State of Iowa v. William Arthur Dewitt

IN THE SUPREME COURT OF IOWA
No. 09–0141

Filed March 9, 2012

STATE OF IOWA,

Appellee,

vs.

WILLIAM ARTHUR DEWITT,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, Mark D.

Cleve, Judge.

Appellant seeks further review of court of appeals decision

affirming his drug convictions by challenging the sufficiency of evidence

and the force used to stop him for questioning. DECISION OF COURT

OF APPEALS AFFIRMED; JUDGMENT AND SENTENCE OF DISTRICT

COURT AFFIRMED.

Kent A. Simmons, Davenport, for appellant.

Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant

Attorney General, Michael J. Walton, County Attorney, and Kelly G.

Cunningham, Assistant County Attorney, for appellee.
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CADY, Chief Justice.

In this appeal, we must primarily decide if the physical force used

by police to conduct a Terry stop was unreasonable and violative of the

search-and-seizure provisions of our State and Federal Constitutions.

The district court found the force used was not unreasonable, and the

defendant was subsequently convicted of the crimes of possession with

intent to deliver, violation of the drug tax stamp act, and interference

with official acts. We transferred to the court of appeals, and it affirmed

the convictions. On our review, we affirm the decision of the court of

appeals and the judgment and sentence of the district court.

I. Background Facts and Proceedings. 1

On June 5, 2008, officers from the Davenport Police Department

initiated an investigatory encounter with William Arthur DeWitt, initially

based on information provided to them by a confidential informant who

had worked with Davenport police in the past. The source provided a

description of DeWitt and indicated DeWitt planned to sell marijuana at

the Davenport Walmart at approximately 8:30 p.m. on June 5, 2008.

The informant further told police that DeWitt would be driving a gray

Lincoln Town Car with Illinois license plate number A244897. A police
surveillance team was positioned in the Walmart parking lot to await

DeWitt’s arrival. Shortly after 9 p.m., DeWitt drove into the parking lot of

the store in a gray Lincoln Town Car. He parked the car and entered the

store.

Detectives Brian Morel and Daniel Westbay from the police

narcotics division followed DeWitt into the store while the other officers

1The background facts are drawn from testimony presented at trial and at a

hearing on the pretrial motions filed in the case.
 3

secured DeWitt’s car in the parking lot. Both detectives were dressed in

plain clothes but had identifying badges hanging around their necks.

The detectives observed DeWitt walking towards the south side of the

store then back to the north entrance where he had initially entered.

Ultimately, DeWitt walked to the hygiene section of the store where the

detectives observed that he “appeared to be looking . . . for somebody.”

The detectives decided to confront DeWitt and take him outside to

his car to talk to him about their suspicion that he was selling drugs.

They approached DeWitt in an aisle, and one or both of the officers took

DeWitt by the arm. 2 Detective Morel pulled out his badge and advised

DeWitt he was a detective and wanted to talk to him outside the store

about a drug investigation. DeWitt claimed neither officer presented an

identification badge. DeWitt immediately resisted the confrontation by

breaking free from their grasp as if he intended to run. The detectives

promptly responded by taking him to the ground and handcuffing him.

DeWitt’s head was injured when it hit the floor during the arrest.

The K–9 unit arrived at the Walmart parking lot to perform a free

air sniff of the Lincoln. The dog signaled that there were drugs in the

vehicle, and a search warrant was subsequently obtained for the vehicle.
Officers discovered a pound of marijuana in the trunk of the car. The

2At trial, Detective Morel testified that Detective Westbay first took hold of
DeWitt’s elbow. He further testified DeWitt attempted to break free from his own grasp
and run past Detective Westbay. At the suppression hearing prior to trial, Detective
Morel testified only to his own action in taking hold of DeWitt’s right arm. Cross-
examination did not explore the discrepancy, and no other part of the record clarifies
the facts. Additionally, the district court did not make a factual finding. Because we
give deference to the district court’s credibility determinations, we find Detective Morel’s
modified statement at the trial indicates the level of force used was generally the
grabbing of DeWitt’s right arm to secure his presence with the officers.
 4

State charged DeWitt with possession with intent to deliver, violation of

the drug tax stamp act, and interference with official acts.

DeWitt filed a motion to quash the arrest and a motion to suppress

evidence obtained during the search of his vehicle. DeWitt also filed a

motion to compel disclosure of the identity of the confidential informant.

After an evidentiary hearing, the district court denied the motions. The

court found the detectives had reasonable suspicion DeWitt was involved

in a drug crime at the time of the encounter based on evidence that had

been corroborated independently of the confidential informant’s report as

well as DeWitt’s conduct in the store, including his resistance to the

encounter. The court further determined the facts did not necessitate

the disclosure of the confidential informant’s identity because the

informant was not a participant in or witness to the alleged crimes, and

DeWitt did not otherwise make a sufficient showing that the informant’s

identity would be helpful to his defense to any issue or claim. The case

proceeded to a bench trial, and the district court found DeWitt guilty of

all three counts.

