Amended March 9, 2016 (Revised) State of Iowa v. Stephen Scott Prusha ( 2016 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 14–0656
    Filed February 12, 2016
    Amended March 9, 2016 (revised)
    STATE OF IOWA,
    Appellee,
    vs.
    STEPHEN SCOTT PRUSHA,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Marshall County, Kim M.
    Riley, District Associate Judge.
    A criminal defendant seeks further review of a court of appeals
    decision affirming his conviction for methamphetamine possession,
    contending police obtained evidence through a warrantless search that
    violated his constitutional right to be free from unreasonable searches.
    COURT OF APPEALS DECISION AND DISTRICT COURT JUDGMENT
    AFFIRMED.
    Darrell G. Meyer, Marshalltown, for appellant.
    Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney
    General, Jennifer Miller, County Attorney, and Ben Stansberry, Assistant
    County Attorney, for appellee.
    2
    Alan R. Ostergren, Muscatine, for amicus curiae Iowa County
    Attorneys Association.
    3
    HECHT, Justice.
    Stephen Prusha contends we should now decide the question we
    “reserved for another day” in State v. Pals, 
    805 N.W.2d 767
    , 782 (Iowa
    2011): whether article I, section 8 of the Iowa Constitution requires police
    to “advise an individual of his or her right to decline to consent to a
    search.” However, we decline Prusha’s invitation and continue to leave
    the consent advisory question open because we conclude Prusha did not
    raise the Iowa Constitution when he challenged the search before the
    district court. We therefore evaluate the search in this case solely under
    the Fourth Amendment, and we conclude Prusha voluntarily consented
    to the search under the totality of the circumstances presented here.
    I. Background Facts & Proceedings.
    Just after 1:10 a.m. on April 5, 2013, while on patrol in a rural
    area about four miles east of Marshalltown, Marshall County Deputy
    Sheriff John Shaver observed a pedestrian walking on the side of the
    road. Deputy Shaver found it unusual to see a pedestrian at that time of
    night in that area, so he pulled his police cruiser to the side of the road
    in front of the pedestrian.        He activated the vehicle’s rear amber
    directional lights but not its red and blue emergency lights.       Deputy
    Shaver later testified he pulled over because he “wanted to make sure
    [the pedestrian] was okay, make sure he hadn’t been in an automobile
    accident, . . . [gone] in the ditch, anything like that.”
    The pedestrian removed his billfold from his pocket to retrieve his
    identification. As Deputy Shaver exited the car and approached him, the
    pedestrian kept walking toward the cruiser and proactively handed
    Deputy Shaver his identification. The identification revealed Prusha was
    the pedestrian, and Deputy Shaver asked Prusha why he was walking
    along the road at such a late hour.         Prusha responded that he was
    4
    walking to his home in Marshalltown after having an argument with his
    girlfriend.    Deputy Shaver later testified Prusha appeared calm and
    responsive during their interaction and did not appear to be intoxicated
    or otherwise impaired.
    Deputy Shaver relayed Prusha’s license information to a dispatcher
    to check for outstanding warrants. There were no outstanding warrants,
    but the dispatcher advised Deputy Shaver that Prusha was “flagged”
    because he “was known to interfere and had a history of illegal drug
    use”—although he had no drug arrests or other criminal history involving
    drugs.    The dispatcher provided no additional information about why
    Prusha was flagged.
    Although he had confirmed that Prusha did not need assistance or
    emergency aid, Deputy Shaver acted on the information his dispatcher
    provided. Deputy Shaver asked Prusha if he possessed any weapons or
    drugs. Although Prusha denied possession of such items, Deputy Shaver
    asked Prusha if he would consent to a search of his person.                  Deputy
    Shaver did not tell Prusha that he could refuse consent and was free to
    go, but Deputy Shaver testified, and his report states, that Prusha
    consented to a search. 1
    Deputy Shaver asked Prusha to walk toward the patrol car and
    Prusha agreed to do so. However, Prusha then reached his hand into his
    pocket. Deputy Shaver quickly grabbed Prusha’s wrist to keep his hand
    inside the pocket because he thought Prusha might be retrieving a
    weapon.       Prusha said he would show Deputy Shaver what was in his
    pocket and pulled his hand out slowly to reveal a glass pipe containing a
    1Neither Deputy Shaver’s report nor his testimony details Prusha’s exact words
    or gestures responsive to the request for consent to search. Prusha did not testify at
    the suppression hearing.
    5
    powdery residue. Deputy Shaver confiscated the pipe, arrested Prusha,
    and handcuffed him.     Deputy Shaver then searched Prusha’s pockets
    and discovered a plastic bag containing about a half gram of
    methamphetamine.
    The State charged Prusha with possessing methamphetamine. See
    Iowa Code § 124.401(5) (2013).             Prusha moved to suppress any
    statements or confessions he gave and any evidence obtained through a
    warrantless search. The district court denied the motion. It concluded
    that under the “totality of the circumstances” approach established in
    Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 248–49, 
    93 S. Ct. 2041
    , 2059,
    
