IN THE COURT OF APPEALS OF IOWA
No. 15-1724
Filed November 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRISTOPHER TODD TUSLER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Peter B. Newell,
District Associate Judge.
Christopher Tusler appeals the district court’s denial of his motion to
suppress. AFFIRMED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
POTTERFIELD, Presiding Judge.
I. Background Facts and Proceedings.
On November 21, 2014, Deputy Dan Sargent and Reserve Deputy Lucas
Johnson of the Floyd County Sheriff’s Office were on routine patrol, conducting
building checks along Old Highway Road. Deputy Sargent testified he and
Reserve Deputy Lucas saw a van driving towards them with only one headlight
illuminated. While testifying, Deputy Sargent could not remember which
headlight was not operating, but Reserve Deputy Lucas said it was the one on
the driver’s side. Deputy Sargent testified this was the basis for pulling
Christopher Tusler over.
Once pulled over, according to Deputy Sargent’s testimony, Tusler
indicated his driver’s license was suspended and handed the officers an
identification card. Deputy Sargent stated he smelled alcohol coming from Tusler
and noticed Tusler had watery, bloodshot eyes. The deputies administered field
sobriety tests and noted he exhibited several clues of intoxication. Tusler also
submitted to a breath test, which indicated a blood alcohol content of .130.
Tusler was charged by trial information on December 2, 2014, for violating
Iowa Code section 321J.2 (2013), operating while intoxicated, third or
subsequent offense. On March 6, 2015, Tusler filed a motion to suppress the
evidence obtained during what he contended was an illegal traffic stop. In
support of this contention, Tusler introduced into evidence photographs taken at
a gas station mere minutes before being pulled over that show both headlights
were on and functioning. Tusler also testified at the suppression hearing that the
lights were working that night and continued to work after the incident without any
3
repairs being done to the lights. The court denied Tusler’s motion to suppress,
finding the officers’ testimony credible.
Tusler was convicted after a trial on the minutes of testimony on August 4,
2015. On October 8, 2015, the court entered judgment and sentenced him to an
indeterminate five-year prison sentence. The court also ordered him to pay fines
and attend classes, and suspended his driver’s license.
Tusler now appeals the denial of his motion to suppress.
II. Standard of Review.
We review Tusler’s claim the district court should have granted his motion
to suppress on federal and state constitutional grounds de novo. See State v.
Lane, 726 N.W.2d 371, 377 (Iowa 2007). In doing so, we consider the entire
record and independently evaluate the totality of the circumstances. See State v.
Turner, 630 N.W.2d 601, 606 (Iowa 2001). “We give deference to the district
court’s fact findings due to its opportunity to assess the credibility of witnesses,
but we are not bound by those findings.” Id.
III. Discussion.
On appeal, Tusler alleges there was no evidence presented by the State
that showed Tusler was operating his vehicle on a public street or highway at the
time the deputies pulled him over. He contends that without proof he was driving
on a public road without headlights or alternate lights on his vehicle, he did not
violate Iowa law1 and deputies could not have legally pulled him over.
1
Tusler refers to Iowa Code section 321.384, which states, “Every motor vehicle upon a
highway within the state, at any time from sunset to sunrise . . . shall display lighted
headlamps,” and to section 321.418 which states:
4
The State claims Tusler failed to preserve error regarding his argument
the State failed to prove the incident occurred on a public road. In his motion to
suppress and at the hearing, the State contends Tusler only argued the State
failed to prove his vehicle’s headlights were not on at the time he was pulled
over.
The Fourth Amendment of the United States Constitution and article 1,
section 8 of the Iowa Constitution protect the right of people to be free from
unreasonable searches and seizures. “A traffic stop is permissible under our
Iowa and Federal Constitutions when supported by probable cause or
reasonable suspicion of a crime.” State v. McIver, 858 N.W.2d 699, 702 (Iowa
2015). “When a peace office observes any type of traffic offense, the violation
establishes both probable cause to stop the vehicle and reasonable suspicion to
investigate.” Id. (citing State v. Harrison, 830 N.W.2d 362, 365 (Iowa 2014)).
Tusler failed to preserve error on his claims concerning whether the State
proved he was driving on a public road or had alternate lighting. See State v.
Trice, No. 15-0437, 2016 WL 2745914, at * 2 (Iowa Ct. App. May 11, 2016)
(citing State v. Rains, 574 N.W.2d 904, 914 (Iowa 1998) (finding, on an appeal
from the denial of a motion to suppress, an issue raised on appeal but not raised
in the motion to suppress or at trial is not preserved for appellate review)). Tusler
has changed his original argument in his motion to suppress to his argument now
Any motor vehicle may be operated under the conditions specified
in section 321.384 when equipped with two lighted lamps upon the front
thereof capable of revealing persons and objects seventy-five feet ahead
in lieu of lamps required in sections 321.409 and 321.415, or section
321.417, provided, however, that at no time shall it be operated at a
speed in excess of twenty miles per hour.
5
on appeal. As noted, he first argued the State did not prove one headlight was
out at the time he was stopped by the deputies; now he argues the State did not
prove he was driving on a public road or with alternate lighting at the time he was
stopped by deputies. Because neither of the new issues was raised to, or
decided by, the district court, they are not preserved and we decline to address
them. See State v. Lawler, 571 N.W.2d 486, 491 (Iowa 1997).
However, even if the claim had been properly preserved, Tusler conceded
the public-road issue in his motion to suppress. In that motion, Tusler stated his
vehicle was stopped at “Old Highway Road (S. Grand or Shadow Avenue) and
the Avenue of the Saints (Highway 18).” Our code defines street or highway as
“the entire width between property lines of every way or place of whatever nature
. . . is open to the use of the public, as a matter of right, for purposes of vehicular
traffic.” Iowa Code § 321.1(78). By Tusler’s own admission, it is clear both are
public roadways. And because Tusler presented photos of his vehicle to the
district court, he proved there was no alternate lighting to support his claim.
Having determined Tusler failed to preserve the issues for our review, we
affirm the district court’s denial of his motion to suppress.
AFFIRMED.