DeWitt appealed and raised four issues. First, he asserted the

officers’ conduct in physically restraining him without particularized

reasonable suspicion that he posed a safety threat was a violation of his

right to be protected from unreasonable seizures under the Fourth

Amendment to the United States Constitution and article I, section 8 of

the Iowa Constitution. Second, he argued the district court erred in

finding sufficient evidence supporting the charge for possession of drugs

with intent to deliver because the court wrongly inferred that he had

knowledge of the drugs in the car he was driving. Third, he asserted

there was insufficient evidence to support the charge of interference with

official acts because neither Detective Morel nor Detective Westbay
 5

engaged in an “act which is within the scope of the lawful duty or

authority of that officer.” See Iowa Code § 719.1 (2007). Finally, he

claimed ineffective assistance of trial counsel.

We transferred the case to the court of appeals. The court of

appeals affirmed the district court, specifically finding no constitutional

violation because “the officers took reasonable precautionary actions for

their own protection as well as for the protection of the public.” The

court of appeals also determined the State had presented substantial

evidence to prove DeWitt’s constructive possession of the drugs

independent of the confidential informant’s tip that the drugs were in the

car DeWitt drove to the store. It declined to address the ineffective-

assistance-of-counsel claim. We granted DeWitt’s application for further

review.

II. Standard of Review.

DeWitt requests we review both his constitutional claim that he

was subject to an unreasonable seizure and his claim there was

insufficient evidence in the record to convict him. We review claims the

district court failed to suppress evidence obtained in violation of the

federal and state constitutions de novo. State v. Pals, 805 N.W.2d 767,

771 (Iowa 2011). Claims of insufficient evidence to support a conviction

are reviewed for errors at law. State v. Jorgensen, 758 N.W.2d 830, 834

(Iowa 2008). The court’s findings of guilt are binding if we find they were

supported by substantial evidence. Id. “Evidence is substantial if it

would convince a rational trier of fact the defendant is guilty beyond a

reasonable doubt.” Id.

III. Preservation of Error.

At the outset, the State asserts the issue of reasonable force

permitted under article I, section 8 of our state constitution is not
 6

preserved for our review. Although DeWitt raised both the State and

Federal Constitutions in his motions before the district court, the court

did not include separate findings under article I, section 8 from its

findings under the Fourth Amendment. The State argues DeWitt’s

failure to file a motion for enlargement of findings is fatal to his claim

under the Iowa Constitution.

We do not review issues that have not been raised or decided by

the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002). However, when both constitutional provisions are raised by a

party, we may review arguments raised under both constitutions.

Compare King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (noting “[w]hen

there are parallel constitutional provisions in the federal and state

constitutions and a party does not indicate the specific constitutional

basis, we regard both federal and state constitutional claims preserved”).

Even though defendant is seeking reversal of the district court, we may

affirm the district court upon any ground that would properly support

the ruling, as long as it was one raised by the defendant, even if it is not

a ground on which the court based its holding. State v. Maxwell, 743

N.W.2d 185, 192 (Iowa 2008). Thus, in this case, we may review the

claim of unreasonable force under both the State and Federal

Constitutions.

Nevertheless, both parties make arguments using only the federal

constitutional standard for unreasonable seizures. Although we have

discretion to consider a different standard under our state constitution,

neither the State nor DeWitt suggest a different state analysis or offer

any reasons for a separate analysis. See Pals, 805 N.W.2d at 771–72

(holding, even when a party has not proposed a different standard for

interpreting a state constitutional provision, we may apply the standard
 7

more stringently than the federal caselaw). We decline to consider a

different state standard under the circumstances and resolve DeWitt’s

state and federal unreasonable seizure claims under the existing federal

standards. State v. Dudley, 766 N.W.2d 606, 624 (Iowa 2009); see also

State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel, J., specially

concurring) (“In raising a constitutional claim under the state

constitution, counsel should do more than simply cite the correct

provision of the Iowa Constitution. . . . [T]he adjudicative process is best

advanced on reasoned argument which has been vetted though the

adversarial process.”).

IV. Analysis.

A. Suppression of Evidence. DeWitt first argues the court of

appeals erred in finding the police conduct inside the store was

reasonable. He asserts his Fourth Amendment guarantee to be free from

unreasonable seizures was violated because the officers were not

authorized to use physical force to stop him for questioning. DeWitt does

not argue the police had no constitutional basis to stop him. Instead,

DeWitt primarily argues the officers used an unconstitutional method of

carrying out the seizure by immediately grabbing his arm and attempting

to physically remove him from the store for questioning. To resolve this

issue, we must consider the degree of physical force law enforcement

may use in perfecting a stop based on reasonable suspicion.

1. General parameters of Fourth Amendment protection from

unreasonably forceful seizures. The Fourth Amendment “protects people

from unreasonable government intrusions into their legitimate

expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97

S. Ct. 2476, 2481, 53 L. Ed. 2d 538, 546 (1977), abrogated on other

grounds by California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982,
 8

1991, 114 L. Ed. 2d 619, 633–34 (1991). Yet, this protection does not

prohibit police from temporarily detaining an individual when they have

reasonable grounds to believe criminal activity is afoot. See Terry v.

Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968);

see also 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth

Amendment § 9.2, at 283 (4th ed. 2004) [hereinafter LaFave]. The

rationale for allowing such a stop on less than probable cause is to allow

police to “confirm or dispel suspicions of criminal activity through

reasonable questioning.” State v. Kreps, 650 N.W.2d 636, 641 (Iowa

2002). Thus, when police temporarily detain an individual pursuant to a

reasonable suspicion of a crime, a “seizure” for purposes of the Fourth

Amendment has occurred, and the seizure must be tested under the

Fourth Amendment for reasonableness. Id. This seizure is commonly

known as a Terry stop.

The right to make an investigatory stop “necessarily carries with it

the right to use some degree of physical coercion or threat thereof to

effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872,

104 L. Ed. 2d 443, 455 (1989). Any use of physical force, however, is

subject to the standard of reasonableness under the Fourth Amendment.

Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d

1, 7–8 (1985) (stating a seizure must be reasonable in “how it is carried

out”). Thus, law enforcement is not prohibited from using physical force

in effecting an investigatory stop, but each seizure must be scrutinized

for reasonableness under the particular circumstances at the time of the

stop. Id. at 8–9, 105 S. Ct. at 1700, 85 L. Ed. 2d at 8.

Several guiding principles for reasonableness of force have been

established over time. First, the test for reasonableness of police conduct

“requires a careful balancing of ‘ “the nature and quality of the intrusion
 9

on the individual’s Fourth Amendment interests” ’ against the

countervailing governmental interests at stake.” Graham, 490 U.S. at

396, 109 S. Ct. at 1871, 104 L. Ed. 2d at 455 (quoting Garner, 471 U.S.

at 8, 105 S. Ct. at 1699, 85 L. Ed. 2d at 7). This balancing of interests is

consistent with search-and-seizure analysis in other contexts as the

crucial tenet under the Fourth Amendment. See Michigan v. Summers,

452 U.S. 692, 701 n.12, 101 S. Ct. 2587, 2593 n.12, 69 L. Ed. 2d 340,

348 n.12 (1981). The balance recognizes the importance of both

individual liberty and law enforcement’s duty to preserve their and the

public’s safety.

Second, the Fourth Amendment does not require officers to risk

their lives when encountering a suspect they reasonably believe is armed

and dangerous. United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir.

1993). Nor does it “require a policeman who lacks the precise level of

information necessary for probable cause to arrest to simply shrug his

shoulders and allow a crime to occur or a criminal to escape.” Adams v.

Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616

(1972). Thus, the inherent danger surrounding an investigatory stop

may justify more intrusive methods of detaining an individual. See

Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996).

Third, the force used to detain a suspect during an investigatory

stop must be limited to what is necessary to accomplish the goals of the

detention. Thus, the amount of force necessary to investigate the crime

that justified the stop, maintain the status quo, and ensure the officers’

and others’ safety will vary depending on the facts and circumstances of

each case. See United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th

Cir. 1999) (citing United States v. Hensley, 469 U.S. 221, 235–36, 105

S. Ct. 675, 683–84, 83 L. Ed. 2d 604, 616 (1985)). Although not all
 10

seizures require probable cause to be reasonable, reasonable suspicion of

criminal activity generally justifies only a narrow deviation from the

Fourth Amendment’s requirement for a warrant. See Florida v. Royer,

460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 237 (1983).

Thus, a seizure justified by reasonable suspicion must be minimally

intrusive, United States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637,

2645, 77 L. Ed. 2d 110, 122 (1983), and “[t]he scope of the detention

must be carefully tailored to its underlying justification,” Royer, 460 U.S.

at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d at 238. If an investigative stop is

too long in duration or more invasive than necessary to accomplish the

goals of the investigation, the stop will become a de facto arrest. United

States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d

605, 615 (1985). Of course, an arrest without probable cause is illegal,

and identifying the fine contours between an arrest and an investigatory

detention creates “difficult line-drawing problems.” Id. Despite such

limitations, however, the general trend in federal courts “has led to the

permitting of . . . measures of force more traditionally associated with an

arrest than with investigatory detention.” United States v. Tilmon, 19

F.3d 1221, 1224–25 (7th Cir. 1994). As a result, identical police conduct

can be an arrest under some circumstances and a mere stop in others.

Such difficulty with the doctrinal flexibility of the reasonableness

standard underscores the importance of analyzing the totality of the

circumstances in each case. Garner, 471 U.S. at 8–9, 105 S. Ct. at 1700,

85 L. Ed. 2d at 8.

Finally, the Supreme Court has established one bright-line rule:

the use of deadly force to stop an unarmed, nondangerous suspect is

never constitutionally reasonable. Id. at 11, 105 S. Ct. at 1701, 85

L. Ed. 2d at 9–10. In general, to be reasonable, the force applied must be
 11

proportionate to the need for the force raised by the circumstances. Lee

v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002).

Therefore, a stop supported by reasonable suspicion of criminal

activity must be minimally intrusive, but physical force used to detain a

suspect believed to be a threat to safety is reasonable if the force used is

proportional to the threat presented. A suspect does not have the

freedom to walk away from a proper investigatory detention.

2. Application of constitutional standard to facts. DeWitt argues

two violations of his Fourth Amendment rights occurred during the stop.