    36 L. Ed. 2d 854
    , 875 (1973), Prusha voluntarily consented to the
    search.
    After the district court denied his motion to suppress, Prusha
    agreed to a bench trial on the minutes of testimony. The court found
    Prusha guilty.      Prusha appealed his conviction, contending the
    warrantless search violated both the Federal and Iowa Constitutions. We
    transferred the case to the court of appeals. The court of appeals upheld
    the warrantless search and affirmed Prusha’s conviction. Prusha sought,
    and we granted, further review. As in all cases implicating constitutional
    protections, our review is de novo.
    II. Analysis.
    A. Error Preservation.         In his motion to suppress, Prusha
    asserted the State illegally obtained both statements and evidence from
    him.      He contended in one paragraph that the statements were
    “improperly obtained in violation of the 4th, 5th, and 6th Amendments to
    the United States Constitution . . . and in violation of the Constitution of
    the State of Iowa.”    He contended in a separate paragraph that any
    search violated “the statutes of the State of Iowa and . . . the
    6
    Constitution of the United States.”            We find no evidence in the record
    that counsel filed a written brief detailing authority supporting the
    suppression motion.
    At the suppression hearing, the attorneys spoke generally about
    the consent exception to the warrant requirement, without specifying
    whether they relied upon the warrant requirement under the Fourth
    Amendment, the Iowa Constitution, or both. The district court cited and
    discussed Pals, a case decided under article I, section 8, but applied a
    multifactor voluntariness test from a federal (Eighth Circuit) case and
    ultimately ruled only that the warrantless search “did not violate the
    Fourth Amendment.”
    Prusha forcefully argues in his appellate brief for a different
    standard under the Iowa Constitution, but we conclude this argument
    comes too late. 2      He recognized the Iowa Constitution as a possible
    independent basis for suppression, because he made that assertion with
    respect to statements, a separate issue—yet he did not assert it as a
    ground for suppressing the evidence obtained through the warrantless
    search. Thus, we conclude Prusha never apprised the district court that
    he believed the search violated article I, section 8. Cf. State v. Vance, 
    790 N.W.2d 775
    , 780 (Iowa 2010) (“In the district court . . . , Vance’s counsel
    failed to raise the legality of the stop under the Iowa Constitution. For
    this reason, we will limit our discussion regarding the legality of the stop
    to the Fourth Amendment.” (Citation omitted.)).               Although the district
    court discussed Pals in ruling on the motion to suppress, we cannot
    conclude confidently that by doing so, the district court adjudicated an
    2Prusha’s   appellate counsel did not represent him before the district court. We
    emphasize that Prusha’s failure to preserve error under article I, section 8 is not
    attributable to his appellate counsel.
    7
    issue Prusha never asked it to decide under article I, section 8.
    Accordingly, we only address Prusha’s Fourth Amendment claims. See
    
