cause. Martin, 608 N.W.2d at 449. “Sufficient cause includes ‘a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.’” Id. (quoting State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994)).

In determining whether to grant a request for substitute counsel, “the court must balance ‘the defendant’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.’ ” Id. (quoting Webb, 516 N.W.2d at 828). The court should not permit a defendant to manipulate the right to counsel to delay or disrupt the trial. United States v. Svnnney, 970 F.2d 494, 499 (8th Cir.1992). Additionally, the court should not allow “last-minute requests to substitute counsel ... to become a tactic for delay.” Id.; accord Webb, 516 N.W.2d at 828. For these reasons, the court has considerable discretion in ruling on a motion for substitute counsel made on the eve of trial. State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995).

Ordinarily, a defendant must show prejudice when the court denies a motion for substitute counsel “unless [the defendant] has been denied counsel or counsel has a conflict of interest.”- Id. Because Lopez does not assert either ground, he must show prejudice. See id.

C. Analysis. As mentioned, at a hearing shortly before trial, Lopez’s attorney orally relayed to judge Havercamp that Lopez wanted new counsel because of a breakdown in communication. The court first noted that the trial was scheduled to begin in four days. The court then inquired of defense counsel whether he (1) had represented Lopez since Lopez was charged, (2) had investigated the facts and circumstances of the case, (3) had taken those depositions that counsel felt were appropriate, and (4) was prepared for trial. Counsel answered affirmatively to each of these questions.

The discussion continued:

COURT: You told me that there are— some of his concerns are there seems to be some discrepancies between police reports and deposition testimony.
DEFENSE COUNSEL: That’s correct, your honor.
COURT: You’re prepared to point those out to the jury?
DEFENSE COUNSEL: Yes, your hon- or.
COURT: You and he have discussed the trial strategy?
DEFENSE COUNSEL: On several occasions, your honor, yes.
COURT: And is there any disagreement with respect to that strategy? I notice that the co-defendant has been severed from trial.
DEFENSE COUNSEL: No, your hon- or, not that I can tell.
COURT: All right. Then why don’t you tell me what’s the problem, Mr. Lopez?
DEFENDANT: Yes, sir. I was ready to sign the plea agreement, but I feel that I’m guilty of the charge of robbery in first degree and also the drugs. I mean, I can pay for that, I mean in jail. I’m sorry, but I’ve been trying to learn with a dictionary since I’m in here.
I checked my papers just before they got me from my cell, and I seen that somebody changed the words from the depositions, and I like approval on paper, so I would like you to see those papers.
COURT: Well, this is what I pointed out. There may — what you’re talking about is you’ve got minutes of testimony of what the — maybe some police reports of what the police are going to say, is that right, and you’ve looked at those? You’ve got those in your packet?
DEFENDANT: Yes.
COURT: And now some depositions of those people have been taken, and word for word, they are not the same.
DEFENDANT: No, no. I’m not talking about that. I’m talking about the paper of Officer Glover, a cop, I guess, and he changed two words. I think those words are important.
COURT: I’m sure they are. [The defense attorney] will point these out to the jury. Now look, neither [the defense attorney] nor I want you to sign a plea agreement if you don’t — if you don’t want to sign that plea agreement and particularly if you think you’re not guilty of these charges, but that has nothing to do with whether or not [the defense attorney] can adequately represent you.
He tries to get you the best deal he can. If that’s not acceptable to you, that’s fine. We’ll go to trial, but there’s nothing in the record that would convince the court that you couldn’t get a fair and adequate representation from [the defense attorney]. He’s a criminal attorney with many years’ experience.
I don’t know who I would replace at this point in time who would be better qualified to represent you. He can bring out those inconsistencies to the jury, and it’s up to them to resolve which of those statements is closer to the truth.
I simply don’t see a reason to remove [the defense attorney] from representing you now at this juncture, and the request to change counsel is denied, and you can go to trial Monday morning. That’s all.

Lopez’s primary complaints on appeal are two. First, there was a breakdown in communication. Second, judge Haver-camp failed to make a proper inquiry into whether such a breakdown had occurred.