First, he argues the officers did not have the authority under Terry to

grab his arm with only reasonable suspicion that he was involved in a

drug delivery. He asserts the officers did not have a reasonable belief he

was carrying a weapon and could only assert their authority over him

under the Fourth Amendment by patting him down with a particularized

belief he was carrying a weapon. Second, he argues the officers used

unreasonable force to continue the detention when they tackled him to

the floor.

In determining whether a particular seizure is reasonable, we apply

an objective standard to the facts available to the officer at the time of

the encounter to decide whether the officer was justified in believing a

particular amount of force was necessary to carry out the seizure. Terry,

392 U.S. at 21–22, 88 S. Ct. 1880, 20 L. Ed. 2d at 906. We view the

facts from the perspective of a reasonable officer on the scene, not one

with the illumination of hindsight. Graham, 490 U.S. at 396, 109 S. Ct.

at 1872, 104 L. Ed. 2d at 455–56. Additionally,

[t]he calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense,
 12
uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.

Id. at 396–97, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455–56. The extent of
the intrusion is considered first. See Garner, 471 U.S. at 8–9, 105 S. Ct.

at 1700, 85 L. Ed. 2d at 8. We examine the police method and the extent

the person’s liberty was restricted by that method in light of the specific

circumstances justifying the use of such force. Lambert, 98 F.3d at

1185. Some factors that are relevant to proportionality of the force used

include “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. 3 More serious
offenses may justify a greater imposition of force. See Lee, 284 F.3d at

1198. Additionally, an uncooperative suspect who is attempting to flee

justifies the imposition of more force. See Lambert, 98 F.3d at 1189.

The district court found the officers had reasonable grounds to

believe DeWitt was involved in the delivery of illegal drugs. It relied upon

the officers’ experience as narcotics investigators to conclude the officers

had a reasonable belief that DeWitt, as a suspected dealer, posed a risk
of flight and harm to other customers as long as he was in the store.

Although the officers did not initiate a pat down of DeWitt to search for

3Although typically the Fourth Amendment is substantively associated with the
protected interest in privacy from government intrusion, it is also recognized
procedurally as one of two primary sources of a private cause of action for abusive
government conduct. Graham, 490 U.S. at 394, 109 S. Ct. at 1871, 104 L. Ed. 2d at
454; 4 LaFave § 9.2 n.118, at 314. Although excessive force claims are often brought as
civil rights claims under 42 U.S.C. § 1983, the cases are analyzed for a violation of the
claimant’s constitutional rights by balancing the governmental interest against the
individual’s right to be free from invasion. Because the reasonableness-of-force
analysis is most often employed in § 1983 cases alleging an unreasonable seizure under
the Fourth Amendment, we will apply the facts of this case to the standard using these
cases as persuasive authority.
 13

weapons, the court found credible the officers’ testimony that they

believed he might run from them and that their subsequent pursuit

could risk harm to other customers in the store. The court, therefore,

found the physical force used to restrain DeWitt, both before and after he

resisted the officers’ detention, was reasonable.

DeWitt asks that we craft a clear rule that officers cannot stop a

person for the purpose of asking questions of the person to determine if

criminal activity is afoot by physically grabbing the person. DeWitt

argues grabbing an individual for whom the police have reasonable

grounds to conduct an investigation is per se unreasonable, especially

when the officers do not have any individualized suspicion that the

individual has a weapon.

At the outset, we reject the adoption of a per se rule prohibiting

police from grabbing the arm of a suspect to stop and briefly detain the

person to obtain an explanation for suspicious circumstances

surrounding the stop. The right to make an investigatory stop

“necessarily carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109

S. Ct. at 1872, 104 L. Ed. 2d at 455. Thus, it is necessary to assess

every fact and circumstance of the situation in applying the

constitutional standard of reasonableness. See Scott v. Harris, 550 U.S.

372, 383, 127 S. Ct. 1769, 1777–78, 167 L. Ed. 2d 686, 696 (2007)

(indicating no easy-to-apply legal test exists to determine reasonableness

of force under the Fourth Amendment).

DeWitt’s position that the force used in this case was unreasonable

focuses almost exclusively on his right to personal liberty “ ‘free from

arbitrary interference by law officers.’ ” Maryland v. Wilson, 519 U.S.

408, 411, 117 S. Ct. 882, 885, 137 L. Ed. 2d 41, 46 (1997) (quoting
 14

Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 332, 54

L. Ed. 2d 331, 336 (1977)). Certainly, a person shopping in a store has a

strong interest in freedom from being approached and grabbed by the

arm by plainclothes police officers prior to the time the police officers

make any inquiry of the person to confirm or deny their reasonable

suspicion of criminal activity. Yet, reasonableness of such an encounter

depends on the balance of the individual right at stake against the public

interest at stake, not just the existence of the individual right.

Additionally, the balance here requires the nature of the competing

interests on each side of the scale to be evaluated.

With respect to the individual right to personal liberty at stake, we

recognize the officers were permitted to stop and detain DeWitt based on

their reasonable suspicion of criminal activity. Thus, a person’s freedom

of movement can be properly curtailed once police have reasonable

suspicion, and in this case, we must consider the degree to which the

initial grab may have further intruded on the right at stake in the

balancing process.

