IN THE COURT OF APPEALS OF IOWA
No. 17-0577
Filed March 7, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NATHANIEL SCOTT AKERS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Nicholas Scott, District
Associate Judge.
A defendant appeals his conviction for possession of marijuana, second
offense. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., McDonald, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
TABOR, Presiding Judge.
Nathaniel Akers appeals his conviction for possession of marijuana, second
offense. He argues the district court should have suppressed the marijuana
because the police officer did not have probable cause to stop his car. After
carefully reviewing the video-recording of the traffic stop, we agree the officer did
not have probable cause to believe Akers was violating the rear-lighting statute at
the time the officer signaled him to stop. Accordingly, we reverse the suppression
ruling.
Cedar Rapids police officer Nathan Baughan was part of a “selective
enforcement project” assigned to “monitor traffic flow” on the southeast side of the
city around 10:45 p.m. when he saw a green 1973 Buick LeSabre drive south at
the 100 block of Fifteenth Street, the same direction the marked squad car was
facing. Officer Baughan testified neither the Buick’s driver nor the passenger was
wearing a safety belt. The officer also testified that as he followed the Buick, he
noticed “it had a taillight out.” The officer further testified that when the Buick
stopped at the stop sign at Fifteenth Street and Second Avenue he could see the
driver’s side brake light “was out as well.”
The officer caught up with the Buick at the intersection of Fifteenth Street
and Seventh Avenue and activated his lights and sirens, signaling the driver to
stop. According to the officer, the Buick travelled about two-and-a-half blocks
before pulling over into “a proper parking spot.” As the driver parked the car, he
also honked his horn. The officer testified that the driver, Akers, and his passenger
“then exited the vehicle and started towards the address where it later turned out
that the driver actually lived.” But the video from the officer’s dashboard camera
3
does not show Akers moving away; rather it shows Akers walking toward the back
of his Buick to meet the officer where they appear to discuss the rear lamps.1
Officer Baughan then ordered Akers back to the driver’s seat and expressed his
displeasure concerning Akers’s decision to sound his horn.
Officer Baughan testified that when he “engaged the driver in conversation”
he could “plainly” smell fresh marijuana coming from either Akers or the car.
Officer Baughan also testified Akers “had marijuana on his person” and “actually
turned that over to me” by pulling it from his pocket. But the minutes of testimony
indicate the officer handcuffed Akers and took the marijuana from his pocket. The
marijuana weighed approximately eight grams. Akers told Officer Baughan he had
just purchased the marijuana and planned to smoke it.
Officer Baughan testified Akers asked why he was stopped, and Officer
Baughan “informed him both his taillight and his brake light and his seatbelt.”
Officer Baughan recalled Akers saying he didn’t think he needed to wear his
seatbelt because “his car was a 1973.” The officer testified he “corrected” Akers,
saying every vehicle manufactured after 1970 must have a shoulder and lap belt.
Defense counsel cross-examined the officer about the source of his belief
concerning the safety belt guidelines and directed the officer to Iowa Code section
321.445(1) (2016). The officer acknowledged on cross-examination he was not
able to determine if the Buick was equipped with a shoulder harness until he
“actually did the inspection of the vehicle.”
1
The audio on the exhibit is spotty as the officer’s microphone picks up only bits and
pieces of the conversation.
4
At the suppression hearing, defense counsel submitted a video of the traffic
stop. Defense counsel argued:
Upon review of that video, I believe that it’s clear that there
were no lights out on this vehicle. I will leave that for the Court to
review the video or make that determination factually, but I don’t
believe the video evidence supports the testimony of Officer
Baughan in regards to lights being out on this particular vehicle.
As for the seatbelt issue, counsel argued the officer was operating under a
mistaken understanding of the law.
In its suppression ruling, the district court wrote: “While there was much
emphasis placed on the seatbelts in the vehicle the court does not find it necessary
to reach that dispute.” Instead, the court rested its decision on the lighting issue.
The court reviewed the video and found “one segment of the defendant’s
passenger taillight was not illuminated. See Exhibit A at 22:50:18.[2] This
corroborates the officer’s testimony he observed the taillight was not illuminated
on the vehicle.” The court ruled the officer had probable cause to stop Akers’s
vehicle based on a violation of Iowa Code section 321.387.3
After a stipulated bench trial, the district court found Akers guilty of
possession of marijuana, second offense. He appeals that conviction by
challenging the suppression ruling.
2
The time on the video-recording identified in the suppression ruling was after the Buick
had pulled over to the curb.
3
This section states:
Every motor vehicle . . . shall be equipped with a lighted rear lamp or lamps,
exhibiting a red light plainly visible from a distance of five hundred feet to
the rear. All lamps and lighting equipment originally manufactured on a
motor vehicle shall be kept in working condition or shall be replaced with
equivalent equipment.
Iowa Code § 321.387.
5
We review constitutional claims de novo, making an “independent
evaluation of the totality of the circumstances as shown by the entire record.” State
v. Tague, 676 N.W.2d 197, 201 (Iowa 2004) (quoting State v. Turner, 630 N.W.2d
601, 606 (Iowa 2001)). We give deference to the district court’s credibility findings
but are not bound by them. Id. When it comes to viewing a video exhibit, we are
“equally as capable as the trial court”, and when an officer’s statements are
contradicted by the video, “we give them little weight in our de novo review of the
evidence.” See State v. Binette, 33 S.W.3d 215, 219 (Tenn. 2000).
