State of Iowa v. Kari Lee Fogg ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0483
Filed May 1, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KARI LEE FOGG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Paul G. Crawford
(motion to suppress) and Stephen A. Owen (trial), District Associate Judges.
Kari Fogg appeals her conviction of operating while intoxicated.
AFFIRMED.
Mark C. Smith, State Appellate Defender (until withdrawal), and Melinda J.
Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
Kari Fogg appeals her conviction of operating while intoxicated (OWI), first
offense. She contends the district court erred in denying her motion to suppress
evidence on the basis of an allegedly unreasonable seizure. She also argues her
counsel rendered ineffective assistance in failing to object to alleged prosecutorial
error in the State’s closing argument.
I. Background Facts and Proceedings
Shortly before 10:00 p.m. on Tuesday, October 10, 2017, Officer Michael
Frazier of the Boone Police Department was on routine patrol when he observed
a silver Hyundai “driving really slow” at “ten miles per hour” through a residential
area. Frazier circled the block and observed the vehicle’s movement for another
three or four minutes. The vehicle then turned north into a narrow alley located
between the main streets. According to Frazier’s testimony, the alley is not used
often. The alley is abutted by houses, outbuildings, and driveways. Frazier
paralleled the vehicle on one of the side streets and then waited for the vehicle to
exit the alley at the end of the block. After waiting at the end of the block for roughly
one minute, Frazier noticed the car had stopped in the middle of the alley and
parked. When asked during the suppression hearing whether he was suspicious
a crime was being committed, Frazier testified:
I wasn’t sure. A lot of burglaries happen on that side of town,
so I wasn’t sure if someone was getting dropped off to do vehicle
burglaries or garage burglaries in the area. It was just all around
suspicious. Just wanted to make sure they were okay.
....
I really don’t know. I mean it was just odd that someone would
be parked right there at that time of night.
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On cross-examination, Frazier conceded he was not under any belief that a crime
had been committed. He elaborated:
I thought it was a possibility something was going on or it was
somebody that was broken down in the alley. I didn’t know.
....
I was suspicious of her driving behavior before and then
where she was parked at at the time or where she had stopped at.
At trial, Frazier testified there was an increased rate of burglaries in the area over
the summer months and Fogg’s behavior on the night in question caused him
concern “that someone was maybe cruising the alleys casing some garages.”
Frazier turned east on the street north of the alley then “turned south into
the alley and pulled in front of the vehicle to get out to see what was going on.”
Frazier observed the vehicle was still running, its headlights were illuminated, and
it was occupied by a woman, later identified as Fogg. Frazier, without activating
his emergency lights or siren or drawing his sidearm, parked his cruiser twenty to
thirty feet in front of the Hyundai and approached. Because of the way the vehicles
were situated, Fogg’s only avenues for leaving would have been to back out of the
alley or drive around Frazier’s cruiser, the latter of which would have required Fogg
to drive through yards along the alley. Fogg opened her car door, and Frazier
questioned Fogg “whether everything was okay” and “what was going on,” upon
which Fogg advised “she lived in the area and she was checking to see if the alley
was crooked or something to that effect, that she had to report to the city.” Frazier
detected a strong odor of alcohol emanating from Fogg’s vehicle. Fogg was
ultimately arrested and charged with OWI.
Fogg filed a pretrial motion to suppress arguing she was seized absent
reasonable suspicion or probable cause in violation of her constitutional rights
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under the state and federal constitutions. Following a hearing, the district court
denied the motion, concluding Fogg was not seized in the constitutional sense or,
alternatively, the seizure was supported by reasonable suspicion. A jury ultimately
found Fogg guilty as charged. Fogg appealed following the imposition of sentence.
II. Analysis
A. Motion to Suppress
Fogg challenges the district court’s denial of her motion to suppress,
contending the court erred in concluding her encounter with Frazier did not amount
to a seizure or, alternatively, if the encounter did amount to a seizure, it was
supported by reasonable suspicion. “When a defendant challenges a district
court’s denial of a motion to suppress based upon the deprivation of a state or
federal constitutional right, our standard of review is de novo.” State v. Smith, 919
N.W.2d 1, 4 (Iowa 2018) (quoting State v. Coffman, 914 N.W.2d 240, 244 (Iowa
2018)). “[W]e independently evaluate the totality of the circumstances as shown
by the entire record.” Id. (alteration in original) (quoting State v. White, 887 N.W.2d
172, 175 (Iowa 2016)). In evaluating the totality of the circumstances, we are
entitled to consideration of evidence introduced at both the suppression hearing
and trial. See State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015). “Each case must
be evaluated in light of its unique circumstances.” Coffman, 914 N.W.2d at 244
(quoting State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012)). We give deference to
the district court’s findings of fact, but we are not bound by them. State v. Storm,
898 N.W.2d 140, 144 (Iowa 2017).
“The Fourth Amendment of the United States Constitution,” as applied to
the states by the Fourteenth Amendment, “and article I, section 8 of the Iowa
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Constitution protect individuals against unreasonable searches and seizures.”