In the context of an automobile stop, the United States Supreme

Court has held that, when police validly stop a vehicle for a traffic

violation, the additional intrusion imposed on the driver when ordered to

step outside the vehicle is only de minimis and the additional intrusion

ordering passengers out of the vehicle is minimal. Wilson, 519 U.S. at

412, 414–15, 117 S. Ct. at 885–86, 137 L. Ed. 2d at 46, 48. Thus,

minimal intrusions that accompany a stop do not necessarily add much

weight to the personal liberty side of the scale. Additionally, while a

person’s arm can be grabbed in a violent and intrusive manner, it can

also be grabbed as a nonthreatening gesture or benign means of

ushering the person to a specific location. A violent grab would
 15

constitute a greater intrusion than a grab that serves to usher or direct a

person to a different location. In this case, there was no evidence the

police officers violently grabbed DeWitt’s arm. Thus, in balancing the

personal liberty, the additional intrusion occasioned when police grab the

arm of a person stopped for reasonable suspicion of criminal activity in a

nonviolent manner is minimal.

Furthermore, the additional intrusion that would result from

moving a Terry stop from inside a store into the parking lot of the store

would be minimal, much like the de minimis intrusion of asking a

motorist to step outside his or her vehicle during a traffic stop. Mimms,

434 U.S. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337. In this case,

DeWitt had just parked his vehicle in the parking lot of the store, and the

police were only requesting that he return to that location for

questioning. In Terry, the police officer who made the stop not only

grabbed the defendant at the point of the stop on a sidewalk, but he also

then ordered him and his two accomplices from the sidewalk into an

adjacent store. 392 U.S. at 7, 88 S. Ct. at 1872, 20 L. Ed. 2d at 897. We

conclude the intrusion imposed on DeWitt up to the point in time when

the officers grabbed his arm to usher him outside the store was minimal.

On the other side of the balance, the State asserts two primary

public interests supported the police officers’ actions in grabbing

DeWitt’s arm. In particular, officer safety was a weighty concern, as was

the general safety of the other customers in the store. The suspected

criminal activity involved drug dealing, which is a serious crime for

which offenders often run from the police. Drug dealers are also

generally known to carry weapons, which the police officers in this case

indicated was a concern. See Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20

L. Ed. 2d at 909 (recognizing an officer “need not be absolutely certain
 16

that the individual is armed; the issue is whether a reasonably prudent

man in the circumstances would be warranted in the belief that his

safety or that of others was in danger”); see also Navarrete-Barron, 192

F.3d at 791 (recognizing officers did not use unreasonable force when

approaching stopped suspected drug dealer’s vehicle with weapons

drawn because drug trafficking “often is accompanied by dangerous

weapons”); United States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987)

(holding police were justified in frisking narcotics suspect because

weapons are “part and parcel for the drug trade”); United States v. Post,

607 F.2d 847, 851 (9th Cir. 1979) (holding it is not unreasonable to

believe a narcotics dealer might be armed); Carmouche v. State, 10

S.W.3d 323, 330 (Tex. Crim. App. 2000) (concluding an officer’s belief a

suspect is armed and dangerous may be predicated on the nature of the

suspected criminal activity). But see Upshur v. United States, 716 A.2d

981, 984 (D.C. 1998) (“Although we have recognized that ‘drugs and

weapons go together,’ that connection standing alone is insufficient to

warrant a police officer’s reasonable belief that a suspect is armed and

dangerous, and we have never so held.” (quoting Griffin v. United States,

618 A.2d 114, 124 (D.C. 1992))).

We reject DeWitt’s claim that police needed an individualized belief

he was carrying a weapon rather than acting on general knowledge that

most drug dealers carry weapons to make deliveries. Although the

detectives did not know for sure whether DeWitt carried a weapon, their

prior experience in narcotics investigations caused them to believe he

could be a volatile suspect and the investigation would most safely be

conducted outside the store. It is not our task to second-guess the

detectives’ assessment of DeWitt as dangerous or volatile based on the

crime he was suspected of and his conduct leading up to the stop. See
 17

Sharpe, 470 U.S. at 686, 105 S. Ct. at 1575, 84 L. Ed. 2d at 616 (noting

courts should “take care to consider whether the police are acting in a

swiftly developing situation, and in such cases the court should not

indulge in unrealistic second-guessing”).

On balance, the police conduct up to the point of stopping DeWitt

and taking hold of his arm was reasonable. The interests of the State

were superior to the liberty interests of DeWitt. Accordingly, we hold the

police officers did not violate the search-and-seizure clause of our State

and Federal Constitutions when they made a Terry stop for suspected

drug dealing, in a store occupied by customers and employees, by

grabbing DeWitt by the arm for the purpose of escorting him outside the

store to obtain an explanation for the suspicious circumstances. We

next turn to consider all the circumstances to determine if excessive

force was used when police took DeWitt to the ground and placed

handcuffs on him.

