IN THE COURT OF APPEALS OF IOWA
No. 14-1678
Filed November 12, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRYAN JAMES ELDER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Rose Anne
Mefford, Judge.
A defendant convicted of operating while intoxicated appeals the ruling on
his motion to suppress evidence. REVERSED AND REMANDED.
Grant C. Gangestad of Gourley, Rehkemper & Lindholm, P.L.C., West
Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Jean Pettinger,
Assistant Attorneys General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.
Bryan Elder appeals his conviction for operating while intoxicated, second
offense, challenging the district court’s denial of his motion to suppress. He
alleges the police stop of his vehicle infringed his constitutional right against
unreasonable search and seizure and contends police conduct at the station
violated his rights under Iowa Code section 804.20 (2013). Because the vehicle
stop was not justified by reasonable suspicion or by the officer’s community
caretaking function, we reverse the suppression ruling.
I. Background Facts and Proceedings
As part of his routine patrol in the early morning hours of December 14,
2013, police officer Blaine Shutts performed “building checks” at various
locations in Oskaloosa. At about 1:45 a.m., the officer drove by a car dealership
and the VFW Hall, a local bar. In VFW parking lot he saw two vehicles, “one
facing northbound, one facing southbound.” He recalled the vehicles’ lights were
on, but he did not see anyone in the vehicles.
The officer proceeded to do his “building check” at a nearby farm
implement store and then drove back by the VFW parking lot. He saw the lights
of one of the vehicles, a black Hyundai, were now turned off and he saw
“movement inside the vehicle with moisture on the windows.” After seeing the
movement, the officer “circled back around and got in behind the car, saw the
vehicle was running.” He activated his overhead lights and pulled in behind the
Hyundai.
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The officer walked up to the parked car and found Elder in the driver’s
seat and a female passenger. The occupants told the officer they were “just
talking” while they waited for “her vehicle to warm up.” The officer noticed the
smell of alcoholic beverages from inside the car. Elder told the office he had
consumed five or six beers. During his investigation, the officer allowed the
passenger to enter the VFW, which was still open, to use the restroom.
The officer asked Elder to submit to field sobriety tests and a preliminary
breath test. Based on the results of those tests, Officer Shutts placed Elder
under arrest and transported him to the Mahaska County jail where the officer
invoked implied consent. A DataMaster test measured Elder’s blood alcohol
level at .143.
The State filed a trial information charging Elder with operating while
intoxicated, second offense, an aggravated misdemeanor, in violation of Iowa
Code section 321J.2. Elder filed a motion to suppress evidence obtained as a
result of the stop, citing the Fourth Amendment of the United States Constitution
and Article I, Section 8 of the Iowa Constitution. Elder also challenged the
admission of the DataMaster test results under section 804.20 based on
statements the officer made to him at the jail. The district court held a hearing on
the motion to suppress; Officer Shutts was the sole witness.
At the suppression hearing, the State’s only justification for the stop was
the officer’s community caretaking function. Both in a written brief and an oral
closing argument, the prosecutor asserted the officer “had a duty as a community
caretaker to investigate this situation.” The prosecutor argued the officer had
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probable cause to investigate only after smelling alcohol on the defendant and
hearing his admission to drinking five to six beers. The defense argued the
officer lacked reasonable suspicion to “stop” Elder’s vehicle and “[n]o evidence
was presented to show a factual basis for the officer’s belief that the driver was in
need of assistance.”
The district court denied Elder’s motion to suppress. The written ruling
described the officer’s stop as follows:
Here, Officer Shutts, while assigned to patrol a specific non-
residential area of the community for evidence of burglaries, etc.,
immediately noted the presence of the defendant’s vehicle, motor
running and lights on, with an apparent absence of occupants, at
1:45 in the morning, next to another apparently empty running
vehicle. Officer Shutts passed by and then returned to the
suspicious vehicle and this time observed occupants trying to duck
under the door panel at his approach. Officer Shutts was unsure
what was happening in the vehicle and decided to approach to
investigate.
The court determined from the totality of the circumstances that the officer
had reasonable suspicion to conduct an investigatory stop. As key
circumstances, the court listed:
the time of night, 1:45 a.m.; the location, a non-residential area of
the city patrolled nightly by the city police department for evidence
of burglaries, etc.; the location of the defendant at the farthest edge
of the parking area from the VFW, while the building lights are out;
and the furtive action taken by the occupants of the vehicle in
attempting to duck below the door panel when Officer Shutts made
his second approach.