When a defendant asserts a conflict of interest or when the district court “knows or reasonably should know a particular conflict exists,” the court has a duty to inquire about the conflict. State v. Watson, 620 N.W.2d 233, 238 (Iowa 2000) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333, 346 (1980)); State v. Atley, 564 N.W.2d 817, 828 (Iowa 1997). However, in the context of breakdown in communication, we have not yet imposed such a responsibility on trial judges. However, according to federal authority, a duty of inquiry exists whenever a defendant requests substitute counsel. See United States v. Webster, 84 F.3d 1056, 1062 n. 2 (8th Cir.1996) (“[0]nce an indigent defendant requests substitute counsel, the court has a duty to inquire into the factual basis of the defendant’s dissatisfaction.”). This includes situations in which a breakdown in communication is asserted. See Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir.2000); Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir.2000); United States v. Davidson, 195 F.3d 402, 407-08 (8th Cir.1999).

Here, there was a specific request for substitution of counsel. The State does not dispute that a duty of inquiry exists. What the State does assert, however, is that judge Havercamp made an adequate inquiry. For reasons that follow, we agree.

The quoted portion of the reported hearing shows that judge Havercamp did inquire of defense counsel as to whether he had adequately prepared for trial and whether there was any disagreement with the planned strategy. The judge did not, however, ask defense counsel about any communication difficulties between Lopez and him.

However, and more important, judge Havercamp did ask Lopez to explain any communication problem. In answer to this question, Lopez simply talked about his concern regarding a police report in the case. Lopez’s response, if anything, only showed frustration with the proceedings and concern about the validity of certain evidence. Lopez did not tell the court that defense counsel would not be able to or was unwilling to address those concerns during the trial. Moreover, Lopez did not give any reason why he believed communication between his lawyer and him had broken down.

In Webster, the court faced a similar situation. ■ In that case, the defendant told the trial court on the fourth day of trial that he wanted to discharge his appointed attorney. Webster, 84 F.3d at 1060. The court delved into the basis for the defendant’s discontent and went so far as to allow the defendant without fear of incrimination to make any statement for the record. Id. at 1061. The defendant told the court that he wanted to discharge his attorney because the defendant thought the transcripts of certain pretrial hearings were inaccurate and contained statements from individuals who had not testified at the proceedings. Id. After finding that the offered reasons had “nothing to do with the effectiveness of [appointed counsel],” the district court denied the defendant’s request to discharge his attorney. Id.

The appellate court affirmed the denial of substitute counsel, explaining:

In this case, the district court acted well within its wide discretion when it declined to provide substitute counsel,... [A]s the district court correctly observed, the alleged basis for [defendants complaints had absolutely nothing to do with [defense counsels representation, but rather involved perceived inaccuracies in transcripts of pretrial proceedings. Accordingly, we find that the district court correctly refused [defendants attempt to obtain substitute counsel.

Id.

Likewise, here, the basis of Lopez’s complaints had nothing to do with defense counsel’s representation. Rather, those complaints involved what Lopez considered to be inconsistencies between a police report and the deposition of the officer who made the report. Judge Havercamp gave Lopez ample opportunity to explain the alleged conflict between the defense counsel and Lopez — an explanation Lopez utterly failed to give. Contrary to Lopez’s contention, the judge made adequate inquiry into Lopez’s complaints, and Lopez gave the judge no reason to believe that the inquiry was not adequate.

We find no abuse of discretion here.

IV. Vienna Convention.

Lopez next contends he should have a new trial because the State failed to notify him at the time of his arrest of his right to contact the Mexican consulate pursuant to the Vienna Convention.

A. Scope of Review. Federal courts have routinely held that interpretation or construction of a treaty is subject to de novo review. See, e.g., Blake v. Am. Airlines, Inc., 246 F.3d 1213, 1216 (11th Cir.2001). However, the meaning of the language used in a treaty is a question of law. United States v. Page, 232 F.3d 636, 640 (6th Cir.2000).

Here, the district court treated Lopez’s motion in arrest of judgment regarding the Vienna Convention contention as a motion for new trial. Our review of a district court ruling on a motion for a new trial depends on the grounds in the motion. Channon v. United Parcel Service, Inc., 629 N.W.2d 836, 859 (Iowa 2001). To the extent the motion is based on discretionary grounds, we review it for an abuse of discretion. Id. But if the motion is based on a legal question, our review is on error. Id.