The interests of the State that justified the police action in

grabbing DeWitt’s arm for the purpose of escorting him to the parking lot

continue to be relevant in determining if police were justified in tackling

him and placing him in handcuffs. Of course, the intrusion of DeWitt’s

personal liberty was substantially impacted by the aggressive police

actions. This intrusion added greater weight to the personal liberty side

of the scale, and we must consider whether the additional circumstances

added any weight to the public interest side of the scale.

Generally, physical force to detain a suspect is reasonable when

the suspect refuses to stop when ordered to do so. See United States v.

Weaver, 8 F.3d 1240, 1244 (7th Cir. 1993) (holding that tackling of

suspect was not excessive when suspect took evasive action immediately

upon encountering police, broke free and ran after officer grabbed his
 18

jacket, and ignored officer’s requests to stop); Tom v. Voida, 963 F.2d

952, 957–58 (7th Cir. 1992) (concluding forcible detention was

reasonable because suspect’s own evasive actions create the need for

those steps). In this case, the fear the two officers had that justified

grabbing DeWitt’s arm—fear of flight when approached—quickly

transformed into reality. Additionally, the officers feared he may be

armed with a weapon and become a serious danger to others in the store.

Consequently, the State’s interests were quickly elevated, and these

heightened interests justified a quick response by police. In the split

second the officers were given to respond when DeWitt broke free from

their grasp, they decided to further detain him by taking him to the

ground rather than allowing him to run out of a crowded store and into

the parking lot. See Graham, 490 U.S. at 397, 109 S. Ct. at 1872, 104

L. Ed. 2d at 456 (recognizing reasonableness must take into account that

“police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving”).

As a result, we find the officers’ conduct in tackling DeWitt and

placing him in handcuffs was objectively reasonable. The attempt to flee

justified the additional force. We conclude the seizure was reasonable

under the circumstances.

B. Sufficiency of Evidence.

1. Possession with intent to deliver. The district court convicted

DeWitt of possessing marijuana with the intent to deliver it in violation of

Iowa Code section 124.401. Under the statute, the State must prove the

defendant “exercised dominion and control over the contraband, had

knowledge of the contraband’s presence, and had knowledge the material
 19

was a narcotic.” 4 Maxwell, 743 N.W.2d at 193. The location in which

the substance is found guides our determination of possession. In this

case, marijuana was discovered in the vehicle DeWitt drove rather than

on DeWitt’s person. As a result, the State had to prove DeWitt was in

constructive, as opposed to actual, possession of the marijuana in the

car. See id. Our standard for proof of constructive possession requires

the State to show the defendant had knowledge of the controlled

substance as well as the authority or right to control it. Id.

In State v. Reeves, we said:

If the premises on which such substances are found are in
the exclusive possession of the accused, knowledge of their
presence on such premises coupled with his ability to
maintain control over such substances may be inferred.
Although no further proof of knowledge by the State is
required in cases of exclusive possession by the accused the
inference of knowledge is rebuttable and not conclusive. But
where the accused has not been in exclusive possession of
the premises but only in joint possession, knowledge of the
presence of the substances on the premises and the ability

4In its brief, the State argues the definition provided in Black’s Law Dictionary
for “dominion” implies a defendant must have both title and possession in the
contraband. Viewing a “real proprietary interest . . . in contraband” as impossible, Long
v. United States, 623 A.2d 1144, 1148 (D.C. Cir. 1993), the State invites this court to
disavow the requirement of dominion and instead focus upon the issue of control. In
prior cases, we have indicated evidence resembling a proprietary interest may be
necessary for a finding of constructive possession, although we emphasized that “an
immediate right to control” distinguished cases when constructive possession should be
found from cases when the defendant had a “raw physical ability to exercise control
over the controlled substance.” State v. Bash, 670 N.W.2d 135, 138–39 (Iowa 2003);
accord State v. Atkinson, 620 N.W.2d 1, 5 (Iowa 2000) (“While it seems anomalous to
look at a defendant’s ‘right’ to control illegal drugs in order to establish possession, that
concept basically distinguishes a defendant’s raw physical ability to exercise control
over contraband simply because of the defendant’s proximity to it and the type of rights
that can be considered constructive possession.”). In both cases, the drugs at issue
were located within the personal property of a person other than the defendant. See
Bash, 670 N.W.2d at 136–37 (marijuana located in defendant’s husband’s cardboard
box); see also Atkinson, 620 N.W.2d at 2–3 (methamphetamine located in another
person’s fanny pack). DeWitt does not argue he lacked title in the contraband. Thus,
we need not reach the issue of the exact meaning and significance of “dominion” in this
appeal.
 20
to maintain control over them by the accused will not be
inferred but must be established by proof.

209 N.W.2d 18, 23 (Iowa 1973). Thus, possession may be inferred if the
defendant is in exclusive possession of the premises in which the

contraband was located. Vehicles, however, alter the exclusive

possession rule because of its modern role as a shared accommodation.

We will not recognize an inference creating a rebuttable presumption of

possession involving vehicles when it has been established that multiple

individuals had equal access to the vehicle. State v. Kemp, 688 N.W.2d

785, 788 (Iowa 2004). When there is joint control, we require additional

evidence to connect the defendant to the controlled substance sufficient

to support a conviction for possession. Id.

