author: WILBUR, Circuit Judge. SABERS, Justice

text:
    2001 SD 49
    Glenn BAKER, Holly Baker, Paul Baker, Gloria Baker, Andrew G. Ridley, Kimmie D. Ridley, Dave O. Meredith, Patricia R. Meredith, Robert Morcom, Cathy Sulentic Morcom, Robert Harlan, Gen Harlan, Reed C. Richards, Ester M. Richards and the Save Centennial Valley Again Assn., Petitioners and Appellees, v. Connie ATKINSON, Lawrence County Auditor, and the Lawrence County Commission, Appellees, and Frawley Ranches, Inc., Intervenor and Appellant.
    No. 21394.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided April 18, 2001.

      Reed C. Richards of Richards and Richards, Deadwood, SD, Attorneys for petitioners and appellees.
    John Fitzgerald and Bruce Outka, Lawrence County States Attorneys, Deadwood, SD, Attorneys for appellees.
    Brad P. Gordon and Roger Tellinghui-sen of Fuller, Tellinghuisen, Gordon & Percy, Spearfish, SD, Attorneys for inter-venor and appellant.
   WILBUR, Circuit Judge.

[¶ 1.] Frawley Ranches, Inc. (Frawley) appeals from a circuit court order denying intervention and a judgment granting a writ of mandamus. We affirm.

FACTS

[¶ 2.] In 1998, Frawley began the process of developing a planned unit development (PUD) in Eastern Lawrence County, South Dakota. At that time, the 1,000 acres required for this development were zoned A-l Agricultural under Lawrence County’s Zoning Ordinance. For that reason, Frawley took the appropriate steps to move this project forward.

[¶ 3.] On September 2, 1999, the Lawrence County Planning Commission (planning commission) heard Frawley’s rezoning requests as well as the request for a conditional use permit (CUP), PUD, and PUD overlay. At the meeting, the public was allowed to comment. The matter was then put to a vote and the rezoning requests, PUD, and PUD overlay were recommended for approval. The planning commission recommended a denial of the PUD developments planned for a portion of the suburban residential development. This matter then proceeded to the Lawrence County Commission (county commission) for approval.

[¶ 4.] On October 12, 1999, the county commission held a meeting to discuss Frawley’s proposal. At the meeting Fraw-ley made a presentation and the public again was allowed to comment on Fraw-ley’s plan. After this discussion, the county commission approved the rezoning requests. The CUP and PUD overlay were also approved contingent upon Lawrence County entering into a development agreement with Frawley. However, the county commission denied the PUD development for the suburban residential zoning district.

[¶ 5.] The county commission’s approval brought about a referendum petition challenging the ordinances and resolutions. The referendum petition, as drafted and circulated, stated that the qualified voters of Lawrence County rejected pursuant to law:

The Ordinances approving the Frawley Ranches, Inc., requests for change of zoning, passed by the Lawrence County Commissioners at its meeting on October 12,1999, are titled as follows: COZ # 190; COZ # 191; COZ # 192; COZ # 193; COZ # 194; COZ # 195; CUP # 254; PUD contingent upon the County entering into a Development Agreement with the developers.
The above-named Ordinances are set forth in full in the attached minutes of the Lawrence County Commissioners Meeting Dated October 12,1999.

After the required number of signatures was obtained, the petition was submitted to the Lawrence County Auditor (auditor) to authenticate the number and validity of signatures. After the authentication was completed, the auditor submitted the petition to the county commission so that the issue would be submitted to the Lawrence County electorate for a vote.

[¶ 6.] The county commission refused to schedule a vote. The commission contended the petitions were not in proper form. No other reason was provided for the refusal to schedule a vote. In response to the county commission’s refusal Petitioners applied to the circuit court for a writ of mandamus to compel the county commission to schedule and administer a vote.

[¶ 7.] On November 23, 1999, the circuit court issued an order to show cause, requiring the auditor and the county commission to explain why the writ of mandamus should not be issued. The circuit court scheduled a hearing date of December 13, 1999 for the order to show cause hearing. On November 29, 1999, Frawley filed a motion to intervene pursuant to SDCL 15-6-24(c). The date for -argument was set for December 13, 1999. On December 7, 1999, Frawley submitted a brief in opposition to the petition for writ of mandamus.

[¶ 8.] On December 18, 1999, a hearing was held before the circuit court. The court first heard arguments regarding the motion to intervene. Petitioners relied solely upon their written statement while Frawley argued orally before the circuit court. After considering the petitioner’s written statement and Frawley’s oral argument, the circuit court denied Frawley’s motion to intervene.

[¶ 9.] The circuit court denied Fraw-ley’s motion to intervene because the writ of mandamus that Petitioners sought did not seek relief from Frawley nor could the circuit court grant any type of relief directly to Frawley. The circuit court recognized that Frawley had an interest in the outcome of the vote, but had no interest in the validity of the petition. The circuit court did rule, however, that it would consider Frawley as amicus curiae. The circuit court subsequently allowed Frawley to argue on the merits at the hearing on the writ of mandamus. At the close of Frawley’s oral argument the attorney for the county commission stated, “I would like to have the Court acknowledge that the County joins in Frawley Ranches, Inc.’s, brief and in their oral arguments as have been presented today.” After hearing argument and considering briefs from Petitioners, Frawley, and the county commission, the circuit court issued the writ of mandamus.

[¶ 10.] The issuance of the writ of mandamus was based on the following rationale. First, the circuit court held that this issue was subject to the referendum process under the statutes of South Dakota. Second, the circuit court stated that in order for the petition to be held invalid, the burden was on the county commission to make a showing of confusion, corruption, or fraud, and none was presented. The circuit court stated any confusion that might exist could be cleared up by a properly prepared ballot. Third, the form of the petition substantially complied with the statutory requirements that govern the validity of the petition. For those reasons, the writ of mandamus was issued. The county commission did not appeal from this decision.

[¶ 11.] After the writ of mandamus was issued, the county commission scheduled and administered a vote of the Lawrence County electorate. The results of that election rejected the Frawley development in its entirety, including the rezoning requests. Frawley appeals, raising the following issues:

Did the circuit court err in denying Frawley’s motion to intervene in the mandamus proceedings?
Did the circuit court err in granting the writ of mandamus?

STANDARD OF REVIEW

[¶ 12.] In determining if a circuit court erred in denying a motion to intervene, “[t]his Court’s standard of review is whether the trial court abused its discretion in denying intervention as of right.” Weimer v. Ypparila, 504 N.W.2d 333, 335 (S.D.1993). Because a circuit court has discretion in granting a writ of mandamus, the appropriate standard on review is also abuse of discretion. Willoughby v. Grim, 1998 SD 68, ¶ 6, 581 N.W.2d 165, 167; See also Brown v. City of Yankton, 434 N.W.2d 376, 378 (S.D.1989). “[A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Almond, 511 N.W.2d 572, 574 (S.D.1994). In applying the abuse of discretion standard, “we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.” Id.

DECISION

1. Intervention

[¶ 13.] To intervene as a matter of right, Frawley must satisfy SDCL 15-6-24(a)(2), which states:

Upon timely application anyone shall be permitted to intervene in an action:
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

(emphasis added). Frawley argues that it had a direct interest in the transaction and the failure to allow it to intervene impaired its ability to protect that interest. Fraw-ley also argues that the failure of the county commission to appeal was prima facie evidence that the existing parties did not adequately represent Frawley’s interests.

[¶ 14.] This Court has long held that “[t]he purpose of intervention is to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted.” Jackson v. Board of County Commissioners Etc., 76 S.D. 495, 81 N.W.2d 686, 690 (S.D.1957); See also Steiner v. County of Marshall, 1997 SD 109, ¶ 40, 568 N.W.2d 627, 635 (Miller, C.J.coneurring) (emphasis added). The circuit court denied the motion to intervene because Petitioners sought no relief from Frawley, nor could the court grant any relief to Fraw-ley. The holding that Frawley had no direct interest in the writ of mandamus action is based upon a distinction between the validity of the petition (and therefore the issuance of the writ) and the resulting vote of the electorate.

[¶ 15.] The question of whether the circuit court should have allowed Frawley to intervene is a close one. Frawley clearly had an interest in the writ of mandamus proceeding because of the potential impact of a referendum election on its development. The circuit court was technically correct that it could grant no direct relief to Frawley. However, Frawley was effectively allowed to intervene by arguing the merits of the writ of mandamus issue at the circuit and appellate level. (See Issue 2, infra) The error, if any, in not allowing Frawley’s request for intervention has been rendered moot as Frawley was allowed “de facto” intervention. Frawley has suffered no harm as a result of the circuit court’s decision on the intervention issue.

2. Writ of Mandamus

[¶ 16.] The nature of a writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear:

Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.

Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242 (citations omitted) (emphasis added). SDCL 21-29-1 provides the circuit court authority to issue this writ:

The writ of mandamus may be issued by the Supreme and circuit Courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station ... (emphasis added).

A court may issue such a writ “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” SDCL 21-29-2.

[¶ 17.] In the case now before us, Petitioners sought a writ of mandamus to compel the auditor and county commission to perform their statutory duties including the following:

SDCL 7-18A-16:
A petition to refer an ordinance or resolution subject to referendum may be filed with the auditor within twenty days after its publication. The filing of such a petition shall require the submission of any such ordinance or resolution to a vote of the qualified voters of the county for its rejection or approval.

