IN THE COURT OF APPEALS OF IOWA
No. 14-0521
Filed March 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
VICTORIA LYNN SELLERS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, James B. Malloy,
District Associate Judge.
Victoria Sellers appeals from her conviction on one count of operating
while intoxicated. She claims the district court erred in denying her motion to
suppress evidence obtained as a result of the stop of her vehicle. REVERSED
AND REMANDED.
Grant C. Gangestad of Gourley, Rehkemper, & Lindholm, P.L.C., West
Des Moines, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Adria Kester, until withdrawal, and Dan Kolacia, County
Attorney, and Kailyn Heston, Assistant County Attorney, for appellee.
Heard by Potterfield, P.J., and Tabor and Bower, JJ.
2
POTTERFIELD, P.J.
Victoria Sellers appeals from her conviction on one count of operating
while intoxicated. She claims the district court erred in denying her motion to
suppress evidence obtained as a result of the seizure of her vehicle.
I. Factual and Procedural Background
In the early morning hours of December 1, 2013, a sheriff’s deputy on
patrol observed a car facing the opposite direction on the roadway. As he
passed the car, the deputy observed that the car was stopped. He was unsure
whether the car was stopped on the side of the road or on the traveled portion of
the road. He turned around to approach the car from behind because, in his
words, it “[j]ust seemed suspicious that there would be a car stopped . . . with the
lights on.” When he approached the vehicle from behind, he saw it was pulled
over completely onto the shoulder of the road. The officer believed the car was
about a quarter-mile to a half-mile farther down the road than it had been when
he had first observed it.
As he pulled in behind the car, he turned a plain white spotlight onto the
car but did not turn on his forward-facing overhead lights to indicate he was an
officer or that the car was being stopped.1 After a pause, the driver used the left
turn signal to indicate her intention to merge back onto the road and go on her
way. The car shifted into gear and began to pull forward. The deputy then
1
The officer did turn on his rear-facing flashing overheads to indicate to any oncoming
traffic that the patrol car was stopped on the side of the road. However, the officer
believed this would not have been visible to the driver of the stopped car in front of him.
3
turned on his flashing overhead lights and seized the car. The driver immediately
ceased her attempt to merge back onto the road and fully complied with the stop.
As a result of evidence obtained during the seizure, Sellers, the driver of
the car, was charged with operating while intoxicated (OWI). Sellers moved to
suppress all evidence obtained as a result of the stop, claiming the seizure was a
violation of her constitutional protection against unreasonable searches and
seizures. The district court held a hearing on the motion on January 28, 2014.
The evidence presented at the hearing consisted of a video recording of the
incident taken from the deputy’s patrol car camera and the testimony of the
deputy himself.
In addition to the deputy’s testimony that it “[j]ust seemed suspicious that
there would be a car stopped . . . with the lights on,” he further testified he pulled
up behind the vehicle “to make sure whoever was in the vehicle was okay, didn’t
need medical attention.” He testified, “I was just stopping to check to see if she
needed assistance with anything.” However, after he pulled in behind Sellers’s
car, he did not check on her medical condition but instead called dispatch to run
her plates.
After Sellers had signaled her intention to merge back onto the road and
proceed on her way, the deputy testified he then had a suspicion “[o]f either
medical condition or possibly OWI or an impaired driver at that time in the
morning.” He described the facts giving rise to his suspicion of an impaired
driver:
Just the way that she stopped. Looked to me like [she] was
stopped the first time in the traveled portion of the road. She had
left where she was stopped the first time and then drove quarter to
4
half mile and then stopped again. That just raised my suspicions
that something was going on.
He additionally noted that her attempt to go on her way and the early morning
hour contributed to his suspicions.
The district court orally denied the motion to suppress at the end of the
hearing. It explained, “The time of day, the manner of the stop just is very
unusual.” The court found the deputy had a reasonable suspicion that criminal
activity—i.e. OWI—was afoot under the circumstances. It also found the
deputy’s seizure was supported as part of his community-caretaking function
because “there could be medical reasons for all of this to take place.”
The court issued a written order confirming its oral denial of the motion to
suppress. Sellers waived a jury trial. She was convicted following a stipulated
trial on the minutes of testimony. She now appeals, asserting the district court
erred when it failed to suppress all evidence flowing from the traffic stop because
the seizure was unconstitutional.
II. Standard of Review
Sellers argues the stop violated her constitutional rights under both the
United States Constitution and the Iowa Constitution. U.S. Const. amend. IV;
Iowa Const., art. I, § 8. We review her claim de novo. State v. Kurth, 813
N.W.2d 270, 272 (Iowa 2012). We make an independent evaluation of the
totality of the circumstances unique to her case as shown by the record. Id.