Lopez’s motion with regard to the Vienna Convention raises a legal question. Therefore, regardless of the scope of review the federal appellate courts use, we review the district court’s ruling for correction of errors at law. See Iowa R.App. P. 4; see also Brown v. Peterson, 185 Iowa 314, 317, 170 N.W. 444, 445 (1919) (affirming district court’s construction of treaty between United States and Sweden when “no error in the record” was found).

B. Analysis. The Vienna Convention is a 79-article, multilateral treaty. "United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir.2001). The treaty was negotiated in 1963, and the United States ratified it in 1969. Id. Mexico is also a signatory to the treaty. Id.

Article 36 of the Vienna Convention— the specific provision at issue here — provides in pertinent part:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or custody pending trial or is detained in any matter. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph....

Vienna Convention, 21 U.S.T. at 101.

1. Individually enforceable right. Recently, we declined to say whether Article 36 of the Vienna Convention actually creates an individually enforceable right to consular notification. See Ledezma v. State, 626 N.W.2d 134, 150 (Iowa 2001). We did point out, however, that courts are divided on the issue, and we discussed the reasoning of the camps, both of which rely on the language of Article 36. See id. at 150-51; see also Germany v. United States, 2001 I.C.J. - (June 27, 2001), available at http://www.icj-cij.org/ icjw ww/idocket/igus/igusjudgment/igus_ijudg-ment_toc.htm (International Court of Justice holding' that “Article 36, paragraph 1 creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in [the International Court of Justice] by the national State of the detained person”). We also noted that a “majority of courts assume, without deciding, such a right does exist, and then hold the requested remedy is inappropriate or the defendant did not prove he was prejudiced by the alleged Article 36 violation.” Ledezma, 626 N.W.2d at 151.

Finally, we noted that those courts that have found the existence of an individually enforceable right to notification “have often relied upon Supreme Court dicta in Breard v. Greene [, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) ].” Id. In Breard, the Supreme Court commented that Article 36 “arguably confers on an individual the right to consular assistance following arrest.” Breard, 523 U.S. at 376, 118 S.Ct. at 1355, 140 L.Ed.2d at 538 (emphasis added). The Court, however, dismissed the habeas corpus petition, concluding that the petitioner’s Article 36 claims were proeedurally barred. Id. at 375-77, 118 S.Ct. at 1354-55, 140 L.Ed.2d at 537-38. The court also gratuitously pointed out that even if the petitioner’s claims had been properly raised, there was no showing by the petitioner that the alleged Article 36 violation resulted in prejudice. Id. at 377, 118 S.Ct. at 1355, 140 L.Ed.2d at 538.

Those federal courts that have recognized the existence of an individually enforceable right have put the burden on the defendant to show actual prejudice. They have done so, concluding that the Article 36 right to notification is not a fundamental right. Prejudice is presumed when a violation of a fundamental right is involved. No such presumption arises from a violation of a right that is not fundamental. See Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.1997); United States v. Ore-Irawa, 78 F.Supp.2d 610, 613-14 (E.D.Mich.1999); United States v. Briscoe, 69 F.Supp.2d 738, 745-47 (D.Vi.1999); United States v. Rodrigues, 68 F.Supp.2d 178, 183 (E.D.N.Y.1999); United States v. Torres-Del Muro, 58 F.Supp.2d 931, 933-34 (C.D.I11.1999).

For purposes of this case, we assume without deciding that Article 36 creates an individually enforceable right of notification. Even so, we agree with those courts that have held that to the extent Article 36 creates an individually enforceable right, such right does not rise to the level of a fundamental right. We therefore require a showing of actual prejudice before we afford any remedy for a violation of the Article 36 right.