SDCL 7-18A-15.1 states, in part:

Any legislative decision of a board of county commissioners is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.

(emphasis added).

[¶ 18.] The county commission and Frawley did not dispute that these statutes create a legal duty to act. The dispute centered on the form of the petition. The county commission and Frawley argue that if the form of the petition does not meet the requirements set forth by statute, then no duty arises under either SDCL 7-18A-16 or 7-18A-15.1. With this in mind, and since the issue of a legal duty to act is not in dispute, this Court need only determine the petition’s validity. This Court is cognizant that SDCL 2-1-11 requires that initiative and referendum petitions “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.” For this reason “[w]e begin with a presumption that petitions which are circulated, signed, and filed are valid.” Larson v. Hazeltine, 1996 SD 100, ¶ 19, 552 N.W.2d 830, 835 (citations omitted).

[¶ 19.] This Court has previously held that the requirements governing a referendum petition are “substantial in character and not merely requirements of form.” Bjornson v. City of Aberdeen, 296 N.W.2d 896, 899 (S.D.1980) (citing Corbly v. City of Colton, 278 N.W.2d 459, 461 (S.D.1979)); See also O’Brien v. Pyle, 51 S.D. 385, 214 N.W. 623 (1927) (emphasis added). “These requirements, must, therefore, have been substantially complied with in order to render the petition valid.” Id. (emphasis added). Substantial compliance is defined as follows:

“Substantial compliance” with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

Larson, 1996 SD 100, ¶ 19, 552 N.W.2d at 835 (quoting Rans v. State, 390 N.W.2d 64, 66 (S.D.1986)). To determine whether the petition in this case is in substantial compliance this Court must examine the requirements that are expressly enumerated in the statutes that govern the petition’s validity.

[¶ 20.] The form of a referendum petition is set forth in SDCL ch. 2-1 and SDAR ch. 5:02:08. More specifically, SDCL 7-18A-17 and SDAR 5:02:08.19 govern the form of the petition. SDCL 7-18A-17 provides:

If the matter intended to be covered by a referendum petition is the whole of any ordinance or resolution, the petition shall contain the title of such ordinance or the subject of such resolution, and the date of its passage, but if only a portion of such ordinance or resolution is intended to be covered by the petition, such portion shall be set out at length.

SDAR 5:02:08:19 provides:

County Referendum Petition. The county referendum petition shall be in the following form:

County Referendum Petition

WE, THE UNDERSIGNED, qualified voters of County, in the State of South Dakota, petition that the following (ordinance) (resolution), as passed by the County Commissioners of that County, be submitted to the voters of the country for their approval or rejection pursuant to law.
(Here insert the title of the (ordinance) (resolution) and the date of its passage. However, if only a portion of the (ordinance) (resolution) is intended to be covered by the petition that petition shall be set out at length.)

(emphasis added).

[¶ 21.] SDAR 5:02:08:19 states that “[t]he county referendum petition shall be in the following form” and then provides the form. The petition in this case was copied directly from this rule. SDCL 7-18A-17 states that the “title of such ordinance or the subject of such resolution, and the date of its passage ... shall be set out at length.” The petition provides:

The Ordinances approving the Frawley Ranches, Inc., requests for change of zoning, passed by the Lawrence County Commissioners at its meeting on October 12,1999, are titled as follows:
COZ #190; COZ #191; COZ #192; COZ #193; COZ #194; COZ #195; CUP #254; PUD contingent upon the County entering into a Development Agreement with the developers.
The above-named Ordinances are set forth in full in the attached minutes of the Lawrence County Commissioners Meeting Dated October 12,1999.

The petition clearly sets forth the title, subject, and the date of passage of the ordinances and resolutions at issue. Those are the express conditions set forth in the governing statutes. In addition, the minutes of the county commission’s meeting are attached to the petition and are mentioned in the heading. Those minutes go into full detail and explain each of the ordinances and resolutions which are subject to referendum.

[¶ 22.] Frawley argues that the petition fails to substantially comply with statute for several reasons. First, the petition incorrectly refers to the PUD and CUP resolutions as ordinances. Second, the petition fails to set forth the titles of the ordinances to be referred. Third, the petition violates the single subject rule by failing to set forth each ordinance in a separate petition. Fourth, the attachment of the actual minutes from the October 12, 1999 county commission meeting is extraneous, beyond the four corners of the document. Further, there is no verification that each petition contained an attachment. Fifth, Frawley argues that even if the attachment of the minutes were proper, then the material preceding the minutes of the meeting and subsequent to it on the attachment is confusing.

[¶23.] SDCL 2-1-11 creates a presumption that petitions, which are circulated, signed and filed, are valid. This statute also mandates a liberal construction and emphasizes that the real intention of the voters should not be defeated by a mere technicality. Id. Regarding the first,. second, and fifth arguments set forth by Frawley, this Court believes that if it were to void the petition for these reasons it would be allowing a “mere technicality” to “defeat the real intent of the petitioners.” Corbly, 278 N.W.2d at 461. The third and fourth arguments, however, warrant closer scrutiny.

[¶ 24.] The “single subject” rule “minimize[s] the risk of voter confusion and deception” by requiring that a petition has only one subject. Amador Val. Joint Union H. Sch. Dist, Etc., 22 Cal.3d 208, 149 CaLRptr. 239, 583 P.2d 1281, 1291 (1978). This rule also has its foundation in both the South Dakota Constitution and statutory law. See SDCL 7-18A-3 (stating an ordinance shall embrace only one subject, which shall be expressed in its title); S.D. Const, art. Ill, § 21 (stating that no law shall embrace more than one subject, which shall be expressed in its title). The practical application of this rule requires a standard to determine what constitutes a “single subject.” Fraw-ley argues that the petition violated the single subject rule because it contained six separate ordinances, a CUP, and a PUD. It is not the number of items that is important; rather, it is the closeness of the relationship between the items on the petition.

[¶ 25.] Other courts have set forth a standard to make this determination:

[W]e are of the view that the [single subject] provision is not to receive a narrow or technical construction in all cases, but is to be construed liberally to uphold proper legislation, all parts which are reasonably germane. The provision was not enacted to provide means for the overthrow of legitimate legislation. Numerous provisions, having one general object, if fairly indicated in the title, may be united in one act. Provisions governing projects so related and interdependent as to constitute a single scheme may be properly included within a single act.

Amador, 149 Cal-Rptr. 239, 583 P.2d at 1290 (emphasis original; citations omitted); See also Legislature of the State of Cal. v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309, 1320-21 (1991) (stating that as long as the ordinances listed in the petition “are reasonably related to a common theme or purpose” this requirement is met). This Court agrees with the rationale set forth in Amador and hereby adopts the “reasonably germane” standard as the standard to determine whether the items on a petition constitute a “single subject.”

[¶ 26.] The referendum petition states in its title that it pertains to “[t]he ordinances approving Frawley Ranches, Inc., requests for change of zoning.” Directly following is a list of the ordinances listed separately. Despite the separate listing, it is evident from a reading of the petition that the separate listings all refer to the Frawley development. This Court will not apply the “reasonably germane” test in such a narrow or technical manner as to avoid the obvious plain meaning of this petition. Id. All ordinances separately listed refer to one thing, the Frawley development.

[¶ 27.] This Court is also aware of the circumstances and publicity surrounding the circulation and signing of the petition in the case now before us. As stated by the Court in Amador:

We may take judicial notice of the fact that the advance publicity and public discussion of article XIII A and its predicated effects were massive, [citation omitted]. The measure received as much public attention as any other ballot proposition in recent years. These circumstances would seem to dilute the risk of voter confusion or deception. ...

Amador, 149 CaLRptr. 239, 583 P.2d at 1291 (emphasis added). Here, the circuit court found no evidence of confusion, corruption, or fraud. Further, the court stated that a properly prepared ballot could clear up any confusion that might exist. The record in this case and the publicity that surrounded this petition supports that finding. Consequently, the petition satisfies the “reasonably germane” test and is not violative of the single subject rule.

[¶ 28.] Finally, Frawley urges us to find that attaching the county commission minutes to the petition causes its invalidity. The petition states that “[t]he above-named ordinances are set forth in full in the attached minutes of the Lawrence County Commissioners Meeting dated October 12, 1999.” Frawley argues that because the verification does not affirmatively set forth that these minutes were attached to each petition circulated, its inclusion voids the validity of the petition. In addition, Frawley contends that the inclusion of the minutes cannot cure that which is lacking in the petition ... “notice to the electorate of the specific legislative act they are called upon to approve or repeal.”

[¶ 29.] Since we have previously concluded the petition clearly sets forth the title, subject and date of passage of the ordinances and resolutions Petitioners sought to refer, there is no need to examine if the attachment seeks to cure that which is lacking in the petition. There is nothing lacking in the petition with regard to identification for the electorate of the specific legislative act they are called upon to approve or repeal.

[¶ 30.] The petition itself, without the attached minutes sufficiently establishes the title or purpose of the ordinances and resolutions and the date of passage as required by SDCL 7-18A-17. The circuit court specifically found no evidence of confusion, corruption or fraud. Applying the statutory presumption that petitions are valid and should be liberally construed, this Court finds the attachment does not affect the validity of the petition. The petition substantially complies with statutory requirements.