III. Discussion
The Fourth Amendment to the United States Constitution provides, “The
right of the people to be secure in their persons, houses, papers, and effects,
5
against unreasonable searches and seizures, shall not be violated.” That
provision is made applicable to the states through the Fourteenth Amendment.
See Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Iowa Constitution includes the
same relevant language as the Fourth Amendment. See Iowa Const., art. I, § 8.
To comply with these constitutional mandates, “a search or seizure must
be conducted pursuant to a warrant issued by a judge or magistrate . . . [u]nless
an exception to the warrant requirement applies.” State v. Kreps, 650 N.W.2d
636, 641 (Iowa 2002). The deputy in this case had no warrant to seize Sellers,
so the district court relied upon two exceptions to the warrant requirement to
support the seizure. Sellers asserts that neither exception is applicable on the
facts of this case.
A. Reasonable Suspicion
First, a well-established exception to the warrant requirement “allows an
officer to briefly stop an individual or vehicle for investigatory purposes when the
officer has a reasonable, articulable suspicion that a criminal act has occurred, is
occurring, or is about to occur.”2 State v. Vance, 790 N.W.2d 775, 780 (Iowa
2010). For an investigatory stop to qualify under the reasonable-suspicion
exception, “the State must prove by a preponderance of the evidence the officer
had specific and articulable facts that, taken together with rational inferences
from those facts, would lead the officer to reasonably believe criminal activity is
2
Because the reasonable-suspicion exception only supports a stop to investigate
criminal activity, a seizure under this exception cannot be supported by the deputy’s
stated reason that he wanted to see if Sellers “needed assistance with anything” or by
his suspicion of a “medical condition.” These motivations could only support a
warrantless seizure under the community-caretaker exception discussed below. As to
the scope of our reasonable-suspicion analysis, therefore, we are limited to whether the
deputy’s suspicion of a possible OWI was reasonable.
6
afoot.” Id. at 781 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “A mere hunch,
unparticularized suspicion, or curiosity will not justify an investigatory stop.” Id.
We do not agree with the district court that the deputy had a reasonable
suspicion of criminal conduct. As to specific and articulable facts, the deputy
testified he was unsure of precisely what he saw upon his initial sighting of
Sellers’s car as he passed. He testified,
[T]he first time I observed the vehicle I don’t know if it was over the
side of the road or if it stopped in the traveled portion of the road;
so all I can say is that when I pulled in behind the vehicle, it was
pulled over off the highway at that point.
(Emphasis added.) As the district court itself noted, “there [were] plenty of
reasons the car could be stopping.”
The fact that Sellers had pulled over to the side of the road—even taken
together with the fact that Sellers attempted to go on her way prior to the formal
seizure—does not give rise to a reasonable suspicion that criminal activity is
afoot. Neither are there any rational inferences of such activity. The deputy’s
testimony was clear that he did not observe any traffic violations. 3 He did not
3
The State argues for the first time on appeal the stop was supported by reasonable
suspicion because the deputy observed Sellers violating Iowa Code section
321.366(1)(f) (2013), which provides:
It is unlawful for a person . . . on a fully controlled-access
facility . . . [to s]top, park, or leave standing a vehicle, whether attended or
unattended, upon the shoulders, or the right-of-way except at designated
rest areas or in case of an emergency or other dire necessity.
Sellers argues she did not violate this provision because the road in question was not a
fully controlled-access facility, and section 321.366 therefore has no application to the
facts of this case. See Iowa Admin. Code r. 761-112.2(306A) (defining “fully controlled
access highway” as a highway with no permanent at-grade access and with permanent
access points only at interchange locations). However, we may not pass upon the
question of this provision’s applicability because the State did not raise it before the trial
court and the trial court did not consider or rely upon it. “Issues on appeal not raised in
7
observe any suspect driving, such as Sellers having any difficulty maintaining her
lane. The vehicle was in working order, and there were no equipment failures
that violated the law.
Based on the few specific and articulable facts in the record, the deputy
claimed the circumstances “just raised my suspicions that something was going
on.” We find the deputy’s expressed reasons for seizing Sellers with regard to
any criminal activity to be a “mere hunch” and “an unparticularized suspicion.”
See id. The State has not shown by a preponderance of the evidence that a
reasonable suspicion of criminal activity arose from the facts of this case;
therefore, the reasonable-suspicion exception to the warrant requirement cannot
support the deputy’s seizure of Sellers’s vehicle.