State v. Naujoks, 637 N.W.2d 101, 107 (Iowa 2001); accord State v. McNeal, 867
N.W.2d 91, 99 (Iowa 2015). Evidence obtained following a violation of these
constitutional protections is generally inadmissible at trial. See Wong Sun v.
United States, 371 U.S. 471, 484–85 (1963); Mapp v. Ohio, 367 U.S. 643, 654–55
(1961); Naujoks, 637 N.W.2d at 111.
Fogg argues that Frazier’s placement of his police cruiser in the alley
rendered the encounter a seizure. It is true that stopping an automobile and
detaining its occupants unquestionably amounts to a seizure within the meaning
of the state and federal constitutions. See Delaware v. Prouse, 440 U.S. 648, 653
(1979); State v. Coleman, 890 N.W.2d 284, 288 (Iowa 2017); State v. Tyler, 830
N.W.2d 288, 292 (Iowa 2013). Fogg concedes this case does not involve a
“textbook traffic stop” but argues “the circumstances of the encounter still
demonstrate that [she] was seized for constitutional purposes.”
“[N]ot all personal intercourse between the police and citizens involve
seizures.” State v. Wilkes, 756 N.W.2d 838, 842 (Iowa 2008); accord State v.
Lowe, 812 N.W.2d 554, 570 (Iowa 2012). “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.” Wilkes, 756 N.W.2d at 842(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). In order “to convert an
encounter between police and citizens into a seizure,” there must be “objective
indices of police coercion,” which “is not established by ordinary indicia of police
authority,” such as merely flashing a badge, wearing a uniform, or being visibly
armed. See id. at 843. Whether a seizure occurred depends on the totality of the
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circumstances, and 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.” Id. at
842–843 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). “The
use of sirens, flashing lights or other signals . . . might also constitute a show of
authority that is a seizure.” State v. Harlan, 301 N.W.2d 717, 720 (Iowa 1981).
None of the foregoing factors are present here; the only allegation of police
coercion in this case is the placement of Frazier’s patrol car in front of Fogg’s
vehicle. We agree that the location of the cruiser in relation to the subject vehicle
is “a factor in determining whether a seizure occurred.” Wilkes, 756 N.W.2d at
844. However, our supreme court has cited with approval the conclusion of
another state high court “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.” Id. (emphasis
added) (citing People v. Cascio, 932 P.2d 1381, 1386–87 (Colo. 1997)). Here, the
evidence is undisputed that Fogg’s ability to leave was not “wholly” blocked; she
could have backed out of the alleyway, and the evidence shows she was parked
next to a driveway abutting the alley, which she could have turned around in;
additionally, as conceded in her brief on appeal, she could have also driven
forward, although that avenue would have required her to drive through yards
along the alley. Cf. id. (“Here, the ability of Wilkes to drive away was not
substantially impaired. In fact, . . . there were at least two ways for him to turn his
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truck around and leave the quarry, had he chosen to do so.”); State v. Mathis, No.
14-0861, 2015 WL1817111, at *2–3 (Iowa Ct. App. Apr. 22, 2015) (finding driver’s
ability to drive away was not “substantially impaired,” as “[s]he had two means of
egress. She could have backed out down the alley or she could have driven
forward past the officers’ vehicles.”). Likewise, this is not a situation in which Fogg
was in transit and Frazier’s placement of his vehicle in her avenue of egress forced
her to grind to a halt in the face of police authority; she was already stopped and
parked in the alley. See, e.g., Harlan, 301 N.W.2d at 720 (noting “[s]topping a car
in transit is obviously a seizure,” but indicating approaching a stationary vehicle is
less akin to a seizure); Mathis, 2015 WL1817111, at *3 (“[W]hen an officer does
not stop a vehicle, but merely walks up to a vehicle that is already stopped, as any
citizen might do, there has generally not been a seizure.”); State v. Bakula, No. 08-
0629, 2008 WL 500196, at *2 (Iowa Ct. App. Nov. 26, 2008) (finding fact that
subject vehicle was already stopped when officer initiated encounter militated
against the existence of a seizure). The circumstances in this case are nearly
identical to those in another matter in which this court affirmed a denial of a motion
to suppress, concluding no seizure occurred. See generally Mathis, 2015
WL1817111, at *1–3.1
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In Mathis, two officers in separate vehicles saw the defendant drive her vehicle into an
alley. 2015 WL1817111, at *1. Without activating their lights or sirens, both officers drove
into the alley where the defendant’s vehicle was parked with the motor running. Id. One
officer parked parallel to the subject vehicle, but facing in the opposite direction, and the
other officer parked about thirty feet behind the first officer, which would have placed him
in the defendant’s forward avenue of egress. See id. The evidence showed “Mathis could
have easily backed out down the alley. She could also have driven forward down the
alley, although this would have required her to drive on the grass to get around” one of
the officer’s vehicles. Id. Ultimately, Mathis was charged with driving while barred, and
she filed a motion to suppress, claiming she was improperly seized. On appeal, we
affirmed the denial of the motion to suppress, concluding:
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Here, Frazier was the sole officer involved in the initial encounter; he did not
draw his sidearm; there was no physical touching between him and Fogg; his tone
with Fogg was casual and non-aggressive; and he did not use sirens, flashing
lights, or other signals of authority. Although Frazier’s vehicle was situated in front
of Fogg’s, her ability to drive away was not substantially impaired. Simply stated,
there were no objective indices of police coercion during this encounter; there was
no show of authority here, which is a necessary prerequisite for a seizure. See
California v. Hodari D., 499 U.S. 621, 626–28 (1991). Consequently, upon our de
novo review of the record and consideration of the totality of the circumstances,
we agree with the district court that Fogg was not subjected to a seizure in the
constitutional sense. We therefore affirm the district court’s denial of her motion
to suppress evidence.