CONCLUSION

[¶ 31.] Since the writ of mandamus was properly issued, and Frawley was granted the opportunity to argue the merits of the writ of mandamus both before the circuit court and this Court, we find that the circuit court did not abuse its discretion.

[¶ 32.] We affirm the circuit court’s order and judgment.

[¶ 33.] MILLER, Chief Justice, and KONENKAMP and GILBERTSON, Justices, concur.

[¶ 34.] SABERS, Justice, concurs specially.

[¶ 35.] WILBUR, Circuit Judge, for AMUNDSON, Justice, disqualified.

SABERS, Justice

(concurring specially).

[¶ 36.] I write specially to point out that the trial court clearly erred in denying Frawley the right to intervene under SDCL 15-6-24(a)(2). Our intervention statute provides in relevant part:

Upon timely application anyone shall be permitted to intervene in an action: When the applicant claims an interest relating to the property or transaction
the disposition of the action may as a practical matter impair or impede his ability to protect that interest ... unless the applicant’s interest is adequately represented by existing parties,

(emphasis added). Frawley’s application to intervene was timely, it related to the property and the transaction, which interest was not adequately represented by the County, and the disposition would impair or impede his ability to protect his interest. On every count or factor, we are faced with the same rationale for allowing Frawley to intervene. Neither the parties nor the trial court really dispute this. Therefore, the trial court was not “technically correct” but incorrect.

[¶ 37.] Nevertheless, the trial court acted contrary to its own ruling and allowed Frawley to argue on the merits as if intervention was permitted. In fact, so did we. Therefore, the incorrect ruling was ignored by the trial court and Frawley can complain of no prejudice. “No harm, no foul.” I concur specially to keep the law on this point correct, not incorrect.

      . This petition required 675 signatures for submission to the Lawrence County Auditor. It received over 1,700 signatures.

      . The county commission and auditor refused to set the election claiming that the petitions had multiple ordinances on one petition and therefore were invalid.

      . The circuit court denied both Frawley's motion to intervene as a matter of right and the request for permissive intervention. The circuit court justified both decisions with the same rationale.

      . In the record, the writ of mandamus hearing transcript illustrates that both the county commission, and Frawley argued extensively on the merits.

      .Frawley's brief cites a Minnesota Court of Appeals case that sets forth the standard as follows: "Denial of intervention of right is a question of law that the reviewing Court must independently assess.” Jerome Faribo Farms
        v. County of Dodge, 464 N.W.2d 568, 570 (Minn.App.1990). No South Dakota precedent supports this proposition and the South Dakota case cited for the appropriate standard of review was decided after this Minnesota case.


source: Caselaw Access Project

author: LIEBERMAN, Circuit Judge.

license: Public Domain

text:
    2001 SD 52
    STATE of South Dakota, Plaintiff and Appellee, v. Mark L. BARTON, Defendant and Appellant.
    No. 21493.
    Supreme Court of South Dakota.
    Argued Nov. 30, 2000.
    Decided April 25, 2001.

      Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    William G. Taylor and Debra S. Sittig of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, Attorneys for defendant and appellant.
   LIEBERMAN, Circuit Judge.

[¶ 1.] Mark L. Barton (Barton) was found guilty of an overweight truck violation and fined a total of $11,425. We affirm.

FACTS

[¶ 2.] Barton is a twenty-five year old farmhand employed by Alan Aughenbaugh and Sons. Aughenbaugh and Sons is a large farming operation in the Iroquois, South Dakota area. It employs fifteen people, has a seed and fertilizer dealership and an electronic development business.

[¶ 3.] On April 1, 1999, motor carrier enforcement officer Harlin Wipf was eastbound on U.S. Highway 14 near mile marker 368 in the Iroquois vicinity. He noticed a tractor approaching him from approximately a quarter mile away. Shortly thereafter, he observed that the tractor was pulling a grain cart. The tractor was a Steiger four wheel drive and it was pulling a Kinze 1200 grain cart.

[¶ 4.] Officer Wipf turned around and followed the grain cart in order to determine if it was loaded or empty. He noted that the tires were squatted and that the cart did not bounce and he felt the cart was obviously loaded. He also determined that the cart had a single axle. Wipf was aware that SDCL 32-22-16 permitted only twenty thousand pounds on a single axle. Because of the size of the cart, he felt that the weight of the cart alone would constitute the majority of the allowed weight under the statute. Based on these observations, Wipf stopped the vehicle.

[¶ 5.] As Officer Wipf approached the tractor, he thumped the side of the cart three or four times with his fist. Upon reaching the cab of the tractor, he encountered the driver, Barton. When asked if the cart was loaded, Barton responded that he had a partial load. Barton unrolled the tarp covering the cart so Officer Wipf could look inside. Wipf testified that the cart was three-fourths or more full of wheat. Officer Wipf then asked Barton if he could weigh the cart and Barton agreed.

[¶ 6.] Officer Wipf weighed the cart using portable scales that are certified twice a year. A separate scale was placed under each of the four tires of the cart. The four separate numbers were added to arrive at 66,700 pounds. The amount of allowable weight for a single axle under SDCL 32-22-16 is 20,000 pounds. However, agricultural products are given a five percent weight tolerance so they are allowed 21,-000 pounds. The citation Wipf issued alleged that the cart was 45,700 pounds overweight.

[¶ 7.] At trial, Barton argued that the stop was improper and that he should be allowed to have a jury trial. Barton further argued that the cart had two axles instead of one axle as asserted by the state. The trial court held that, because he would not be incarcerated, Barton was not entitled to a jury trial, that there was reasonable suspicion for the stop and that the cart had one axle, not two. At the close of the trial, the trial court imposed a fine and costs of $128 on Barton plus an overweight penalty of twenty-five cents per pound for a total of $11,425.

STANDARD OF REVIEW

We recently clarified our standard of review. See State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488; State v. Himing, 1999 SD 53, ¶9, 592 N.W.2d 600, 603. Fact findings are reviewed for clear error, but ultimately, in reviewing decisions on motions to suppress for asserted constitutional violations our standard of review is de novo. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d at 488 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)).

State v. Morato, 2000 SD 149, ¶ 10, 619 N.W.2d 655, 659.

[¶ 8.] The proper construction of a statute is a question of law and will be reviewed de novo. Brim v. S.D. Bd. of Pardons and Paroles, 1997 SD 48, ¶ 4, 563 N.W.2d 812, 813. The primary purpose of statutory construction is to determine the intent of the law. See Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17. ‘[Statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.’” See id. (quoting U.S. West Communications, Inc. v. Public Utilities Comm’n., 505 N.W.2d 115, 122-123 (S.D.1993)). “ ‘But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result.’” Id.

ISSUE ONE

[¶ 9.] Whether the stop was constitutional.

[¶ 10.] Barton argues that the proper legal standard necessary to stop his vehicle was probable cause. Although Barton acknowledges that routine traffic stops require only reasonable suspicion, he argues that South Dakota requires a higher standard to stop and weigh a vehicle. In support of this proposition, he cites SDCL 32-22-50 which states:

Any peace officer having reason to believe that the weight of a vehicle and load is unlawful is authorized to weigh the same either by means of portable or stationary scales and may require that such vehicle be driven to the nearest scales in the event such scales are within five miles.

Barton argues the operative language is “reason to believe.” Barton cites several cases equating reason to believe with probable cause.

[¶ 11.] Barton’s argument is misplaced. First of all, the statute provides that “[a]ny peace officer having reason to believe that the weight of a vehicle and load is unlawful is authorized to weigh the same ...” SDCL 32-22-50 (emphasis added). Even if we assume that “reason to believe” as used in this statute does equal probable cause, the statute mentions nothing of the initial stop. It would simply apply to weighing the vehicle.

[¶ 12.] Moreover, even reasonable suspicion is not necessary to stop a vehicle in this context. In Ritter v. Johnson, 465 N.W.2d 196, 197 (S.D.1991), Darrell Johnson, a civilian employee of the Motor Carrier Division of the South Dakota Highway Patrol, stopped the vehicle driven by Rit-ter and instructed him to return to a weigh station for weighing. As Ritter attempted to turn his vehicle around, the truck rolled over injuring Ritter and damaging the truck. Ritter argued that since Johnson had no reason to believe he was in violation of any law that Johnson exceeded the scope of his authority under SDCL 32-22-50. Id. at 198 n. 1. In response to Ritter’s claim that he was deprived of his constitutional right to be free from unreasonable seizure, we noted:

Assuming without deciding that Johnson’s order to Ritter which prompted Ritter to try to turn his truck around constituted a “seizure” within the meaning of the Fourth Amendment, such a seizure is dearly not an unreasonable seizure in view of the “dosely regulated” nature of the trucking industry. The state has a “substantial interest” in enforcing its truck inspection regulatory scheme; warrantless inspections are “necessary to further the regulatory scheme”; and there is sufficient “certainty and regularity” in the application of the regulatory scheme to provide a “constitutionally adequate substitute for a warrant.”

