State Of Iowa Vs. Richard S. Wilkes ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 119 / 07–0824
Filed October 10, 2008
STATE OF IOWA,
Appellant,
vs.
RICHARD S. WILKES,
Appellee.
Appeal from the Iowa District Court for Cass County, Timothy
O’Grady, Judge.
State seeks further review of court of appeals decision suppressing
evidence as a result of a violation of the Fourth Amendment. DECISION
OF COURT OF APPEALS VACATED; DISTRICT COURT ORDER
REVERSED; AND CASE REMANDED.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant
Attorney General, and Daniel Feistner, County Attorney, for appellant.
Leslie G. Peters, Avoca, for appellee.
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APPEL, Justice.
In this case, we consider whether the district court properly
suppressed the results of sobriety and DataMaster tests obtained from a
defendant who was parked in a truck when he was approached by
uniformed police officers just before midnight. The court of appeals
affirmed the district court’s order of suppression. We now vacate the
decision of the court of appeals, reverse the order of the district court,
and remand the matter for further proceedings.
I. Factual Background and Prior Proceedings.
Atlantic Police Officer Paul Wood and a reserve officer were riding
in a patrol car on routine duty the night of January 12, 2007. Around
midnight, Wood spotted a white truck with its headlights on and its
engine running parked in Schildberg’s Quarry. Although the record does
not reveal the exact temperature, Wood testified that it was “pretty cold
outside.”
Wood pulled the patrol car into the quarry “to make sure
everything was okay with the driver.” While approaching the vehicle,
Wood did not activate his emergency lights or siren. He pulled his patrol
car to a distance of about ten or fifteen feet from the truck. Although the
quarry had only one entrance, the patrol car did not block the entrance
in any way.
After pulling up behind the truck, Wood and the reserve officer
exited the patrol car and approached the vehicle. Wood observed that
the truck was occupied by two people. Wood approached on the driver’s
side of the truck and the reserve officer walked toward the truck on the
passenger side but stayed behind the vehicle. When Wood arrived at the
driver’s window, he “basically asked what was going on” and “made sure
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everything was okay.” Through the opened driver’s window, Wood
smelled the strong odor of an alcoholic beverage coming from the driver.
Wood then obtained identification information from both of the
occupants and determined that the driver of the truck was Richard
Wilkes. Wood returned to his patrol car to determine whether Wilkes
had a valid driver’s license and whether there were any outstanding
warrants. After determining the status of Wilkes’ driver’s license and the
lack of outstanding warrants, Wood walked back to the truck and
requested that Wilkes step out of the vehicle. Wilkes complied and
admitted to having consumed a glass of wine. Wood then administered
the horizontal gaze nystagmus test, the walk-and-turn test, and the one-
legged-stand test.
Wood concluded based on these field tests that there was a strong
likelihood that Wilkes’ blood-alcohol level was over the legal limit.
Thereafter, Wood administered a preliminary breath test, which showed
that Wilkes was intoxicated. At this point, Wood arrested Wilkes for
operating a motor vehicle while intoxicated in violation of Iowa Code
section 321J.2(1) (2005). A DataMaster test was later administered,
showing Wilkes’ blood alcohol level to be 0.123.
After Wilkes was charged with driving while intoxicated, he filed a
motion to suppress, claiming that the stop by Wood amounted to an
illegal seizure and that the evidence subsequently obtained should be
excluded at trial. After a hearing, the district court concluded that
Wilkes had been seized within the meaning of the Fourth Amendment.
The district court further concluded that the seizure was not justified
because Wood did not have a reasonable and articulable suspicion of
criminal activity and because there was no evidence to suggest that
Wood was conducting a bona fide community caretaking activity.
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The State filed an application for a stay of proceedings and
discretionary review, which we granted. The case was transferred to the
court of appeals, which affirmed the district court. We granted the
State’s application for further review.