The court did not address the community caretaking justification. The
court also rejected Elder’s arguments under section 804.20.
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Elder was found guilty following a trial on the minutes of evidence. The
court entered judgment and sentenced Elder to an indeterminate two-year term,
suspending all but seven days. Elder now appeals.
II. Scope and Standards of Review
We perform a de novo review of the suppression ruling to the extent that it
raises the constitutional right to be free from unreasonable searches and
seizures. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). In doing so, we
independently evaluate the totality of the circumstances found in the suppression
and trial record. Id.
If we were to reach the portion of the suppression ruling based on section
804.20, our review would be for errors at law. See State v. Walker, 804 N.W.2d
284, 289 (Iowa 2011).
III. Analysis of Constitutional Suppress Issue
It is undisputed that when Officer Shutts activated his lights and pulled in
behind the Hyundai parked in the VFW lot, he executed a traffic stop, triggering
Elder’s protections under the Fourth Amendment and article I, section 8. 1 On
appeal, the State argues the officer had reasonable suspicion to seize Elder’s
vehicle and, alternatively, the officer’s actions constituted “legitimate community
caretaking activity.” Neither argument is supported by the suppression or trial
record.
1
Elder cites to both constitutional provisions but does not argue we should interpret the
state constitution differently. Accordingly, for purposes of our analysis, we assume the
legal principles governing the parallel provisions are the same. See State v. McNeal,
867 N.W.2d 91, 99 n.1 (Iowa 2015).
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A. Reasonable Suspicion
“Reasonable suspicion to stop a vehicle for investigative purposes exists
when articulable facts and all the circumstances confronting the officer at the
time give rise to a reasonable belief that criminal activity may be afoot.” State v.
McIver, 858 N.W.2d 699, 702 (Iowa 2015). An investigatory stop based on
reasonable suspicion is a well-established exception to the search warrant
requirement. State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010) (citing Terry v.
Ohio, 392 U .S. 1, 21 (1968)). In deciding if the officer had reasonable suspicion,
it is important to consider the circumstances collectively. McIver, 858 N.W.2d at
702.
As the district court correctly noted, it was relevant that the stop occurred
at 1:45 a.m., just around the time that bars were closing. See id. But the early
morning hour does not alone support reasonable suspicion. See id.
The court next cited the location of the stop, describing a business parking
lot where the police patrolled nightly “for evidence of burglaries.” The court also
noted the VFW building lights were “out”—a finding not supported by the record.
Officer Shutts testified there was a light, turned on, on the side of the building at
the time of the stop and the sign out front was still on. The officer also testified
the doors of the VFW building were unlocked and “[t]here were people still there.”
He did not know what time the VFW closed that night, and testified “apparently” it
was still open to the public at the time of the stop. The officer testified other
vehicles were parked at the VFW and Elder’s car was not parked behind the
building or concealed in any way.
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The officer also addressed the issue of the routine patrol for evidence of
burglaries; he acknowledged he did not have any reports of burglaries in that
vicinity that night nor did he see any evidence of a possible burglary. This was
not a case like State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993), where
reasonable suspicion arose from the defendant’s action of pulling out from the
area of a closed business that had been frequently burgled.
The officer did not articulate why the presence of the two cars, one of
which had its lights on the whole time, gave rise to a reasonable belief that
criminal activity was afoot. He agreed nothing about the moisture on the
windows of Elder’s car indicated somebody was doing something wrong inside.
In its suppression ruling, the court relied in part on the “furtive action taken
by the occupants of the vehicle in attempting to duck below the door panel when
Officer Shutts made his second approach.” The ruling overplays the significance
of the movement seen by the officer, who testified he did not know if Elder
ducked in response to seeing the patrol car or if he was just reaching down for
something on the floor. The officer agreed there was “nothing criminal about
moving around in a car.” Our cases have identified “furtive movement” as a
viable consideration in an officer’s decision whether to stop a vehicle. See State
v. Haviland, 532 N.W.2d 767, 769 (Iowa 1995) (discussing evasive movement of
driver in reaction to seeing another private citizen). In this case, the suppression
record did not support the presumption that the movement was an attempt to
evade police attention.