Id. at 199-200 (quoting New York v. Burger, 482 U.S. 691, 702-703, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601 (1987)). As Barton was also stopped pursuant to SDCL 32-22-50, the same reasoning applies here. Thus, assuming, arguendo, that there was a seizure of Barton, it would not be unreasonable given the closely regulated nature of the trucking industry.

[¶ 13.] In addition to the closely regulated nature of the trucking industry, reasonable suspicion also existed to stop Barton. “ ‘The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and is implicated when a vehicle is stopped.’” State v. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d 468, 470 (citations omitted). “A police officer must have a reasonable suspicion to stop an automobile. This has been further interpreted to require the officer to have a ‘specific and articulable suspicion of a violation before a[n] [automobile] stop will be justified.’ ” Id. (quoting State v. Cuny, 534 N.W.2d 52, 53 (1995)). The requisite level of suspicion necessary to effectuate the stop of a vehicle is not equivalent to probable cause necessary for an arrest or a search warrant. See State v. Sleep, 1999 SD 19, ¶ 7, 590 N.W.2d 235, 238. “The factual basis needed to support a traffic stop is minimal.” Id.

[¶ 14.] The state has a substantial interest in protecting its highways from overweight violations. Stops of certain vehicles are necessary to ensure that the vehicles are within statutorily prescribed limits. Officer Wipf noted the sheer size of the grain cart and surmised that, even if it was only partially loaded, it would be in violation of the statute. Officer Wipf also observed that the tires were squatted and that the cart did not bounce. In his experience, an unloaded cart would not display these properties. Officer Wipf testified that he felt that the cart was obviously loaded.

[¶ 15.] Officer Wipf could not, however, determine whether the pictures of the grain cart admitted into evidence depicted a loaded or empty cart. Importantly, the pictures gave only a still shot of the cart from which no determination could be made on the bounce of the cart. Additionally, the picture of the loaded grain cart was taken in a field and the bottom of the tires could not be seen. Officer Wipf testified “[b]ecause it is sitting on dirt, you can’t tell if it is sunk in, it’s not like it’s sitting on a black — or cement road. You have that sitting in the field.” The trial court found that, at the time of the stop (the relevant time in question) Officer Wipf noticed that the tires were squatted and that there was no bounce and that this indicated to Wipf that the cart was loaded.

[¶ 16.] When testimony is considered, “the trial court is in the best position to assess the credibility of witnesses, weigh the conflicting evidence and observe the witnesses and the evidence first hand.” Geraets v. Halter, 1999 SD 11, ¶ 18, 588 N.W.2d 231, 234. Accordingly, we conclude that, under an objective standard, Officer Wipf was able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion. Thus, reasonable suspicion existed to stop the vehicle.

[¶ 17.] After the initial stop, Officer Wipf made further observations that prompted further detention and allowed him to weigh the vehicle.

The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.

State v. Ramirez, 535 N.W.2d 847, 849 (S.D.1995) (quoting State v. Watson, 165 Conn. 577, 345 A.2d 532, 537 (1973)). Barton told Officer Wipf that the cart was loaded and then rolled back the tarp to allow him to view the contents. Officer Wipf noted that the cart was three quarters or more filled with grain. Based on this observation, Officer Wipfs suspicion that the cart was overweight was buttressed.

[¶ 18.] We need not reach the issue of whether SDCL 32-22-50 requires probable cause for the weighing of vehicles. After Officer Wipf observed the grain, he asked Barton if he could weigh the cart and Barton consented. Since Barton consented to the weighing of the vehicle there is no need to discuss the issue of probable cause. It is firmly established that “consent given to law enforcement to conduct a search satisfies the Fourth Amendment search and seizure provisions and eliminates the necessity to obtain a warrant.” State v. Dreps, 1996 SD 142, ¶ 9, 558 N.W.2d 339, 341.

ISSUE TWO

[¶ 19.] Whether the state proved that Barton was overweight on a single axle.

[¶ 20.] Barton argues that the grain cart that he was pulling had two axles and not one as claimed by the state. Barton was charged under SDCL 32-22-16(1) which states:

No motor vehicle or combination of vehicles operating on a public highway may have a weight:
(1) In excess of twenty thousand pounds on any one axle, or in excess of the tire weight per inch of tire width prescribed by § 32-22-21, including all enforcement tolerances[J

[¶ 21.] The Kinze 1200 grain cart that Barton was pulling had four tires. The cart had two tires on each side which were positioned side by side, much the same as dual tires on a truck. The two tires on each side were connected to a single hub. There was no member connecting the hub on the right side of the cart to the hub on the left. Essentially, Barton is arguing that his cart had two axles because there was no shaft connecting the two tires on the left side with the two tires on the right side of the cart. The state argues that, under the applicable statutes, there did not actually have to be a shaft connecting the tires on either side in order to be considered a single axle vehicle.

[¶ 22.] The definition of “single axle” is found in SDCL 32-14-1(30):

“Single axle” or “One axle,” one or more consecutive axles whose centers may be included between two transverse vertical planes spaced forty inches or less apart, extending across the full width of the vehicle[.]

[¶ 23.] Barton cites Webster’s New Collegiate Dictionary (1928) as defining an “axle” as “a transverse bar or shaft connecting the opposite wheels of a car or carriage.” “Axle” is also defined as “[a] supporting shaft or member upon which a wheel or wheels revolve.” American Heritage Dictionary 146 (2d College ed 1985). From the above definitions, an axle can either extend across a vehicle or simply be a member on which a wheel revolves. However, the relevant inquiry in this case is how our legislature intended to define “axle” with regard to its statutory scheme.

[¶ 24.] On the cart in question, the tires were attached to a member and were allowed to revolve; thus the tires were attached to an axle. The plain language of SDCL 32-14-1(30) allows for one or more “consecutive axles” to still be considered a single axle. A “consecutive axle” is an axle that follows another axle along the length of the vehicle, not across or along the width of the vehicle.

[¶ 25.] The definition of “consecutive” as seen in SDCL 32-14-1(30) can be gleaned from an examination of other statutes enacted to work in harmony. SDCL 32-22-16.1 provides a formula for use with SDCL 32-22-16 and sheds some light on how the legislature intended the term “consecutive axles” to be applied. SDCL 32-22-16.1 states:

For the purposes of § 32-22-16 the maximum gross weight on a group of two or more consecutive axles allowable on a public highway shall be determined by the following formula:
W =500 [LN/(N-D + 12N + 36]
In applying the above formula, “W” equals the overall gross weight on any group of two or more consecutive axles to the nearest five hundred pounds, “L” equals the distance measured longitudinally to the nearest foot from the foremost axles to the rearmost axle in a group of two or more consecutive axles, and “N” equals the number of axles in group under consideration, (emphasis added).

In reading this statute, “consecutive axles” are axles that follow each other with regard to the length of the vehicle i.e. “from the foremost axles to the rearmost axles.”

[¶ 26.] In order for the formula embodied in SDCL 32-22-16.1 to work, the axles must be positioned one in front of the other along the length of the vehicle, or “consecutive axles.” If we were to follow Barton’s argument that the cart in question had two axles, one directly across the width of the vehicle from the other one, SDCL 32-22-16.1 would not work. Barton’s interpretation of two axles ends in an absurd result. Since these statutes were enacted to work together, we must presume that when the legislature had the term “consecutive axles” in mind, they meant that the axles would follow each other along the length of the vehicle. Thus, even if two axles are present along the length of a vehicle, they are considered one axle by statute if they are within forty inches of each other. See SDCL § 32-14-1(30) (1998).

[¶ 27.] The fact that one hub is located across the width of the vehicle from another hub does not change the fact that this vehicle is considered to have one axle as per statute. Again, looking at the definition, a “single axle” is described as “one or more consecutive axles whose centers may be included between two transverse vertical planes spaced forty inches or less apart, extending across the full width of the vehicle!.]” Id. (emphasis added). According to the Doctrine of the Last Antecedent, “ ‘[i]t is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.’ ” Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 617 (S.D.1994) (citations omitted). Thus, in examining the statute, it is not the axle, but the “transverse plane” that must extend across the width of the vehicle.

[¶ 28.] If it was the intent of the legislature that a shaft must physically connect the two hubs, it could have indicated that intention. It did not. Instead it chose to define “single axle” by using a “transverse plane.” The use of the term “transverse plane” and not a term indicating physical connection indicates that the legislature envisioned scenarios where a vehicle could be considered single axle per statute while not having a connecting member joining the adjacent hubs.

[¶29.] As applied to Barton’s grain cart, there was only one axle or hub along the length of the vehicle. Because there was only one hub present, it necessarily had to fall between two transverse vertical planes spaced forty inches or less that extend the width of the vehicle. No statute prescribes that a physical shaft connecting the left and right hubs must be present. As such, Barton’s cart falls under the statutory definition of a “single axle.”

ISSUE THREE

[¶ 30.] Whether the court erred in denying Barton’s motion for a jury trial.

[¶31.] Barton argues that the trial court erred in not granting his request for a jury trial. Barton recognizes that this Court has held that the civil penalty for overweight violations is not penal in nature. See State v. Feiok, 364 N.W.2d 536 (S.D.1985). However, Barton urges this Court to reconsider its position. Barton argues that increased fines along with social stigma and possible revocation of a person’s driver’s license warrant a jury trial in overweight cases.