B. Ineffective Assistance of Counsel
Next, Fogg argues her “trial attorney was ineffective for failing to object to
the State’s prosecutorial error when the State disparaged defense counsel during
closing argument.” Ineffective-assistance-of-counsel claims are immune from
error-preservation defects. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa
2010). We review such claims de novo. State v. Albright, ___ N.W.2d ___, ___,
The officers did not stop Mathis’s vehicle. They did not have their lights
and sirens on. The evidence showed Mathis’s ability to drive away from
the officers was not substantially impaired. She had two means of egress.
She could have backed out down the alley or she could have driven forward
past the officers’ vehicles. There was no evidence the officers engaged in
a display of force or used language that would have made Mathis believe
she was compelled to comply with the request for her driver’s license. The
record in this case does not show there were objective indices of police
coercion.
Id. at *3.
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2019 WL 1302384, at *4 (Iowa 2019). Fogg must establish by a preponderance
of the evidence that (1) her trial counsel failed to perform an essential duty and (2)
the failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider
either the prejudice prong or breach of duty first, and failure to find either one will
preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State
v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).
Specifically, Fogg complains of the prosecutor’s statements during closing
rebuttal argument that “her attorney was intentionally misrepresenting the
evidence and making disingenuous arguments because that was his role in
defending a client” and urging “the jury to consider the prosecutor more trustworthy
and honest because he did not have a client to defend.” Generally, Fogg believes
the prosecutor improperly accused defense counsel of unethical conduct by trying
to twist the evidence in his client’s favor.
However, upon our de novo review of the record, we find no reasonable
probability of a different outcome had counsel objected to the complained-of
statements. See Albright, ___ N.W.2d at ___, 2019 WL 1302384, at *5 (“For the
second prong—prejudice—the claimant must prove there is a reasonable
probability that the outcome of the proceeding would have been different but for
counsel’s unprofessional errors.”). The jury was specifically instructed it must base
its verdict only upon the evidence presented and the court’s instructions. The jury
was also instructed statements, arguments, and comments by the lawyers are not
evidence. Appellate courts presume juries follow the court’s instructions, State v.
Sanford, 814 N.W.2d 611, 620 (Iowa 2012); State v. Hanes, 790 N.W.2d 545, 552
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(Iowa 2010), and we are thus unconvinced that the complained-of statements had
any effect on the jury’s verdict.
Furthermore, we disagree with Fogg that “[t]he case was close.” Although
Fogg variously testified that she was not impaired on the night in question and
attempted to explain away the State’s evidence during her testimony, the State
provided a mountain of evidence to rebuff her assertions. Fogg admitted to alcohol
consumption, although initially denying the same, and the standard field sobriety
tests she completed indicated she was impaired.2 She also admitted to consuming
several medications on the night in question, some of which cause dizziness and
may impair one’s ability to operate a motor vehicle. Video footage from Frazier’s
body camera showed Fogg to exhibit slurred speech and an inability to follow
instructions during attempted field sobriety testing. Video footage of Fogg at the
jail likewise showed Fogg, throughout the attempted exercise of her rights under
Iowa Code section 804.20 (2017) and implied-consent-advisory procedures, to
exhibit slurred speech; be in somewhat of a confused and emotional state; and
have bloodshot, watery eyes. Frazier testified he continued to smell the odor of
alcohol coming from Fogg’s person throughout his more than two-hour encounter
with her. She denied being impaired to Frazier, but refused to submit to both a
preliminary breath test and chemical testing. The jury was instructed it could
consider Fogg’s refusal to submit to a breath test in reaching its verdict. Frazier
testified he had “[n]o doubt” that Fogg was operating a motor vehicle while
2
Fogg was subjected to the horizontal- and vertical-nystagmus tests. She declined to
perform the walk-and-turn and one-legged-stand tests because she knew she would fail
those tests.
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intoxicated. Given the strong evidence of guilt, we find no reasonable probability
of a different outcome had counsel objected to the complained-of statements. See
Albright, ___ N.W.2d at ___, 2019 WL 1302384, at *5.
We find counsel’s alleged failure did not result in prejudice to Fogg, and
counsel therefore did not render ineffective assistance.
III. Conclusion
Having found the district court correctly denied Fogg’s motion to suppress
and counsel was not ineffective as alleged, we affirm Fogg’s conviction of OWI,
first offense.
AFFIRMED.