A jury convicted Tyrie Ball of possession with intent to deliver and failure to affix a drug tax stamp. See Iowa Code §§ 124.401(l)(a), 453B.12 (1997). He appeals from the judgment of conviction and sentence, contending that the district cоurt erred in denying his motion to suppress incriminating statements. Because we conclude there was no good cause for his untimely motion to suppress, we do not reach the merits of the court’s ruling denying the motion. We therefore affirm.
I. Police stopped the vehicle in which Ball was a passenger. One of the officers — Behning—saw Ball throw something underneath the car. Behning retrieved the object and noticed it had the appearance of crack cocaine. At that point, Behning handcuffed Ball and read him his Miranda rights. Ball responded, asking to speak to a lawyer. Another officer— Sikorski' — arrived on thе scene and also informed Ball of his Miranda rights.
At the station, Sikorski again read Ball his Miranda rights and obtained from Ball a written waiver to speak with him. Si-korski was apparently unaware that, at the scene, Ball had asked Behning to speak to a lawyer. During Sikorski’s intеrview with Ball, Ball made several incriminating statements.
Eventually, the State charged Ball with possession with intent to deliver crack cocaine and failure to affix a drug tax stamp. The minutes of testimony listed five officers — including Behning — as witnesses. The State included in the minutes reports from three of the officers. The State, however, neglected to include Behning’s report and neglected to mention in the minutes that Ball had asked to speak to an attorney following his arrest.
Apparently, it was not until cross-examination of Behning that Ball’s attorney had access to Behning’s report, which confirmed that Ball had asked Behning to speak to an attorney. Using the report, the defense counsel cross-examined Behn-ing:
Q. You’ve told us that after arresting Tyrie Ball, you put him in the squad car, too? A. He was placed in the squad car priоr to me arresting him.
Q. And you made sure you gave him his Miranda warnings, right? A. After arresting him. Yes.
Q. And he told you he wanted to talk to his lawyer, didn’t he? A. I believe so.
Q. On the scene he told you that, true? A. I believe so. Yes.
Q. Did you relate that to officer Si-korski later? A. No, I don’t think so.
Following Behning’s testimony аnd out of the presence of the jury, Ball moved to suppress his incriminating statements to Sikorski. In support of the motion, Ball
*604
relied on
Edwards v. Arizona,
The State resisted, contending the motion was untimely and there was no good cause shown for the delay.
The court responded:
THE COURT: I’m not going to rule one way or the other on that because I think that counsel’s correct; if they say that they were not aware that the defendant had ever asked for an attorney, I think that’s new, I think that’s a surprise, I think that would waive the timeliness argument.
The court then overruled the motion, reasoning that (1) Sikorski wаs unaware Ball had asked to speak to a lawyer, and (2) Sikorski had made a good-faith effort to inform Ball of his constitutional rights. The court admitted into evidence Ball’s incriminating statements to Sikorski. Later, the jury found Ball guilty of both charges.
On appeal, Ball contends the district court erred when it denied his motion to suppress his incriminating statements to officer Sikorski. Ball asserts the incriminating statements were obtained in violation of his Fifth and Fourteenth Amendment rights under the Federal Constitution.
The -State insists that, because Ball failed to file his motion to suppress before trial, he waived his right to raise the constitutional issue during trial. We agree.
II. Iowa Rule of Criminal Procedure 10(2), (3), and (4) pertinently provides:
2. Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be rаised before trial by motion. The following must be raised prior to trial:
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c. Motions to suppress evidence on the ground that it was illegally obtained ....
3. Effect of Failure to Raise Defenses or Objections. Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial under this rule shall constitute waiver thereof, but the court for good cause shown, may grant relief from such waiver.
4. Time of Filing. Motions hereunder, except motions in limine, shall be filed when the grounds therefor reasonably appear but no later than forty days after arraignment.
(Emphasis added.)