2. Prejudice. In United States v. Villa-Fabela, the appellate court adopted a test for prejudice to be used when a defendant asserts a violation of INS consular notification regulations premised on Article 36. 882 F.2d 434 (9th Cir.1989), overruled on other grounds by United States v. Proa-Tovar, 975 F.2d 592, 694-95 (9th Cir.1992) (en banc). Several federal courts have applied Villa-Fabela in determining whether a defendant has been prejudiced by violation of the Article 36 right to consular notification. See, e.g., United States v. Raven, 103 F.Supp.2d 38, 41 (D.Mass.2000) (adopting the definition); Briscoe, 69 F.Supp.2d at 747 (same); United States v. Alvarado-Torres, 45 F.Supp.2d 986, 990 (S.D.Cal.1999) (same); United States v. Tapia-Mendoza, 41 F.Supp.2d, 1250, 1254 (D.Utah 1999) (same); see also Murphy, 116 F.3d at 100-01 (same); United States v. Chaparro-Alcantara, 37 F.Supp.2d 1122, 1126 (C.D.I11.1999) (same). Under Villa-Fabe-la, the defendant has the burden of establishing that “(1) he did not know of his right; (2) he would have availed himself of the right had he known of it; and (3) ‘there was a likelihood that the contact [with the consulate] would have resulted in assistance to himVilla-Fabela, 882 F.2d at 440 (quoting United States v. Ran-geh-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980)). We adopt this test, but further recognize that “it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” Breará, 523 U.S. at 377, 118 S.Ct. at 1355, 140 L.Ed.2d at 538 (emphasis added). Lopez asserts he has satisfied the prejudice test.

We assume without deciding that the arresting officers knew that Lopez was a Mexican national yet failed to advise Lopez of his right to contact the Mexican consulate. For reasons that follow, however, we conclude Lopez has failed to show he suffered prejudice because of this failure.

Lopez testified at the hearing on his posttrial motions. From this testimony, we learn that Lopez knew by the time of his trial that he had a right to contact the Mexican consulate:

Q. Prior to the trial that we had in this matter on December 20, did you know that you had a right to contact the Mexican consulate? A. I wasn’t sure, but I was trying. I was trying to find some sort of help.
Q. But did you know that you had a right to contact them? A. Yes.
Q. When did you know that? A. I’m not sure, but I think that every illegal Mexican in this part of the United States has that right.
Q. What I’m asking you is when did you know that you had a legal right to contact the Mexican consulate? A. Around the time of my trial, the date of my trial.

Although Lopez knew he had the right to contact the Mexican consulate at around the time of his trial, he waited until after he was convicted to advise his lawyer to contact the Mexican consulate. Such conduct belies any claim that he would have sought such assistance had he known of such right.

Lopez contends that a consular official would have arranged for alternate legal counsel that would have been better able to communicate with Lopez. Lopez also asserts that alternate counsel selected by the consulate would have properly obtained separate trials for the robbery and drug tax stamp charges. Finally, he asserts that, had he been able to contact the consulate, he would have accepted a plea agreement offered by the State.

The problem with these claims is that they are all speculative. As the district court noted, Lopez points to no evidence in the record to support these claims either by way of affidavit of the Mexican consulate or by his own testimony. Cf Breará, 523 U.S. at 376, 118 S.Ct. at 1355, 140 L.Ed.2d at 538 (noting that the defendant could not “establish how the Consul would have advised him, how that advice of his attorneys differed from the advice the Consul could have provided, and what factors he considered in electing to reject the plea bargain that the State offered him”). We conclude that Lopez did not show that contacting the Mexican consulate would have resulted in assistance to him as he now contends. Our conclusion does not require us to determine whether the violation had an effect on the trial.

The district court did not err in denying Lopez’s motion for new trial.

V. Ineffective Assistance of Counsel.

Lopez also raises various claims of ineffective assistance of counsel. In support of his claims, Lopez argues that his defense counsel was ineffective in failing to (1) notify the Mexican consulate of the criminal charges in a timely manner, (2) move for a severance of counts, (3) effectively inform Lopez of the particulars of the plea agreement, (4) take the charges to separate jury trials, and (5) focus the court’s attention on the inconsistencies surrounding the presence of a weapon. The State contends that the record is not sufficient to resolve these claims because Lopez’s attorney has not had an opportunity to respond.

We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Cerón, 573 N.W.2d 587, 590 (Iowa 1997). Normally, such claims will be considered on direct review only when the record is clear and trial counsel’s actions cannot be explained by plausible strategic or tactical considerations. Id. We agree with the state’s contention and preserve Lopez’s claims for a postconviction relief action, with one exception. See Atley, 564 N.W.2d at 833 (reserving ineffective-assistance-of-counsel claims for postconviction proceedings when record was insufficient to resolve claims on direct appeal); State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (same). That exception relates to counsel’s alleged failure to notify the Mexican consulate of the criminal charges in a timely manner. We have already determined that Lopez has failed to establish any prejudice because of his failure to talk with the consulate.