II. Standard of Review.
Because the motion to suppress was based on a claim of
deprivation of the defendant’s constitutional right against unlawful
seizures, this court’s review is de novo. State v. Breuer, 577 N.W.2d 41,
44 (Iowa 1998).
III. Discussion.
A. Introduction. This case presents two potential issues of
constitutional law. The first constitutional question is whether Wood
and the reserve officer in this case “seized” Wilkes under the Fourth
Amendment prior to reasonably suspecting Wilkes was driving a motor
vehicle while intoxicated. See, e.g., United States v. Drayton, 536 U.S.
194, 210, 122 S. Ct. 2105, 2111, 153 L. Ed. 2d 242, 257 (2002). If no
such seizure occurred, the motion to suppress is without merit. To the
extent Wilkes was subject to seizure after Wood had reasonable
suspicion that Wilkes was driving while intoxicated, such evidence is
admissible. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20
L. Ed. 2d 889, 906 (1968).
In the event evidence was obtained pursuant to a seizure prior to
reasonable suspicion that a criminal offense may have been committed,
the police may have acted properly if the seizure amounted to a
“community caretaking activity.” Such seizures have been held not to
violate the Fourth Amendment if the interest in community welfare
outweighs any invasion of privacy that accompanies the seizure. State v.
Carlson, 548 N.W.2d 138, 142 (Iowa 1996). If, however, the conduct of
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Wood and the reserve officer amounted to a seizure and their actions do
not amount to a valid community welfare check, a violation of the Fourth
Amendment is present and the evidence obtained pursuant to the
unlawful conduct must be suppressed. State v. Crawford, 659 N.W.2d
537, 541 (Iowa 2003).
Wilkes also seeks to exclude evidence on nonconstitutional
grounds. He asserts that because the field sobriety tests were improperly
administered, implied consent was improperly invoked for want of
probable cause. On appeal, he also asserts that the results of the
DataMaster test should be suppressed because he had chewing tobacco
in his mouth when the test was administered.
B. Constitutional Issues. The Fourth Amendment to the United
States Constitution provides that “[t]he 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. “The Fourth Amendment, which is made
applicable to the states through the Fourteenth Amendment, gives
citizens broad protection against warrantless searches and seizures.”
Crawford, 659 N.W.2d at 541. The purpose of the Fourth Amendment is
to protect “the privacy and security of individuals against arbitrary
intrusion by government officials.” State v. Brecunier, 564 N.W.2d 365,
367 (Iowa 1997).1
1Article I, section 8 of the Iowa Constitution also contains a right to be free from
unreasonable searches and seizures. Iowa Const. art. I, § 8. We zealously guard our
ability to interpret the Iowa Constitution differently from authoritative interpretations of
the United States Constitution by the United States Supreme Court. In re Detention of
Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). On appeal, however, Wilkes makes no
argument that the Iowa Constitution should be interpreted differently than the United
States Constitution. Therefore, consistent with our prior cases, we for prudential
reasons assume for the purposes of this appeal that the United States Constitution and
the Iowa Constitution should be interpreted in an identical fashion. Id.
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In order for the Fourth Amendment to apply in this case, there
must first be a “seizure.” The United States Supreme Court has not
offered a comprehensive definition of the term. The Supreme Court,
however, emphasized almost forty years ago that not all personal
intercourse between the police and citizens involve seizures. Terry, 392
U.S. at 20 n.16, 88 S. Ct. at 1879 n.16, 20 L. Ed. 2d at 905 n.16.
According to the Supreme Court, “Only when the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id.
Whether a “seizure” occurred is determined by the totality of the
circumstances. Drayton, 536 U.S. at 207, 122 S. Ct. at 2113, 153
L. Ed. 2d at 255. Factors that might suggest a seizure include
the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be
compelled.
United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877,
64 L. Ed. 2d 497, 509 (1980). In contrast, “otherwise inoffensive contact
between a member of the public and the police cannot, as a matter of
law, amount to a seizure of that person.” Id. at 555, 100 S. Ct. at 1877,
64 L. Ed. 2d at 509–10.
The Supreme Court has on occasion stated that a seizure does not
occur if “a reasonable person would feel free ‘to disregard the police and
go about his business. . . .’ ” Florida v. Bostick, 501 U.S. 429, 434, 111
S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 398 (1991) (quoting California v.
Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690,
698 (1991)). Nonetheless, the Supreme Court has recognized that many
persons respond to police requests even if they are free to leave. The fact
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that a citizen chooses to respond, however, does not convert an
encounter into a seizure. According to the Supreme Court, “While most
citizens will respond to a police request, the fact that people do so, and
do so without being told they are free not to respond, hardly eliminates
the consensual nature of the response.” INS v. Delgado, 466 U.S. 210,
216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984). It thus
appears that objective indices of police coercion must be present to
convert an encounter between police and citizens into a seizure. State v.
Reinders, 690 N.W.2d 78, 82 (Iowa 2004).
The element of coercion is not established by ordinary indicia of
police authority. The mere showing of a badge by a police officer does
not create a seizure. Florida v. Rodriguez, 469 U.S. 1, 5–6, 105 S. Ct.
308, 311, 83 L. Ed. 2d 165, 170–71 (1984) (per curiam) (holding no
seizure where officer approaches defendant in airport, shows him badge,
and asks questions); Delgado, 466 U.S. at 212, 104 S. Ct. at 1760, 80
L. Ed. 2d at 252–53 (finding that immigration agents wearing badges and
questioning workers did not constitute a seizure). The fact that an officer
is in uniform or visibly armed “should have little weight in the analysis.”
Drayton, 536 U.S. at 204, 122 S. Ct. at 2112, 153 L. Ed. 2d at 254.
This court has applied the teachings of the Supreme Court’s
seizure cases to situations where police officers approach parked
vehicles. State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981). Other state
and federal courts have taken a similar approach. See United States v.
Packer, 15 F.3d 654, 657 (7th Cir. 1994); United States v. Pavelski, 789
F.2d 485, 488–89 (7th Cir. 1986); Riley v. State, 892 A.2d 370, 374 (Del.
2006).
In Harlan, we considered whether a seizure occurred for Fourth
Amendment purposes when a police officer discovered signs of
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intoxication after he approached the driver of a parked vehicle in the
early morning hours. Harlan, 301 N.W.2d at 720. The police officer
followed the vehicle for several blocks along “a circuitous route.” Id. at
719. The officer did not have reason to suspect that criminal activity was
afoot. Id. Eventually, the driver returned to the street outside the house
where the officer had first observed him and parked the vehicle leaving
the engine running. Id. The officer pulled over and approached the
driver. Id. When the officer shined his flashlight into the vehicle, he
observed that the driver’s eyes were watery and bloodshot. Id. The
officer also smelled alcohol coming from the driver’s person. Id. The
officer subsequently requested his driver’s license, asked him to perform
field sobriety tests, and arrested him for operating a motor vehicle while
intoxicated. Id.
We determined under the facts in Harlan that no seizure occurred
prior to the point at which the police officer had reasonable suspicion to
believe that Harlan was driving his vehicle while intoxicated. Id. at 720.
Citing Terry and Mendenhall, we emphasized that the facts showed there
was no threat of physical force, no use of language, no use of sirens, and
no forced stop. Id. We noted that the officer, like any other citizen, had
a right to look into the car. Id. As a result, no seizure occurred when the
officer merely approached Harlan’s parked vehicle. Id.
We find that this case is similar in many respects to Harlan. While
the court of appeals emphasized that Wood was in uniform and shined
headlights on the truck, these facts are not dispositive on the seizure
issue. While the fact that Wood was in uniform is not entirely irrelevant,
the United States Supreme Court has downplayed the significance of a
police uniform as a factor in determining whether an encounter is a
seizure. Drayton, 536 U.S. at 204, 122 S. Ct. at 2112, 153 L. Ed. 2d at
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254. Further, the use of ordinary headlights at night is simply not
coercive in the same manner as the activation of emergency lights which
invoke police authority and imply a police command to stop and remain.