Here, the motion was one to suppress evidence on the ground that it was illegally obtained. Under thе rule, Ball was therefore required to file the motion no later than forty days after arraignment. His failure to file the motion in time constituted a waiver of his constitutional objection unless there was good cause shown to grant relief from such waiver. We have found a waiver even when the State did not resist the motion as untimely and unexcused.
See, e.g., State v. Terry,
The narrow question we must decide is whether the district court correctly rulеd there was good cause to grant Ball relief from the waiver under rule 10(3). Our review is for abuse of discretion.
Cf. State v. Hines,
The district court believed there was good cause to grant relief from the waiver because defense counsel learned for the first time on cross-examination of officer Behning that Ball had asked to speak tо a lawyer after he was advised of his Miranda rights. In short, the court felt that defense counsel was surprised by the revelation and that this surprise constituted good cause.
Essentially, by its ruling, the district court treated defense сounsel and Ball as two separate entities. In
State v. Cole,
we took the opposite approach under a similar scenario and imputed the knowledge of the defendant to that of defense cоunsel and treated them as one entity.
The defense counsel in Cole made an argument that good cause existed to allow the untimely motion to suppress:
“I want to say very frankly that this is the very first time that any of us knew that a search took place, and if the court would look at Officer Lumley’s minutes of his testimony, you will find, Your Honor, that there is not one word in there about there was a search.”
Cole,
there was enough information in the possession of defendant to inform her of the facts necessary to file a motion to suppress or at least to prompt her to make a further investigation. Although she might not have been made aware by these minutes of the legal basis for objection, she was clearly alerted to the factual basis for it....
Id. (emphasis added). Thus, in Cole, this court treated the defendant and defense counsel as one collective unit with respect to knowledge of factual information to support the motion.
Similarly, here, Ball’s attorney made the following argument to the district court:
First, I’d make an oral motion to suppress the statement that is coming in through Sikorski, and the basis for making that motion is the testimony of Officer Behning yesterday who said for thе first time and, quite frankly, it was reflected in his report for the first time we ever saw it, that on the scene after being given Miranda my client asked to speak to a lawyer.
Obviously, Ball knew that he had asked to speak to a lawyer. For this reason, we can safely infer that he had the necessary factual information to make a timely pretrial motion to suppress. We therefore conclude good cause to excuse the late filing was lacking. The district сourt abused its discretion in concluding otherwise.
III. Other courts have held that a defendant is charged with the responsibility to inform trial counsel of all pertinent facts that are sometimes uniquely within the defendant’s knowledge.
See, e.g., United States v. Wilson,
Rejecting the defendant’s contention that such cause existed, the federal appellate court in Wilson said:
Additionally, [the defendant] was personally aware of the agents’ actions leading to their seizing the evidencе.... [The defendant] was responsible for informing his counsel of the pertinent facts of the evening in question, and his defense counsel was responsible for vigorously investigating all of the details of what transpired. Consequently, during his pre-trial investigation of the case, defense counsel could have discovered whether the state officials had actually failed to knock and announce their identity and purpоse. Any “communications gap in that regard will not be recognized as good cause.”
Id.
(footnote omitted) (citation omitted);
accord United States v. Ricco,
IV. In all fairness to the defense counsel, Ball was less than cooperative. The record reveals counsеl tried to withdraw because Ball would not talk to him. In these circumstances, Ball is on shaky grounds when he now claims good cause. His own failure to cooperate contributed in large part to counsel’s failure to discover the grounds for the motion to suppress.
On the other hand, we give no kudos to the prosecution. The prosecution attached reports from three of five officers to the minutes of testimony, leaving out the most critical report, that of officer Behning. The prosecution also failed to mention in the minutes that Ball had asked to speak to an attorney following his arrest. Had thе prosecution either attached Behning’s report or mentioned in the minutes that Ball had asked to speak to an attorney it would have been obvious to the defense counsel that his client had grounds for a motion to suppress.
AFFIRMED.