Both the federal and state constitutions protect against unreasonable
searches and seizures. See U.S. Const. amend. IV; Iowa Const. art. I, § 8.4
Generally, an officer’s decision to stop a motorist is reasonable if the officer has
probable cause to believe the motorist violated a traffic law. State v. Pals, 805
N.W.2d 767, 773 (Iowa 2011). “Probable cause exists if the totality of the
circumstances as viewed by a reasonable and prudent person would lead that
person to believe that a crime has been or is being committed and that the arrestee
committed or is committing it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa
1990). The State bears the “burden to prove by a preponderance of the evidence
that the officer had probable cause to” make the stop. Tague, 676 N.W.2d at 201.
Even a minor traffic or equipment violation may give an officer reason for a
stop. See State v. Hoskins, 711 N.W.2d 720, 726 (Iowa 2006).
4
Iowa’s appellate courts may “construe a provision of our state constitution differently than
its federal counterpart, though the two provisions may contain nearly identical language
and have the same general scope, import, and purpose.” See State v. White, 887 N.W.2d
172, 175–76 (Iowa 2016). But we need only reach the Fourth Amendment to decide this
appeal. See id.
6
Akers argues the stop was improper because any problem with his rear
lamps could not be detected until the officer had already stopped the vehicle. The
defense agrees “the dash cam video from the officer’s vehicle indicates that part
of Akers’s passenger taillight was not illuminated. (Ex. A 22:50:18).” But Akers
emphasizes “the video also shows the taillight was illuminated when the vehicle
was in motion; it only fails to illuminate when in reverse and parked. (Ex. A.
22:48:40-22:50:18).”
The State defends the traffic stop, explaining that while the seatbelt issue5
originally prompted the officer to follow Akers, the officer also testified he saw a
taillight not working when the Buick was southbound on Fifteenth Street and noted
an inoperable brake light when the Buick stopped at a stop sign.
The video contradicts the officer’s recollection. See Scott v. Harris, 550
U.S. 372, 378 n.5 (2007) (allowing the video to “speak for itself” in a civil case
involving a vehicle chase). First, we find it telling that the defense—rather than the
State—offered the video of the incident as an exhibit at the suppression hearing.
Second, the officer testified he had not reviewed the dashboard camera video and
did not fully recall the events as they unfolded, for example, he was uncertain
whether there was another vehicle between his squad car and the Buick before
the officer started his pursuit.
Third, our own scrutiny of the video does not square with the officer’s
testimony that he could see rear-lighting glitches before he signaled for Akers to
stop. Officer Baughan testified a fixed dashboard camera cannot capture all the
5
The video apparently was not activated when the officer initially saw the Buick drive by.
7
images that an officer can see with his naked eye: “The camera doesn’t move, and
I do.” We have no doubt that is true, but the officer did not narrate any segment of
the video where he could see a lighting issue, from directly behind the Buick, that
would not be caught on the video. The officer agreed with defense counsel that
the camera would be “the most accurate reflection” of “anything within its view.”
Fourth, the video belied the officer’s testimony concerning Akers’s actions
after the stop. The officer recalled Akers starting to walk toward his house after
the stop and pulling the marijuana from his own pocket; the video does not show
either of those events occurred.
Fifth, the district court—which also viewed the video—found corroboration
of the officer’s testimony about the lighting violations based only on a moment in
the video that was after the Buick had pulled over to the curb and backed up into
a parking spot, well after the officer initiated the traffic stop.
On appeal, the State does not point to any minute mark on the video exhibit
to support the officer’s testimony about the rear-lighting violations. Instead, the
State argues even if Akers was correct in asserting the officer could not have seen
an inoperable taillight or any other violation until Akers parked the Buick, “there
was no seizure under the constitution until the defendant had exited his car and
the officer directed him back to his car.” The State relies on California v. Hodari
D., 499 U.S. 621, 626 (1991), for the proposition that a suspect is not seized until
he yields to authority. The State contends even if the officer’s pursuit was a show
of authority, Akers did not yield to authority—and therefore was not seized—until
he pulled over to the curb, left the vehicle, and returned to the driver’s seat on the
officer’s order.
8
We decide whether an officer’s actions amount to a “seizure” by examining
the totality of the circumstances. White, 887 N.W.2d at 176. The activation of a
patrol car’s emergency lights is a show of authority and may “imply a police
command to stop and remain.” Id. When a person’s deference to that show of
authority “takes the form of passive acquiescence” then the test for determining if
a seizure occurred is whether a reasonable person would have believed he was
free to leave, as described in United States v. Mendenhall, 446 U.S. 544, 554
(1980), rather than the question of submission to authority as discussed in Hodari
D., 499 U.S. at 626. See Brendlin v. California, 551 U.S. 249, 255 (2007).
Contrary to the State’s argument, Officer Baughan seized Akers when
Akers heeded the officer’s lights and sirens and pulled over to the curb. See State
v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013) (“A traffic stop is unquestionably a
seizure under the Fourth Amendment.”). Ackers passively acquiesced in Officer
Baughan’s show of authority by bringing his Buick to a stop. The malfunction in
one of the Buick’s six rear lamps, first visible when Akers placed the car in reverse
to finish parking, could not serve as an after-the-fact justification for the traffic stop.
Any probable cause to believe Akers had been driving the Buick in violation of
section 321.387 had to exist before the car was stopped. See id. at 293 (explaining
“purpose of a probable cause stop is to seize someone who has already committed
a crime”).
Because the officer did not have probable cause to stop Akers’s vehicle, all
evidence flowing from the stop is inadmissible. We reverse the district court’s
9
denial of the motion to suppress and remand for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.