In this case, the uncontested evidence showed five other

individuals besides DeWitt had access to the Lincoln Town Car in

addition to a sixth key under the front license plate of the vehicle.

Because DeWitt was not in exclusive control of the vehicle, sufficient

evidence must exist that he had knowledge of the marijuana in the car

and had the ability to maintain control over it. Id. at 789; see also

Maxwell, 743 N.W.2d at 194 (finding insufficient evidence that defendant

was in exclusive possession of car he was driving when defendant did not

own it). Joint control cannot create a rebuttable presumption of

possession as can facts showing exclusive control of the vehicle.

However, a determination of constructive possession still requires we

draw some inferences based on the facts of the case. Maxwell, 743

N.W.2d at 193. We have established several factors as guides in

establishing proof of possession. These factors include:

(1) incriminating statements made by the person; (2)
incriminating actions of the person upon the police’s
discovery of a controlled substance among or near the
person’s personal belongings; (3) the person’s fingerprints on
 21
the packages containing the controlled substance; and (4)
any other circumstances linking the person to the controlled
substance. Further, when the premises is a vehicle, the
court may also consider these additional factors: (1) was the
contraband in plain view; (2) was it with the person’s
personal effects; (3) was it found on the same side of the car
or immediately next to the person; (4) was the person the
owner of the vehicle; and (5) was there suspicious activity by
the person.

Id. at 194 (citation omitted). The factors are not exclusive, and all facts

and circumstances are considered to determine whether a reasonable

inference is created that the defendant had knowledge and control over

controlled substances. Id.

DeWitt correctly points out that none of the “specific factors” from

Maxwell are expressly met. He made no incriminating statements. He

was not present when the police discovered the marijuana, and he

accordingly made no incriminating actions. DeWitt’s fingerprints were

not on the marijuana or its packaging. Additionally, the marijuana was

located in the trunk of the car and not in plain view. The marijuana was

not found with DeWitt’s personal effects. Because the marijuana was

found in the trunk of the car, it was not found on DeWitt’s side of the car

or immediately next to him. Finally, DeWitt does not own the vehicle; his

father does.

DeWitt argues the court of appeals erred by applying a “catchall”

factor to conclude the facts and circumstances of the case provided

sufficient evidence of possession. He further argues that “factors that

are dredged up under the catchalls should be connected to at least one of

the specific factors [articulated in Maxwell].” As we have said before, the

factors for determining constructive possession are not exclusive. See id.

However, any relevant facts and circumstances that are considered in

addition to the specific factors, whether it is circumstantial or direct

evidence of the crime, must be sufficient to raise a fair inference of guilt.
 22

State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). The evidence of

guilt must generate more than suspicion, speculation, or conjecture. Id.

Thus, we turn to consider the accompanying circumstances.

DeWitt was the most recent driver of the car. This circumstance is

relevant to the constructive possession analysis, even if it does not

amount to exclusive possession entitling the State to the inference

discussed in Reeves. See Maxwell, 743 N.W.2d at 194. DeWitt was also

a frequent driver of the car: he drove it six days a week for work and was

evidently planning to drive it to a fishing expedition with a friend. While

DeWitt and his father testified that persons other than DeWitt had

access to the vehicle and may have occasionally operated it, DeWitt’s

frequent and recent use of the car remains pertinent, though not

dispositive. Cf. State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003)

(“[P]roximity to the drugs, though pertinent, is not enough to show

control and dominion.”).

The State also produced evidence that DeWitt exhibited

“suspicious activity.” DeWitt drove out of his way to come to the Iowa

Walmart when he needed to be at work soon in Illinois. Although he

claimed this was done as a favor to a friend, he could not remember the

friend’s name. The State also produced evidence that once he arrived,

DeWitt paced the main aisle, “looking around as if he was attempting to

meet somebody.” Although DeWitt testified he went to Walmart to

procure fishing equipment, he never approached the fishing aisle. See

United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988) (noting a

defendant’s explanation for conduct that is “so inherently implausible as

to justify the inference that it was largely fabricated . . . is ‘part of the

overall circumstantial evidence from which possession and knowledge

may be inferred’ ” (quoting United States v. Phillips, 496 F.2d 1395, 1398
 23

n.6 (5th Cir. 1974))). Indeed, credibility determinations are an essential

function of the fact finder. In this case, the district court found DeWitt’s

reasons for being inside the Walmart not credible.

Moreover, DeWitt’s resistance of Detectives Morel and Westbay

provides important evidence of conduct consistent with guilt. See

Maxwell, 743 N.W.2d at 194 (holding that the fact that defendant

“continued [to drive] for approximately one-hundred feet until pulling

into the driveway of his residence” supported a finding of constructive

possession); Carter, 696 N.W.2d at 40 (observing that failure to stop

immediately is suspicious activity). Of course, not all responses to police

conduct support inferences of knowledge and possession. See Royer,

460 U.S. at 498, 103 S. Ct. at 1324, 75 L. Ed. 2d at 236 (holding that,

although a police officer is free to question or approach a suspect without

grounds for a stop, the suspect’s choice to walk away and not listen to

the officer “does not, without more, furnish those grounds”). On the

other hand, unreasonable behavior can be relevant. See Illinois v.

Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570,

576 (2000) (“Headlong flight—wherever it occurs—is the consummate act

of evasion: It is not necessarily indicative of wrongdoing, but it is

certainly suggestive of such.”). In this case, we have found the officers’

conduct in taking DeWitt by the arm to conduct their investigation

outside the store was reasonable. Detective Morel stated that he wanted

to ask DeWitt some questions outside about a drug investigation prior to

DeWitt attempting to break away from the officers. The officers

interpreted this reaction as attempted flight. Thus, DeWitt’s reaction in

attempting to break away and flee caused increased suspicion and

further evidence DeWitt was involved with the drug delivery they

suspected before approaching him.
 24

Finally, we turn to the testimony at trial by Detective Gilbert

Proehl, the detective leading the unit, and Detective Morel indicating they

received information from a confidential source that DeWitt was planning

to make a drug delivery at Walmart and that the information they

received was corroborated by the circumstances they observed when

DeWitt arrived at the store. The State did not call the confidential

informant as a witness at trial, and DeWitt claims the testimony of the

officers cannot be considered in determining constructive possession

because it was hearsay. DeWitt also claims there is insufficient evidence

of constructive possession without the background evidence from the

confidential informant that he intended to sell drugs at the store rather

than purchase fishing equipment.

At trial, DeWitt objected to the testimony of Detective Proehl as

hearsay. The district court sustained the objection, but permitted

Detective Proehl to generally testify that he received information from a

confidential source to explain the reason police went to Walmart. See

Iowa R. Evid. 5.801(c) (defining “hearsay” as a statement offered to prove

the truth of the matter asserted, which excludes statements offered to

explain conduct); see also State v. Mitchell, 450 N.W.2d 828, 832 (Iowa

1990) (noting that a statement is not hearsay if it is offered only to

explain responsive conduct of the listener). This information was

relevant to show why the detectives approached DeWitt in the store

rather than another customer displaying similar behavior. Mitchell, 450

N.W.2d at 832 (recognizing if nonhearsay statements are used to prove

responsive conduct, such conduct must be relevant to some aspect of

State’s case). Detective Morel then testified about the specific

information provided by the confidential informant without objection by

DeWitt. Tamm, Inc. v. Pildis, 249 N.W.2d 823, 834 (Iowa 1976) (“[T]he
 25

proper rule to be adhered to in this state is that when hearsay evidence

which would be objectionable and incompetent when properly objected to

is admitted without objection and is relevant and material to an issue[,] it

is to be considered and given its natural probative effect as if it were in

law competent evidence. Its weight is to be determined by the trier of

fact by the same criteria as is employed in considering other competent

evidence.”). Consequently, the evidence was properly considered by the

district court and is properly considered for the purpose of determining

the sufficiency of the evidence supporting constructive possession.

Our review of substantial evidence to support a judgment for

conviction requires that we “ ‘view the “evidence in the light most

favorable to the State, including legitimate inferences and presumptions

that may fairly and reasonable be deduced from the record evidence.” ’ ”

Carter, 696 N.W.2d at 36 (quoting State v. Quinn, 691 N.W.2d 403, 407

(Iowa 2005)). Under the facts and circumstances of this case, we find the

evidence was sufficient to support DeWitt’s conviction. 5

5The State also argues that knowledge of the marijuana may be inferred based
on its value. Courts take differing approaches on this point. Compare Commonwealth
v. Garcia, 569 N.E.2d 385, 392 (Mass. 1991) (holding that the value of cocaine located
in the trunk of a car in joint possession was irrelevant to the element of possession),
with United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986) (holding that the
high value of drugs in a vehicle supported knowing possession because “it is unlikely
that the owner of the truck, or anyone else, would have left such a valuable substance
in the truck”). In Garcia, the Supreme Judicial Court of Massachusetts considered an
argument similar to the one the State puts forth here and said:
The Commonwealth contends that an additional factor pointing to
knowledge can be found in the fact that the cocaine was extremely
valuable. The Commonwealth argues that it is unlikely that anyone
would lend a vehicle containing such valuable contents unless the
borrowers knew of those contents, and that therefore a jury could infer
that both Heredia and Garcia knew of the cocaine. This argument is
simply another way of stating that one can infer knowledge of
contraband from its presence in a vehicle.
569 N.E.2d at 392. We find the approach taken by Massachusetts more persuasive.
Allowing the value of the drugs to support an inference of knowing possession risks
 26

V. Conclusion.

After considering all issues raised on appeal, 6 we affirm the

decision of the court of appeals and judgment and conviction of the

district court.

DECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT

AND SENTENCE OF DISTRICT COURT AFFIRMED.

All justices concur except Mansfield, J., who takes no part.

____________________________
collapsing the inquiry to one of proximity. Proximity is insufficient to support an
inference of knowledge and control in Iowa. See Atkinson, 620 N.W.2d at 3.
6The court of appeals decision stands as the final decision with respect to the
remaining two sufficiency-of-evidence claims as well as the ineffective-assistance-of-
counsel claim. See State v. Johnson, 784 N.W.2d 192, 193 n.1 (Iowa 2010).