VI. Sufficiency of the Evidence.

The district court found that Lopez was guilty of first-degree robbery. One of the elements the State had to prove was that Lopez aided and abetted Burton, who at the time was armed with a dangerous weapon. Lopez points out that the testimony of York, the victim, and Schwiesow, the eyewitness, was inconsistent regarding how or whether a weapon was displayed by Burton and whether the weapon was a revolver or a semiautomatic pistol. Lopez contends that this testimony is so impossible, absurd, and self-contradictory that we should disregard it entirely. He concludes that without this testimony there is no other evidence of a robbery or at the very least no evidence of first-degree robbery because there was no proof on the weapon element.

In State v. Smith, a case Lopez cites in support of his contention, the court of appeals rejected the testimony of three young victims as to their accounts of an alleged sexual abuse. 508 N.W.2d 101, 103 (Iowa Ct.App.1993). The court noted that, “[wjhen read separately or together, the accounts of alleged abuse are inconsistent, self-contradictory, lacking in experiential detail, and at times, border on the absurd.” Id.

In Smith, the court recognized the rule that the jury is to reconcile the conflicting testimony of a witness and that generally there is no limitation on this jury function. Id. at 102-03. The one exception, the court noted, is that “ ‘[t]he testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court.’” Id. (quoting Graham v. Chicago & N.W. Ry., 143 Iowa 604, 615, 119 N.W. 708, 711 (1909)); see also State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997).

Here, York told officer Glover just a few hours after the alleged crime that Burton “removed the gun from his waistband, racked a round into the chamber ... and pointed it at him and said ‘I’m not kidding’ or something like that.” At trial, York testified Burton only displayed the butt of the gun in his waistband. He said he did “not believe” he told officer Glover that Burton took the gun out and pointed it at him.

Schwiesow told detective Thomas that Burton pulled out the weapon and pointed it. At trial, Schwiesow testified Burton just lifted up his shirt and displayed only the gun’s handle. He also testified he told the detective the weapon was black, while the detective’s report was that Schwiesow told the detective the weapon was a silver automatic.

These inconsistencies do not brand the challenged testimony of the victim and eyewitness as being so impossible and absurd that we should disregard it. Moreover, Lopez ignores the testimony of his companion, Gary Morehouse, who corroborates the victim’s and eyewitness’s testimony. Morehouse testified that he was in the car that brought Lopez, Burton, and him to the scene of the alleged crime. He also testified that Burton had a gun when Burton got out of the car and that Burton said he was going to rob York.

Here, the issue of credibility .of the witnesses was for the court to decide because it was the fact finder. The court made a specific finding on credibility:

The Court finds that Ryan York is more credible than the defendant in the testimony presented to the Court. [Lopez testified he was in the apartment when the alleged robbery occurred.] Independent witnesses support the basic elements of Ryan York’s testimony. Specifically, the Court believes the testimony of Shane Schwiesow regarding the vocal demands of the defendant and the display of a dangerous weapon on the person of Danny Burton which backed up and enforced the demand for Ryan York’s jewelry.

The court as fact finder could believe some of the testimony, all of the testimony, or none of it. See State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996) (“A jury is free to believe or disbelieve any testimony as it chooses and give as much weight to the evidence as, in its judgment, such evidence should receive.”). The court as fact finder chose to ignore the inconsistencies that Lopez complains of and chose to believe those elements of the witness’s testimony that supported the first-degree robbery charge. We find no fault with the court’s ultimate determination that there was sufficient evidence to find Lopez guilty of first-degree robbery.

VII. Disposition.

In sum, we conclude the district court did not abuse its discretion in denying Lopez’s request for substitute counsel and did not err in denying Lopez’s motion for new trial. Additionally, there was sufficient evidence for the district court to convict Lopez of first-degree robbery. We preserve for postconviction relief Lopez’s claims of ineffective assistance of counsel. Accordingly, we affirm.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.