[¶32.] We choose to stand by our previous rulings. “The Supreme Court of the United States decided long ago that the constitutional jury trial guarantee ‘in all criminal prosecutions’ extends only to the prosecution of serious crimes.” State v. Auen, 342 N.W.2d 236, 237 (S.D.1984) (citations omitted). A jury trial request may be denied where the offense carries no more than a six-month jail sentence and the court assures the defendant at the time of the request that no jail sentence will be imposed. See Id. at 238. In the case at bar, the maximum penalty permitted by statute was thirty days incarceration and Judge Martin assured Barton that he would not receive a jail sentence. Accordingly, the request for a jury trial was properly denied.

[¶ 33.] Regarding fines, in Feiok we held that overweight truck fines are civil in nature. Furthermore, considering the seven criteria set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), we held that the fines are not so punitive as to negate the legislature’s intention to impose a civil penalty. See Feiok, supra. Barton argues the increased fines since the time of Feiok, should cause us to reconsider our previous rulings.

[¶ 34.] In State v. Goffe, 41 Conn.App. 454, 676 A.2d 1377 (Conn.App.Ct.1996), the Connecticut Appellate Court considered whether or not a jury trial should be awarded in an overweight truck case very similar to the case at hand. The fine in Gojfe totaled $11,784 for overweight violations. In following reasoning almost identical to Feiok, the court held that, when there is no chance of imprisonment, there is no right to a jury trial even in light of a rather large fine. See id.

[¶ 35.] Additionally, Barton cites Landry v. Hoepfner, 818 F.2d 1169 (5th Cir.1987) for the proposition that collateral effects can turn a petty crime into a serious one for the purposes of a jury trial. Our case is much different. Landry was a DWI case and the court characterized it as a malum in se crime based on social and ethical judgments and several factors premised on Louisiana law. The court noted that an offender could be subject to:

1) a six month jail term, 2) a fíne of up to $ 500, 3) serious economic repercussions, such as an increase in insurance premiums, 4) public opprobrium, and 5) a sixty day suspension of his driver’s license. Additionally, a first offender may be ordered, as Landry was, to attend driver’s education classes, to attend a substance abuse clinic and to perform community service work.

Landry, 818 F.2d at 1177(citation omitted). We cannot say that an overweight violation is malum in se. Society’s view on excessive drinking and driving has evolved to a point where not only is it illegal but those who choose to drink excessively and drive are condemned morally. This is not the case with overweight violations. At this time, an overweight violation is not viewed as evil in itself. Furthermore, no due process violation is present in this case. As addressed in Feiok, “we conclude that defendant has been given all the process that is due him by reason of the procedural safeguards afforded to him under SDCL 32-22-16, the criminal statute.” Feiok, 364 N.W.2d at 541.

[¶ 36.] Under the facts of this case we hold that the trial court did not err in denying Barton’s request for a jury trial.

CONCLUSION

[¶ 37.] The trial court properly found that Officer Wipf was within his authority in stopping Barton. The vehicle had one axle according to our statutory definition and application. No jury trial was required.

[¶ 38.] Affirmed.

[¶ 39.] MILLER, Chief Justice, AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 40.] LIEBERMAN, Circuit Judge, for SABERS, Justice, disqualified.

      . Johnson argued, and the trial court found, “that he acted within the scope of SDCL 32-2-7, which authorizes motor carrier inspectors to check the permits and weigh the loads of 'motor vehicles and motor carriers over and upon the highways of this state.' ” Ritter, 465 N.W.2d at 198 n. 2.

      . Two consecutive axles spaced more than forty inches apart but less than ninety-six inches apart would be considered “tandem axles.” See SDCL 32-14-1(33).

      . The factors are:
      Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment— retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

        Feiok, 364 N.W.2d at 540 (quoting Kennedy, 372 U.S. at 168, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661).

      . A significant increase in fine schedules could foreseeably result in serious collateral effects, including penalties for non-payment. At some time, the fine may prove to be so devastating and onerous to a defendant's business and personal life that a jury trial would be the only means to appropriately safeguard a defendant's rights.


author: LARSON, Justice. SNELL, Justice

text:
    STATE of Iowa, Appellee, v. Nannette HORTON, Appellant.
    No. 99-1286.
    Supreme Court of Iowa.
    March 21, 2001.
    Rehearing Denied May 8, 2001.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Danielle Davis, Assistant County Attorney, for appellee.
   LARSON, Justice.

Nannette Horton appealed her conviction for possession of marijuana, Iowa Code section 124.401(5) (1997), claiming her trial counsel was ineffective for failing to raise a timely motion to suppress evidence. The court of appeals affirmed, concluding that because there was no merit in her claim of an illegal search, a timely motion to suppress would not have been successful. On further review, we agree with that conclusion and therefore affirm the decision of the court of appeals and the judgment of the district court.

I. Facts and Prior Proceedings.

Horton was a passenger in a compact pickup truck owned and operated by Timothy Wilkins. The pickup was stopped by Waterloo police officers for a license plate violation. Wilkins was unable to produce proof of insurance, so he was ordered out of the vehicle to remove his license plates. An officer asked Wilkins if he had any contraband in the vehicle, and Wilkins said there were some “roaches” (marijuana cigarettes) in the pickup ashtray. An officer then opened the driver-side door, looked into the cab of the pickup, and saw marijuana butts in plain view in the ashtray. Based on this, the officer ordered Horton out of the vehicle and asked her to empty her pockets (a police department practice for a Terry search when male officers search females). Horton pulled out the bag of marijuana that led to this prosecution. The driver was charged with possession of the marijuana in the ashtray.

II. Issues.

Horton assigns a single issue: the denial of her motion to suppress evidence of the unsmoked marijuana she pulled from her pocket. The district court denied the motion on the ground it was untimely under Iowa Rule of Criminal Procedure 10(2)(c) and (4) (motions to suppress to be filed “when the grounds therefor reasonably appear but no later than forty days after arraignment”).

Horton claims her lawyer provided ineffective assistance of counsel by failing to file a timely motion to suppress. If she can establish ineffective assistance of counsel, of course, she is not precluded from raising the motion-to-suppress issue on appeal. See State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). The State responds she was not denied effective assistance of counsel, and in any event, there would have been no merit in a motion to suppress because (1) Horton consented to the search when she emptied her pockets for the officer, and (2) the search was valid as incident to arrest.

III. Disposition.

We tend to agree with Horton that her compliance with the officer’s request for her to empty her pockets does not amount to a consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875 (1973) (“[W]hen ... the State attempts to justify a search on the basis of ... consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.”).

In response to the State’s search-inei-dent-to-arrest argument, Horton claims the marijuana roaches in the ashtray, presumably midway between the two seats, cannot be the basis for an arrest because “[t]here was no reasonable and particularized suspicion that [she] had violated the law until she emptied her pockets at the direction of law enforcement,” and “[t]he record indicates that she was not under arrest until after she obeyed [the officer’s] commands.”

Horton was not formally arrested until after the “pat down” search that revealed the bag of unsmoked marijuana. However, the timing of the formal arrest is not fatal to the search. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633, 645-46 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”); see also State v. Peterson, 515 N.W.2d 23, 25 (Iowa 1994). In Peterson we said “a search incident to an arrest need not be made after a formal arrest if it is substantially contemporaneous with it, provided probable cause for the arrest existed at the time of the search.” Peterson, 515 N.W.2d at 25. In this case, Horton’s formal arrest “followed quickly on the heels of the challenged search of [the defendant’s] person.” Rawlings, 448 U.S. at 111, 100 S.Ct. at 2564, 65 L.Ed.2d at 645-46.

Horton also argues that the marijuana butts in the ashtray could not provide a basis for her arrest because “[l]aw enforcement seems to have imputed [the driver’s] admission, and subsequent verification of the existence of marijuana in the truck ashtray, to Ms. Horton.” Further, she argues “the actions of the driver cannot be attributed to the passenger.” Finally, she quotes Illinois v. Wardlow for the proposition that “[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576 (2000) (holding, in a Terry stop case, that unprovoked flight, in addition to presence in a high-crime area, did constitute grounds for an investigatory stop).

However, the State does not rely on the driver’s admission nor does it attempt to “impute” the admission to this defendant. Rather, the State relies on Horton’s consent to the search and on probable cause (based on her proximity to the marijuana butts) to justify the search. We have already rejected the consent argument, so the sole question is whether the marijuana butts provided probable cause to arrest her.

Probable cause exists when the facts and circumstances within the arresting officer’s knowledge would warrant a person of reasonable caution to believe that an offense is being committed.

State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997). For probable cause

[t]he police need not have firm evidence which might lead to a conviction, or even to an indictment, but merely sufficient information to cause a reasonable man to believe that [the] defendant was involved in [a crime].

State v. Freeman, 297 N.W.2d 363, 366 (Iowa 1980). This is so because “[w]hat constitutes probable cause should be resolved on probabilities based on practical considerations, not on legal technicalities.” Id. at 365.

It has long been the law that probable cause to search a car does not justify the search of a passenger. See United States v. Di Re, 332 U.S. 581, 584-87, 68 S.Ct. 222, 223-25, 92 L.Ed. 210, 215-16 (1948). But that is not the case here. The State argues the evidence in the ashtray gave probable cause to arrest the defendant, totally independent of the grounds for arresting the driver or searching his vehicle. Here, the question is whether the presence of the spent marijuana in the pickup ashtray would be sufficient to “cause a reasonable man to believe” somebody was involved in the illegal use or possession of marijuana. Thus, the probable-cause question is boiled down to whether the marijuana roaches point to this defendant, the driver, both, or neither.