    id. B. Whether
    Deputy Shaver Seized Prusha.          “Law enforcement
    officers   do   not   violate   the   Fourth   Amendment’s   prohibition   of
    unreasonable seizures merely by approaching individuals on the street or
    in other public places and putting questions to them if they are willing to
    listen.” United States v. Drayton, 
    536 U.S. 194
    , 200, 
    122 S. Ct. 2105
    ,
    2110, 
    153 L. Ed. 2d 242
    , 251 (2002).           That is what happened here.
    Prusha only encountered Deputy Shaver, not a cadre of officers. Deputy
    Shaver did not activate his vehicle’s emergency lights and there is no
    indication in the record that he spoke to Prusha in an intimidating or
    commanding tone.       We conclude Deputy Shaver did not seize Prusha
    within the meaning of the Fourth Amendment by approaching him and
    asking a few questions. See 
    id. C. Consent
    Principles. In Schneckloth, the Supreme Court noted
    voluntariness “cannot be taken literally to mean a ‘knowing’ choice”
    under the Fourth Amendment. 
    Schneckloth, 412 U.S. at 224
    , 93 S. Ct.
    at 
    2046, 36 L. Ed. 2d at 861
    . Instead, the Court concluded voluntary
    consent “is a question of fact to be determined from the totality of all the
    circumstances,” and “knowledge of the right to refuse consent is one
    factor to be taken into account.” 
    Id. at 227,
    93 S. Ct. at 2048, 
    36 L. Ed. 2d
    at 863.      Other factors include “subtly coercive police questions, as
    well as the possibly vulnerable subjective state of the person who
    consents.” 
    Id. at 229,
    93 S. Ct. at 2049, 
    36 L. Ed. 2d
    at 864.
    D. Application of Schneckloth. Under Schneckloth, knowledge
    of the right to refuse “is not a prerequisite to establishing . . . voluntary
    consent; it is merely a factor in determining its voluntariness.” State v.
    8
    Folkens, 
    281 N.W.2d 1
    , 4 (Iowa 1979). Although it is not a per se ground
    for concluding consent was involuntary, the fact Deputy Shaver did not
    provide a consent advisory weighs against voluntariness here.
    The other factors commonly considered in a Schneckloth totality
    analysis, however, lead us to conclude Prusha’s consent was voluntary.
    Deputy Shaver did not seize Prusha under prevailing Fourth Amendment
    principles.   Similarly, Deputy Shaver did not assert any claim of
    authority to search or deceptively imply he was only after major drug
    users. Only he and Prusha were present. See State v. Lane, 
    726 N.W.2d 371
    , 380 (Iowa 2007) (noting, as one factor weighing in favor of
    voluntariness, that a single officer requested consent to search and
    explained a consent form while other officers waited outside the room ).
    Prusha’s personal characteristics also indicate his consent was
    voluntary. He was in his forties and there is no indication in the record
    that Prusha was impaired, either from a disability or from any
    substance, to such an extent as to be unable to understand Deputy
    Shaver’s questions.
    Finally, because the record does not establish how long the
    encounter lasted, we are unable to determine whether Deputy Shaver’s
    communication with the dispatcher and questions posed to Prusha
    unreasonably lengthened it.      Additionally, Prusha’s interaction with
    Deputy Shaver occurred in a public place, and his contemporaneous
    reaction was to facilitate the search. On balance, we conclude Prusha
    voluntarily consented to the search in this case.
    III. Conclusion.
    Prusha did not raise the Iowa Constitution as a basis for
    suppression until his appeal.    Therefore, he did not preserve error on
    article I, section 8, and we consider his suppression claims solely under
    9
    the Fourth Amendment.       Deputy Shaver did not provide a consent
    advisory, but the Fourth Amendment Schneckloth standard does not
    require one; instead, it is one factor in a totality analysis.   While that
    factor weighs against voluntariness here, the other circumstances
    indicate Prusha voluntarily consented to the search, and the search was
    therefore valid under the Fourth Amendment. Because the search was
    valid, the district court correctly denied Prusha’s motion to suppress.
    We affirm Prusha’s conviction.
    COURT     OF   APPEALS     DECISION      AND    DISTRICT     COURT
    JUDGMENT AFFIRMED.
    

Document Info

Docket Number: 14–0656

Filed Date: 2/12/2016

Precedential Status: Precedential

Modified Date: 2/28/2018