See State v. Calhoun, 792 P.2d 1223, 1225 (Or. Ct. App. 1990) (noting
that the use of headlights and spotlight did not transform the encounter
into a seizure).
While it is true that in this case two officers were involved in the
encounter, the reserve officer remained behind the vehicle and did not
use physical force or show authority in any manner. The involvement of
two officers in this fashion was certainly less threatening than in
Delgado, a case in which the Supreme Court held that no seizure
occurred where immigration officers stood at the exits of a building while
colleagues questioned employees. Delgado, 466 U.S. at 218, 104 S. Ct.
at 1763–64, 80 L. Ed. 2d at 256.
The fact that Wood parked behind the vehicle driven by Wilkes also
does not convert the encounter into a seizure. A number of the cases
involving encounters between police officers and citizens in parked
vehicles have considered the location of the patrol car(s) in relation to the
parked vehicle as a factor in determining whether a seizure occurred
under the Fourth Amendment. For example, in People v. Cascio, 932
P.2d 1381, 1386–87 (Colo. 1997), the court concluded that if the police
car wholly blocks the defendant’s ability to leave, then an encounter
cannot be considered consensual, but where egress was only slightly
restricted, with approximately ten to twenty feet between the two
vehicles, the positioning of the vehicles does not create a detention.
Here, the ability of Wilkes to drive away was not substantially
impaired. In fact, Wilkes testified at the suppression hearing that there
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were at least two ways for him to turn his truck around and leave the
quarry, had he chosen to do so.
We conclude under all the facts and circumstances that no seizure
occurred under the Fourth Amendment when Wood approached the
vehicle. Simply put, neither of the officers displayed coercive or
authoritative behavior to transform this encounter into a seizure for
Fourth Amendment purposes. Prior to smelling alcohol on Wilkes’
person, the stop was consensual. Once Wood smelled the alcohol, he
had a reasonable and articulable suspicion of criminal activity to detain
Wilkes and administer sobriety tests. See Mark A. Bross, The Impact of
Ornelas v. United States on the Appellate Standard of Review for Seizure
Under the Fourth Amendment, 9 U. Pa. J. Const. L. 871, 881 (2007)
(noting that a voluntary encounter may turn into seizure supported by
reasonable suspicion or probable cause). As a result of our
determination that a seizure did not occur until after Wood had a
reasonable suspicion sufficient to restrain Wilkes, it is not necessary to
consider whether the encounter was within the “community caretaking”
exception to the Fourth Amendment.
C. Nonconstitutional Challenges. In the alternative, Wilkes on
appeal challenges the veracity of DataMaster results on the ground that
his use of chewing tobacco may have affected the result. This assertion,
however, was not raised in the district court and is thus not preserved on
appeal. State v. Boer, 224 N.W.2d 217, 221 (Iowa 1974).
Wilkes also claims the State lacked probable cause to invoke
implied consent pursuant to Iowa Code section 321J.6. To support his
argument, Wilkes argues that Wood improperly administered the walk-
and-turn and one-legged-stand tests. Even if true, any irregularity with
respect to the walk-and-turn and one-legged-stand tests has no legal
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significance. Wood smelled the strong odor of alcohol on Wilkes’ breath,
obtained a concession that he had been drinking, and performed the
horizontal gaze nystagmus test. Based on this information, Wood had an
articulable suspicion to administer a preliminary breath test (PBT)
pursuant to Iowa Code section 321J.5(1)(a). The results of the PBT
constituted probable cause to invoke implied consent. Iowa Code
§ 321J.6(1)(d); State v. Horton, 625 N.W.2d 362, 364 (Iowa 2001).
IV. Conclusion.
For the above reasons, the opinion of the court of appeals is
vacated, the order of the district court suppressing the evidence is
reversed, and the case remanded to the district court for further
proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT ORDER REVERSED; CASE REMANDED.
All justices concur except Baker, J., who takes no part.