B. Community Caretaking
Second, the United States Supreme Court has crafted another exception
to the warrant requirement commonly known as the community-caretaking
exception. See Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Local police do
not run afoul of the constitution if they make a seizure pursuant to any proper
community caretaking functions, which “are totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute.”4 Id. The Iowa Supreme Court has applied the exception to find some
the district court are deemed waived.” State v. Meyers, 799 N.W.2d 132, 147 (Iowa
2011).
4
As a corollary to the limit of our scope of review on the matter of reasonable suspicion,
the scope of our review on the matter of the community-caretaker exception is likewise
limited to the deputy’s expressed intention to see if Sellers “needed assistance with
anything” or was experiencing medical issues. The deputy’s suspicion or investigation of
OWI is a criminal consideration and is therefore subject to the reasonable-suspicion—
and not the community-caretaker—exception to the warrant requirement.
8
traffic stops proper—see, e.g., State v. Crawford, 659 N.W.2d 537, 543–44 (Iowa
2003)—and others improper—see, e.g., State v. Tague, 676 N.W.2d 197, 205–
06 (Iowa 2004).5
[C]ommunity caretaking cases require a three-step analysis:
(1) was there a seizure within the meaning of the Fourth
Amendment?; (2) if so, was the police conduct bona fide
community caretaker activity?; and (3) if so, did the public need and
interest outweigh the intrusion upon the privacy of the citizen?
Crawford, 659 N.W.2d at 543. Only if we can answer all three inquiries in the
affirmative will the seizure be considered proper as an exception to the warrant
requirement. Id. The analysis is an objective one in which we consider the
unique circumstances confronting the deputy and determine whether his actions
were reasonable under those circumstances. Kurth, 813 N.W.2d at 277.
As to the first step, it is uncontested that a seizure occurred when the
officer turned on his flashing overhead lights after Sellers signaled that she
intended to merge back onto the road.
As to the second step, we must determine whether the officer’s conduct
constituted “bona fide community caretaker activity.” Bona fide community
caretaking activity can take three forms: (1) emergency aid, (2) automobile
5
Sellers argues the Iowa Constitution’s protection against unreasonable seizures should
be greater than that provided by the U.S. Constitution and the scope of the community-
caretaker exception should therefore be constrained in Iowa. Our supreme court has
used the community-caretaker exception in both the federal and state constitutional
context; however, it has not determined whether the “analysis would differ under the
Fourth Amendment” of the United States Constitution as opposed to analyses under the
analogous provision of the Iowa Constitution. See Kurth, 813 N.W.2d at 275 n.1;
compare Crawford, 659 N.W.2d at 543 (analyzing the exception under the Federal
Constitution), with Tague, 676 N.W.2d at 204–05 (analyzing the exception under the
state constitution). Without a definite distinction between the two analyses, we do not
reach Sellers’s challenge to the scope of the community-caretaker exception under the
state constitution.
9
impoundment/inventory, and (3) public servant actions. See Crawford, 659
N.W.2d at 541. Sellers’s vehicle was not being impounded or inventoried, so the
deputy’s seizure was only permissible if his actions reasonably constituted
emergency aid or public service.6
To determine whether the deputy’s actions constituted bona fide
community caretaking activity, “we consider what [the deputy] knew at the
moment he stopped the [vehicle].” Id. at 543. The stop is not permitted unless
“the facts available to the officer at the moment of the seizure would have
warranted a reasonable person to believe an emergency [or public service need]
existed.” Id.
In this case, there was no indication that any emergency was taking place.
The deputy testified the car appeared to be in good working order and he had not
observed any traffic violations, suspect driving, or anything else to suggest the
driver was injured. His decision to first run Sellers’s plates instead of
immediately checking on her condition is inconsistent with his claim that he
suspected the driver might have needed medical assistance. See Kurth, 813
N.W.2d at 279 (“That action [of calling the driver’s plates in] seems inconsistent
with a public safety purpose but is certainly consistent with an investigative
purpose.”). Neither was there any indication Sellers needed the deputy to
perform any public service function or to assist her. When Sellers signaled her
6
As examples, “assisting a motorist with a flat tire might be an example of the public
servant doctrine, whereas providing first aid to a person slumped over the steering wheel
with a bleeding head gash would fall under the emergency aid doctrine.” Kurth, 813
N.W.2d at 277–78.
10
intent to merge back onto the road and carry on her way, she also indicated she
did not require or expect any assistance from whoever had stopped behind her.