While it is clear probable cause need not rise to the level of proof required for conviction, or even indictment, it requires “more than bare suspicion.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949); see 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(e), at 60 (3d ed.1996) [hereinafter LaFave], Professor LaFave asks rhetorically:

[W]hat degree of probability [is required]? Specifically, is it necessary that the particular matter under consideration (i.e., that a crime has been committed, that a particular person has committed it, that evidence of crime is to be found in a particular place, or that a particular object is evidence of crime) be more probable than not, or will something short of this suffice?

LaFave § 3.2(e), at 60. With respect to the issue in the present case (i.e., whether the roaches pointed to Horton), LaFave states:

One way in which the problem arises is when the police are investigating a known crime and obtain information concerning the offender, which does not point exclusively to one particular individual, in which case the question is whether they may nonetheless arrest a person or perhaps two or more persons from the suspect class.

Id.

Addressing multiple-suspects problems, Professor LaFave notes:

There is commentary supporting the conclusion that probable cause does not mean more-probable-than-not, at least with respect to the identity of a particular individual as the probable offender. The Torts Restatement puts this situation:
A sees B and C bending over a dead man, D. B and C each accuse the other of murdering D. A is not sure that either B or C did the killing, but he has a reasonable suspicion that either B or C killed D. A is privileged to arrest either or both.

Id. at 64 (emphasis added) (quoting Restatement (Second) of Torts § 119 cmt. i (1965)). Professor LaFave continues:

Moreover, the arrest provisions in the Model Code of Pre-Arraignment Procedure permit arrest “without requiring that at the time of the arrest the guilt of the person to be arrested be more probable than not.” The draftsmen [of the Code] explain this as follows:
An arrest standard more stringent than reasonable cause would, to be sure, provide increased assurances against interferences by the police with the liberty of innocent persons. It is a premise of the Code, however, that society would and should be unwilling to pay the price in less efficient crime prevention and prosecution which this assurance would entail. If the “more probable than not” standard were adopted and taken seriously, many arrests made, for instance, on the basis of a victim’s or witness’s description would be illegal. The description which a victim gives of an assailant will very rarely justify an officer in believing that a person who appears to correspond to that description is more probably than not guilty of the assault. To approach this degree of certainty, the victim needs an opportunity to identify the suspect, perhaps even in the carefully controlled context of a lineup. If, however, such a description is not sufficient basis for arrest, an officer in the field must allow the suspect to disappear, and allow to disappear with him a possibility for solving the particular case and for imprisoning a dangerous offender. Present law does not require this conclusion, and the Code also would not.
There is much to be said for the model code position. If the function of arrest were merely to produce persons in court for purposes of the prosecution, then a more probable than not test would have considerable appeal. But there is also an investigative function which is served by the making of arrests.

LaFave § 3.2(e), at 64-65 (emphasis added) (quoting Model Code of Pre-Arraignment Procedure 14 (1975)).

Cases involving probable-cause issues under circumstances similar to this case have not required specific identity when two or more possible suspects are involved. For example, State v. Mitchell, 167 Wis.2d 672, 482 N.W.2d 364 (1992), involved two individuals in a car in which someone had been smoking marijuana. The court said:

Based on the presence of both the odor of marijuana and the smoke, Officer Smith had reason to believe that defendant, his passenger, or both had been smoking marijuana, and thus possessing, marijuana. The fact that there were two occupants in the vehicle is not fatal to a finding of probable cause to arrest defendant because probable cause does not mandate that it is more likely than not that the defendant committed the offense. We hold that, based on the marijuana odor and smoke inside the vehicle, Officer Smith had probable cause to arrest defendant and therefore the arrest was lawful.

Id. at 684, 482 N.W.2d at 368-69 (citation omitted).

In Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990), arresting officers could not initially establish which of two individuals had committed a crime. The court reversed an order that had suppressed the evidence, stating

we must take issue with the trial judge’s commentary on probable cause. We do not agree that the police could never have probable cause to arrest two persons if only one person has committed the crime. “While the law requires that probable cause have a fairly narrow focus, thereby precluding, for example, dragnet operations, we do not believe that the focus must in all situations narrow down to a single suspect....” Under some circumstances, there may be probable cause to believe that either of two suspects was the perpetrator of the criminal act.

Id. at 176, 575 A.2d at 578 (citation omitted).

In State v. Jordan, 36 Or.App. 45, 583 P.2d 1161 (1978), the Oregon court noted that, while officers may lawfully arrest more than one person, considerations of reasonableness limit the number of persons that may be arrested; a dragnet would not be allowed. In Jordan officers went to a house to serve an arrest warrant, but because the women there would not truthfully identify the subject to be served, the officers were not sure who they should arrest. The defendant argued they could not arrest more than one. The Oregon court said in this interesting observation:

The underlying assumption of defendant’s theory is that probable cause is finite and, if it is expended on one suspect, there cannot be enough left for another suspect. That theory is no more tenable than would be its opposite: that with probable cause, as with love, there is always plenty for everybody. The statement of principle most harmonious with the fundamental predicate of the Fourth Amendment, reasonableness, fits between those two extremes.

Id. at 48, 583 P.2d at 1163. The Oregon court continued:

Probable cause may justify the arrest of more than one person. If, for example, a policeman sees A and B bending over a dead man and each accuses the other of killing the victim, there is probable cause for the arrest of either or both and the arrest of A does not preclude the arrest of B. Similarly, if A is found one block north of a recently robbed bank and matches the description of the robber, the arrest of A does not preclude the subsequent arrest of B who also matches the description and is found one block south of the bank.

Id. at 49, 583 P.2d at 1163 (emphasis added).

In People v. Sutherland, 683 P.2d 1192 (Colo.1984), two occupants of a vehicle were involved in an accident, and both had alcohol on their breath. Each accused the other of being the driver. The court held the officers had probable cause to arrest both of them and obtain blood samples. Sutherland, 683 P.2d at 1196.

The officers in Horton’s case could have reasonably believed the marijuana had been smoked by Horton, her companion, both, or perhaps neither. Mere proximity to the marijuana butts will not support a conviction of constructive possession under our cases, see State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000), but the issue here is not whether there was sufficient evidence to convict, or even indict, Horton. The issue is whether the evidence “would warrant a person of reasonable caution to believe that an offense is being committed.” Ceron, 573 N.W.2d at 592. We believe a reasonably cautious person would be warranted in believing Horton was in possession of marijuana, and this satisfies the test for probable cause to arrest and search her. Close proximity to contraband, especially when it is in plain view, is sufficient to justify a suspect’s arrest, at least for further investigation. There was no merit in defendant’s motion to suppress, therefore she was not prejudiced by the untimely nature of the motion. Horton’s ineffeetive-assis-tance-of-counsel claim cannot, therefore, be sustained.

We affirm the decision of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except SNELL, J., who dissents.

SNELL, Justice

(dissenting).

I respectfully dissent.

I believe the evidence in this ease is insufficient to establish probable cause to arrest and search defendant Horton. It has long been the law that mere proximity to illegal drugs is not enough to sustain a conviction for possession of those drugs. A distinction is now made by the holding in this case. That holding establishes that proximity to contraband in plain view in a car satisfies the test for probable cause to arrest and search the car’s passenger.

The missing element to establish probable cause in this case is that there is not a nexus between Horton and the marijuana cigarettes in the car’s ashtray. Although as a passenger she was near the ashtray, there is no evidence that she had possession of the illegal drugs. Articulable suspicion is not enough to justify an arrest and conduct a lawful search. Here, the evidence at the scene as measured by a totality of the circumstances standard falls short of providing probable cause to arrest Horton. As such, the arrest and search violated her constitutional right under the Fourth Amendment to the United States Constitution to be free from an unreasonable search and seizure.

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause.... ” U.S. Const, amend. IV. “Evidence that is obtained in violation of this provision is inadmissible, no matter how relevant or probative the evidence may be.” State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995); accord Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). Because the general rule of the Fourth Amendment is that a warrantless search is per se unreasonable, the State has the burden by a preponderance of the evidence to show that an exception to that rule applies. State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997). The exception relied on by the State and the majority is “search incident to a lawful arrest.”

Our court has never directly addressed the issue of a search of a passenger upon finding contraband in the car when that is the sole reason to suspect the passenger of wrongdoing. We have, however, addressed the rights of passengers in other situations. See State v. Ceron, 573 N.W.2d 587, 593 (Iowa 1997); State v. Becker, 458 N.W.2d 604 (Iowa 1990). In Becker, we dealt with a similar traffic stop and subsequent passenger arrest and held the officer lacked articulable suspicion to order the passenger out of the vehicle. See Becker, 458 N.W.2d at 606-08. Because of this violation of the passenger’s Fourth Amendment right to be free from an unreasonable search, the subsequent search of the passenger was unlawful.