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Ultimately, under cross-examination, the officer agreed he had a “hunch”
something might be going on in Elder’s car, but “did not know if they’d done
anything criminal. I was just checking on them.” Our case law makes clear: “A
mere hunch, unparticularized suspicion, or curiosity will not justify an
investigatory stop.” Vance, 790 N.W.2d at 781. The evidence of reasonable
suspicion was so weak in this suppression proceeding that the trial prosecutor
did not even pursue that basis for upholding the stop. On appeal, we conclude
the State did not show by a preponderance of the evidence that a reasonable
suspicion of criminal activity arose from the facts available to Officer Shutts.
Accordingly, the reasonable-suspicion exception to the warrant requirement
cannot support his seizure of Elder’s vehicle.
B. Community Caretaking
We now turn to the State’s argument that Officer Shutt’s seizure of Elder’s
car was justified under the community-caretaking exception to the warrant
requirement. The United States Supreme Court recognized this exception
because local police officers “frequently investigate vehicle accidents in which
there is no claim of criminal liability and engage in what, for want of a better term,
may be described as community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973).
Community caretaking cases follow a three-step analysis. State v.
Crawford, 659 N.W.2d 537, 543 (Iowa 2003). Initially, we ask whether a seizure
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occurred within the meaning of the Fourth Amendment. If so, we inquire whether
the police were conducting “bona fide community caretaker activity.” And if so,
we ask whether the needs and interests of the public in that activity outweigh the
intrusion upon the privacy of the citizen. Bona fide community caretaker activity
can fall into three categories: emergency aid, impoundment and inventory, and
the public servant exceptions. See State v. Kurth, 813 N.W.2d 270, 277 (Iowa
2012). Our supreme court has explained the “narrow distinction” between the
first and third doctrines:
Under the emergency aid doctrine, the officer has an immediate,
reasonable belief that a serious, dangerous event is occurring. . . .
[I]n contrast, the officer in a public servant situation might or might
not believe that there is a difficulty requiring his general assistance.
For example, an officer assists a motorist with a flat tire under the
public servant doctrine, but an officer providing first aid to a person
slumped over the steering wheel with a bleeding gash on his head
acts pursuant to the emergency aid doctrine.
Crawford, 659 N.W.2d at 541-42 (quoting Mary E. Naumann, The Community
Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim.
L. 325, 330–41 (1999)).
In this case, Officer Shutts testified he did not see any damage to either
vehicle, did not see the driver slumped over the steering wheel, did not see any
blood, and did not believe the occupants were injured. Accordingly, the State
appears limited to the public servant situation, where the officer believes a
motorist might be having “a difficulty requiring his general assistance.”
The State argues Officer Shutts was engaged in bona fide community
caretaking activity when “he saw two cars parked in a relatively-deserted area
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late on a December night when temperatures were below freezing, and the lights
of one of the cars were first on, then off, and then on again.” The State contends
these circumstances suggested the possibility that one of the cars was having
mechanical difficulties and needed assistance. The State’s contention is belied
by the officer’s testimony. He did not testify the area was relatively deserted;
rather he recalled other vehicles being present in the parking lot. He testified
Elder’s vehicle did not appear to be disabled, did not have any flat tires, did not
have its flashers on, and the engine was running. The situation did not suggest
mechanical trouble to the officer; rather he testified he was motivated to make
the stop because he saw the occupants “duck underneath the door panel, like
they saw me.”
Even if the officer was acting as a bona fide public servant in checking
whether Elder needed assistance, the detention of Elder, the passenger, and the
vehicle “exceeded the scope of reasonably necessary community caretaking
activity.” See Kurth, 813 N.W.2d at 278. In Kurth, the court decided it was not
necessary for the officer to block in an already parked vehicle, when all the
officer “needed to do was to park next to him and approach him.” Id. (noting any
purported community care-taking function could have been accomplished
through a consensual encounter rather than an investigatory stop). The
community-caretaker exception to the warrant requirement does not support the
officer’s seizure of Elder’s vehicle.
Because we order the exclusion of all evidence of Elder’s intoxication
based on the improper stop, we do not need to address the suppression issue
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involving his rights under section 804.20. We reverse and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.