Our case law indicates much more is needed to justify a seizure based on
an officer’s role as a community caretaker than appears in the record in this
case. In Kurth, our supreme court noted a community-caretaking function may
have justified a stop immediately after an officer observed a car hit a road sign,
but the community-caretaker need had disappeared prior to the seizure because
the car was already parked and the officer had already ascertained that no
significant damage to the car had occurred. See id. at 278. Likewise, the
deputy’s reliance on the community-caretaker exception in this case may have
justified a seizure of Sellers’s car when he first stopped behind her, but he did not
seize the car at that time. It was not until Sellers began to pull back on the
roadway that the officer initiated the seizure.
In Tague, our supreme court held even a vehicle crossing an edge line of
a divided roadway is not sufficient to give rise to a concern of a fatigued driver
that would support a seizure under the community-caretaker exception. Tague,
676 N.W.2d at 205. Additionally, Tague, like the case before us, involved an
incident occurring in the early morning hours. Id. at 200. We are therefore not
persuaded by the State’s argument that the time of day in this case—
approximately 2:20 in the morning—adds weight to its community caretaker
argument.
Typically, a seizure justified under the community-caretaker exception
involves either an officer acting on some reported information that a risk to the
community exists or the officer’s own direct observations of an emergency or
11
public service need. See, e.g., Crawford, 659 N.W.2d at 543 (explaining the
officer’s actions resulted from a report that a male subject had taken pills, was
acting in an agitated and physically aggressive manner, was confused as to his
own whereabouts, and wanted the police to take him home); State v. Carlson,
548 N.W.2d 138, 142–43 (Iowa 1996) (discussing the officers’ actions, which
resulted from a missing-person report along with knowledge that the person
missing had been attempting to escape from a physically abusive relationship);
see also Kurth, 813 N.W.2d at 278 (citing favorably case law from other
jurisdictions in which officers’ direct perception of vehicle defects permitted them
to stop the drivers to inform them of the defect or dangerous condition).
However, the officer in this case observed no discernable issues with Sellers’s
car or driving and was not acting on any information or report.
“[A]ctions under [the community-caretaker] exception must be limited to
the justification thereof, and the officer may not do more than is reasonably
necessary to determine whether a person is in need of assistance, and to provide
that assistance.” Kurth, 813 N.W.2d at 278 (citations and internal quotation
marks omitted). The deputy in this case testified that he pulled up behind Sellers
“to check to see if she needed assistance with anything.” Once Sellers indicated
she did not need assistance by attempting to go on her way, the justification for
the officer’s community-caretaker function disappeared.
At the moment he seized the vehicle, the facts available to the deputy
would not have reasonably caused him to believe an emergency existed or
Sellers needed his assistance in a public service capacity. Therefore the
12
community-caretaker exception to the warrant requirement does not support the
deputy’s seizure of Sellers’s vehicle.7
IV. Conclusion
The reasonable-suspicion and community-caretaker exceptions give
officers wide latitude in performing their societal functions, but that latitude
cannot be unlimited lest the exceptions subsume the rule. In this case, the State
has failed to show by a preponderance of the evidence that the deputy’s
suspicion, though he may have had one, rose to the level of a reasonable and
articulable suspicion. The State has also failed to show the seizure was
necessary for the deputy to perform his role as a community caretaker.
Therefore, in the absence of a warrant, the seizure of Sellers’s vehicle
runs contrary to her constitutional protection against unreasonable searches and
seizures. Evidence obtained as a result of the seizure must be suppressed. See
State v. McCoy, 692 N.W.2d 6, 23 (Iowa 2005) (“The exclusionary rule bars the
use of both evidence directly seized in an unlawful detention and evidence
discovered indirectly through the use of evidence or information gained in the
7
Because the State’s reliance on the community-caretaker exception fails at the second
step of the analysis, we need not consider the third step—whether the public need and
interest outweighed the intrusion upon Sellers’s privacy. However, we note that the
weight of the public interest is heavily diminished in this case by the fact that there was
no evidence of a need for police intervention at the time of the seizure. We may not
weigh the value to the public interest retrospectively with the awareness in hindsight that
Sellers was impaired. We must weigh the public interest based on what the deputy
knew at the time of the seizure. See Crawford, 659 N.W.2d at 543. The State argues
that, “[h]ad Sellers not been impaired, the conversation would have quickly ended.” The
State’s use of the benefit of hindsight in its argument is contrary to the state of the law,
and its assertion is therefore unpersuasive.
13
unlawful detention.”). We reverse and remand for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.