The vehicle was stopped for speeding. In this context, we remarked:

The fact that a [traffic violation has occurred] authorizes the officer to stop the vehicle in which the passenger is riding. The resulting intrusion on the passenger which flows from the initial stop is an unavoidable consequence of action justifiably taken against the driver. Further intrusion on the passenger is not justified, however, unless some articulable suspicion exists concerning a violation of law by that person, or unless further interference with the passenger is required to facilitate a lawful arrest of another person or lawful search of the vehicle.

Id. at 607.

In the case at bar, pursuant to Becker, the officers were justified in ordering Horton out of the vehicle to conduct a lawful search of the vehicle given the fact they had found marijuana in the vehicle, the ownership of which had not been determined. However, Becker’s holding is limited to the question of a police officer’s right to order a passenger out of the vehicle with nothing more than articulable suspicion or the need to conduct a lawful search. As our jurisprudence makes clear, more than articulable suspicion is needed to conduct a search of an individual. See, e.g., State v. Predka, 555 N.W.2d 202, 205-06 (Iowa 1996). As such, police needed probable cause to arrest and search Horton once outside the ear.

We have said:

Probable cause ⅛ not determined by observation of and reliance on any particular factor. Probable cause to make an arrest turns upon the circumstances of each case. The facts must give rise to something more than a mere suspicion, but they need not be so strong as to convince officers involved in the arrest of a suspect’s guilt. Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it.

State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990) (citations omitted); accord Predka, 555 N.W.2d at 205-06.

The facts on which the officers were operating were that Horton was a passenger in a car owned by another. They knew that she was sitting within reach of two used marijuana cigarettes in the car’s ashtray. Ownership of the marijuana cigarettes was not known by the officers. In this circumstance, the State argued that the doctrine of constructive possession is implicated.

We have previously recognized that there are three elements of constructive possession: (1) dominion and control of the illegal substance; (2) knowledge of its presence; and (3) knowledge of its nature. State v. Rudd, 454 N.W.2d 570, 571-72 (Iowa 1990) (citing State v. Reeves, 209 N.W.2d 18, 21-22 (Iowa 1973)). Recently, we addressed this doctrine in an analogous situation. See State v. Atkinson, 620 N.W.2d 1 (Iowa 2000). The car in which the defendant was a passenger was detained for a traffic violation. The officer placed the driver under arrest for driving with a suspended license. Upon search of the vehicle, the officer found a fanny pack containing methamphetamine under the driver’s seat. Although the driver at all times admitted the pack and the drugs belonged to him, the passenger was convicted of possession with intent to deliver the drugs. The passenger testified that she knew the pack probably contained drugs, but that she had no right to exercise control over it.

On appeal, we were persuaded that the passenger did not have constructive possession, even though

we ... assum[ed] the defendant knew the fanny pack was under the driver’s seat and that she knew it contained methamphetamine. For purposes of resolving the issue of control, we ... even assume[d] she knew it contained a substantial amount of methamphetamine .... The problem with the State’s case [was] it did not show that the defendant exercised dominion and control over the drugs. A defendant’s close physical proximity to contraband, as virtually all authorities agree, is insufficient in itself to constitute dominion and control.

Id. at 4 (emphasis added). In Atkinson, we reversed the conviction of the defendant because there was not substantial evidence to support the verdict. The reason the State’s evidence was not sufficient to meet this standard was because the State failed to prove that Atkinson had constructive possession of the drugs contained in the fanny pack under the driver’s seat. We held that the State failed to prove that Atkinson had dominion and control over the fanny pack and thus failed to prove constructive possession of the methamphetamine.

In the instant case, knowledge of the marijuana may be inferred because the cigarettes were in plain view. We may also infer that Horton knew the difference between a marijuana cigarette and a regular cigarette. Notwithstanding, the State failed to provide evidence that Horton had any dominion and control over the contraband. She neither owned the vehicle nor was the driver of it. Plain view of the marijuana cigarettes only allows us to infer knowledge. Proximity alone cannot equal dominion and control. Therefore, in such a scenario, the passenger does not have constructive possession of an illegal substance found within her reach.

The case at bar is significantly different from State v. Cerón, which signaled the quantum of evidence necessary to provide probable cause to search a passenger of an automobile. Cerón, 573 N.W.2d at 592-94. In Cerón, the defendant was a passenger in a car that was stopped for not having a windshield. The driver was arrested for this reason and for failing to produce a registration for the vehicle. The driver was removed from the vehicle, handcuffed and searched. Cerón, the passenger, was ordered from the car and patted down for weapons. None were found. After Cerón was patted down, the officer began searching the car and discovered cigarette papers between the console and passenger seat. Cerón was arrested for possession of drug paraphernalia. Pursuant to the arrest, Cerón was searched, and a baggie of methamphetamine was found in his pants.

On appeal, the issue was whether the police officer had probable cause to arrest him for possession of drug paraphernalia. Cerón argued that proximity of the cigarette rolling papers did not provide probable cause for his arrest. The issue involved constructive possession of the rolling papers because they were found in the car, not on Ceron’s person. Our analysis determined that considering all of the factors together would warrant a person of reasonable caution to believe that Cerón intended to use the cigarette rolling papers to inhale marijuana, a controlled substance, 4n violation of law. Those factors therefore constituted probable cause to support Ceron’s arrest for possession of drug paraphernalia (rolling papers). Thus, the lawful arrest validated the subsequent search that uncovered the methamphetamine.

What were those factors? The probable cause factors in Cerón were not alone the proximity to rolling papers but consisted of the following facts. First, the officer of fifteen years experience had worked six years on a drug investigation unit. Second, he recognized Cerón from prior contacts involving drug activity. The year before, he and another officer found a bag of methamphetamine and rolling papers on Cerón. Cerón had told the officer in the past that he used marijuana and was a member of the “King Boulevard Stoners,” a name describing the group’s use of marijuana. The officer knew that Cerón had a drug conviction and was involved in drug trafficking in the Sioux City area. Third, the officer saw that Cerón had red, watery eyes, indicating recent drug use. Fourth, he knew that cigarette rolling papers were used to roll marijuana cigarettes. And lastly, prior to stopping the car, he had seen Cerón moving about with his hands down below the dash, appearing to look back at the officer’s car and then to another officer’s car in an excited manner.

In Cerón, the issue of probable cause turned on Ceron’s constructive possession of drug paraphernalia, i.e., rolling papers. Probable cause of possession was shown by the multiple facts apparent at the scene and known to the officer, not just from the existence of cigarette rolling papers and their proximity to Cerón as a car passenger. The proximity of the rolling papers together with the other factors constituted the probable cause necessary to support Ceron’s arrest for constructive possession of drug paraphernalia and the subsequent lawful search.

The lack of evidence in the case at bar is also apparent when compared to the overwhelming evidence establishing probable cause in State v. Predka, 555 N.W.2d at 207. There, factors present were a strong odor of marijuana emanating from the car, defendant’s nervous state and heavy breathing, and the officer’s observation of ashes on the floor of the car near a screen, often used with a marijuana pipe, two zip-lock bags containing urine, and a box of plastic bags often used by drug dealers.

The factual scenarios in Cerón and Pred-ka, stand in stark contrast to the scene surrounding the arrest of Horton. In Cer-ón and Predka, the State produced evidence. of several factors to support a finding of a nexus between a suspected crime and the defendant. Probable cause did not depend for reasonableness on the ar-ticulable suspicion of the officer. Probable cause was clearly established by demonstrable evidence.

In contrast, the case at bar shows that there is no nexus between Horton and the dead roaches in the car’s ashtray. There is no evidence that Horton had smoked one or both of the cigarettes, that the truck cab smelled of marijuana smoke, that Horton’s eyes were bloodshot, that she was making excited movements, that police knew Horton to be a drug user, or of any other fact that might make it not just possible but probable that Horton was the owner or a user of the contraband. Constructive possession of the marijuana cigarettes by 'Horton was not established by probable cause. The mere fact that Horton was sitting within arm’s reach of the marijuana cigarettes cannot establish probable cause to arrest her. The State has not met its burden to show that the search incident to a lawful arrest exception to the warrant requirement applies.

Because no probable cause was present to arrest Horton, a timely motion to suppress the evidence of the illegal drugs, ie., a bag of marijuana, possessed by Horton would have been successful. Prejudice is apparent in such a scenario. State v. Rhiner, 352 N.W.2d 258, 261 (Iowa 1984); State v. Hrbek, 336 N.W.2d 431, 436 (Iowa 1983).

I believe that the Fourth Amendment assurance against unreasonable searches of passengers in automobiles has in this case been violated. I would hold that Horton’s constitutional rights under the Fourth Amendment have been violated, that counsel was ineffective for failing to raise this issue, reverse the conviction, and remand for a new trial.

      . This procedure is not challenged on appeal, and we express no opinion on the legality of it.


author: STREIT, P.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Michael Arnez McBRIDE, Defendant-Appellant.
    No. 99-1842.
    Court of Appeals of Iowa.
    Jan. 10, 2001.
    Linda Del Gallo, State Appellate Defender, and Robert P. Ranshau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, William E. Davis, County Attorney, and Julie A. Walton, Assistant County Attorney, for appellee.
    Considered by STREIT, P.J., and VOGEL and MILLER, JJ.
   STREIT, P.J.

Michael McBride’s two prior felony convictions increased the length of his prison sentence for delivery of drugs and assault. He appeals, claiming he received ineffective assistance of counsel because his trial counsel did not object to the trial court’s handling of his stipulation to his prior convictions. We affirm.

I. Background Facts & Proceedings.

McBride was arrested after he hit a man in the head with a hammer during a dispute over crack cocaine. McBride was charged with willful injury, assault while participating in a felony, delivery of a controlled substance, first-degree robbery, and extortion. Because McBride had two prior felony convictions, one of which was for a controlled substance offense, he was also alleged to be a habitual offender and subject to sentence enhancement for the delivery of a controlled substance charge.

After the close of evidence, the trial court asked McBride and his attorney whether McBride would stipulate to his prior convictions. McBride’s attorney answered, “In the event of a finding of guilt, Mr. McBride will stipulate to these previous offenses which [are] the basis for the enhancement.” The jury found McBride guilty of two counts of assault with intent to inflict serious injury, assault while participating in a felony, and delivery of a controlled substance. After the jury announced the verdicts, the court noted McBride had previously stipulated to his prior convictions; the court did not discuss McBride’s intention to stipulate to the convictions with McBride or his attorney at that time. McBride received an enhanced sentence because of his prior convictions.

McBride appeals. He claims his attorney was ineffective because he did not object to the trial court’s handling of his prior convictions.

II. Standard of Review.

We review claims of ineffective assistance of counsel de novo. State v. Howes, 525 N.W.2d 874, 876 (Iowa App.1994).

III. The Merits.

To prevail on a claim of ineffective assistance of counsel, a defendant must prove counsel failed to perform an essential duty and the failure prejudiced the defendant. State v. Dinkins, 553 N.W.2d 339, 341 (Iowa App.1996). Although we often preserve ineffectiveness claims for postconviction proceedings, we may decide such claims on direct appeal if the defendant fails to show one of the two aforementioned prongs. State v. Pierson, 554 N.W.2d 555, 562 (Iowa App.1996).

McBride argues his counsel, Russell Dircks, should have objected to the trial court’s finding McBride stipulated to his prior felony convictions. When the trial information alleges a defendant has one or more prior convictions that subject the defendant to an increased sentence, the defendant is entitled to an opportunity to admit or deny identity with the person previously convicted. Iowa R.Crim.P. 18(9). If the defendant denies identity, he is entitled to a jury trial on that issue. Id. Contrary to McBride’s assertions, the record shows he stipulated to the prior convictions alleged in the trial information:

THE COURT: Okay. So let’s make the record a little bit clearer.
MR. DIRCKS: Okay. In the event of a finding of guilt, Mr. McBride will stipulate to these previous offenses—
THE COURT: Stipulate to them?
MR. DIRCKS: — which is the basis for the enhancement.
THE COURT: Stipulate to the habitual offender and the second or subsequent offense regarding the drugs?
MR. DIRCKS: Yes.
THE COURT: So there will not be a need to have the jury decide those issues; is that correct? Is that what you are saying?
MR. DIRCKS: Yes.

Given this dialogue, McBride’s counsel had no duty to object the next day when the court stated McBride had previously stipulated to his prior convictions.

McBride also argues his counsel should have objected when the trial court did not engage in a discussion with McBride regarding his intention to stipulate to his prior convictions. According to McBride, this discussion should have been a “guilty plea type colloquy” like that outlined in Iowa Rule of Criminal Procedure 8(2)(b). He contends, in particular, the court should have informed him how stipulating to his prior convictions would affect his sentence. See Iowa R.Crim.P. 8(2)(b)(2).

Iowa Rule of Criminal Procedure 8(2)(b) only applies when a defendant wishes to plead guilty to a criminal offense. State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989). Here, the State alleged McBride had prior convictions, thus subjecting him to an increased sentence. When McBride stipulated to those convictions, he was not pleading guilty to a criminal offense. See id. (“An admission by a defendant of pri- or convictions cannot be said to be a plea of guilty to an habitual offender ‘charge,’ moreover, habitual offender statutes do not charge a separate offense.”). A rule 8(2)(b) colloquy was not required for McBride to stipulate to the fact of his prior convictions.

No Iowa authority calls for a different conclusion. The Iowa Supreme Court has stated “a defendant’s admission of prior felony convictions which provide the predicate for sentencing as an habitual offender is so closely analogous to a plea of guilty that it is appropriate to refer to [the] rules governing guilty pleas, specifically, rule 8(2)(b), to resolve the issue in this case.” Brady, 442 N.W.2d at 58 (emphasis added). In a subsequent case, the court stated in Brady it “recognized the fact that an admission of prior felony convictions ‘which provide the predicate for sentencing as an habitual offender is so closely analogous to a plea of guilty’ that [the] rules governing guilty pleas should be applied.” State v. Bumpus, 459 N.W.2d 619, 626 (Iowa 1990) (emphasis added). The Bum-pus court overstated the significance of Brady to the extent it interpreted that case as mandating trial courts to conduct rule 8(2)(b) colloquies whenever a defendant stipulates to his or her prior convictions. When determining the validity of such stipulations, rule 8(2)(b) may serve as a useful analytical tool for an appellate court. See State v. Oetken, 613 N.W.2d 679, 687-88 (Iowa 2000); Brady, 442 N.W.2d at 58-59. However, to reiterate, no authority requires a full rule 8(2)(b) colloquy when such stipulations are made.

Finding a rule 8(2)(b) colloquy was not required in this case does not automatically excuse the alleged failure to inform McBride of the implications of stipulating to his prior convictions. As cases like Brady and Bumpus confirm, trial courts have a duty to ensure that defendants knowingly and voluntarily stipulate to having prior convictions. Cf. Oetken, 613 N.W.2d at 688 (finding the trial court “discharged its duty to inform the defendant as to the ramifications of an habitual offender adjudication”). In order to knowingly stipulate, a defendant should have an adequate grasp of the implications of his or her stipulation.

Whether McBride had an adequate grasp of the implications of stipulating his prior convictions is unclear. The trial transcript shows McBride and his counsel may have had an off-the-record discussion concerning the relationship between McBride’s prior convictions and his probable sentence. The transcript also shows that, following this discussion, the court itself pursued the subject of habitual offenders and sentencing enhancements. But, it does not show anyone ever explicitly told McBride how stipulating to his prior convictions would affect his sentence. McBride’s assertion he was not “informed of the possible sentences which could be imposed should he be found to be a habitual offender” may be valid.

However, even if the trial court should have done more to ensure McBride knowingly and voluntarily stipulated to his prior convictions, its failure to do so did not prejudice McBride. The minutes of testimony reveal the State was prepared to offer the testimony of the Scott County Clerk of Court proving McBride had two prior felony convictions. McBride admitted to the convictions during his direct examination and again during his cross-examination. In his brief, he concedes the State was ready and able to prove his prior convictions. McBride does not deny he is a habitual offender with at least one prior controlled substance conviction— even a full rule 8(2)(b) colloquy would not have prevented him from receiving an enhanced sentence. See Bumpus, 459 N.W.2d at 626 (finding no prejudice resulted from the trial court’s failure to advise the defendant of the consequences of his admission to a prior conviction); State v. Vesey, 482 N.W.2d 165, 168 (Iowa App.1991) (same). This lack of prejudice excuses any shortcomings in the stipulation to the defendant’s prior convictions.

Similarly, any breach of duty by McBride’s counsel is also without consequence. McBride’s ineffective assistance of counsel claim is unfounded. We affirm the district court.

AFFIRMED.

      . Rule 8(2)(b) slates the following:

        Pleas of guilty. The court ... shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. [T]he court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
      (1) The nature of the charge to which the plea is offered.
      (2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.
      (3) That the defendant has the right to be tried by a jury....
      (4) That if the defendant pleads guilty there will not be a further trial of any kind....
      The court may ... waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor.
      Iowa R.Crim.P. 8(2)(b).

      . The relevant portions of the trial transcript read as follows:
      THE COURT: All right. The Defendant in the Trial Information is charged as a habitual offender and notice given of a second or subsequent offense under Chapter 124. The Defendant basically admitted both of those on direct examination, so are we hearing in the event of a guilty verdict on these, are we — is there any stipulation there?
      MR. DIRCKS: What he is asking is for sentencing purposes these prior offenses make a difference on what you are going to be—
      THE COURT: You can discuss off the record on that if you want to, Russ.
      MR DIRCKS: Okay.
      (At this time a discussion was held off the record.)
      THE COURT: This is a habitual offender. We're talking about the habitual offender and the second or subsequent offense sentencing enhancement. You don't have to decide this now.
      MR. DIRCKS: Right.
      THE COURT: But there’s two ways to address those two items. One is either you stipulate to it and admit it or — and this is assuming you are found guilty by the jury, or the same jury could determine hearing more evidence whether these two things have been proven by the State, habitual offender, second or subsequent offense on the drug charge.
      MR. DIRCKS: And what it is is all the State has to prove at that point is that you had previous felonies and that you have a previous delivery charge. Which essentially you have already admitted to on the stand.
      THE DEFENDANT: Yeah, yeah, okay. Leave it like it is, I guess.
      MR. DIRCKS: The issue is whether you would stipulate to it and say yes, I did have that previous record.
      THE DEFENDANT: Yeah.
      MR. DIRCKS: Yeah.