IN THE SUPREME COURT OF IOWA
No. 16–0267
Filed April 6, 2018
STATE OF IOWA,
Appellee,
vs.
MICHAEL SCHEFFERT,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Joseph M. Moothart (motion to suppress) and Nathan A. Callahan (trial),
District Associate Judges.
The State seeks further review of a court of appeals decision
suppressing the State’s evidence. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Thomas J. Viner of Viner Law Firm, P.C., Cedar Rapids, for
appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, Brian Williams, County Attorney, and Molly Tomsha,
Assistant County Attorney, for appellee.
2
WIGGINS, Justice.
This appeal involves a decision by the district court denying a
motorist’s motion to suppress evidence obtained after an officer stopped
the motorist’s vehicle for being on a county access road after hours. At
trial, the district court convicted the motorist of possession of a
controlled substance in violation of Iowa Code section 124.401(5) (2015).
The motorist appealed, arguing the district court erred in denying his
motion to suppress. We transferred the case to the court of appeals,
which reversed the district court’s denial of the motorist’s motion to
suppress. The State filed an application for further review.
When we first considered the State’s application for further review,
we disagreed with the court of appeals’ reasoning, but we still found the
officer did not have probable cause or reasonable suspicion to stop the
motorist’s vehicle when it was on a county access road after hours. We
therefore vacated the decision of the court of appeals, reversed the
judgment of the district court, and remanded the case for a new trial.
Thereafter, we granted the State’s petition for rehearing and now
withdraw our original opinion. Upon further consideration of the parties’
arguments and the pertinent legal authorities, we find the officer had
probable cause to stop the motorist’s vehicle when it was on a county
access road after hours. Accordingly, we vacate the decision of the court
of appeals and affirm the judgment of the district court.
I. Background Facts and Proceedings.
On May 30, 2015, at approximately 12:37 a.m., Deputy Tim
Peterson with the Black Hawk County Sheriff’s Department observed a
vehicle on Beaver Valley Road in the Falls Access area. Falls Access is a
county conservation property open to the public for hunting and fishing.
Beaver Valley Road is a gravel road maintained by the county
3
conservation board. Deputy Peterson stopped the vehicle because he
believed Michael Scheffert, the driver, was committing a crime by being
in Falls Access after 10:30 p.m. Deputy Matthew Harris, who assisted
Deputy Peterson with the stop, testified the hours in which the public
may be in Falls Access is from 6 a.m. to 10:30 p.m.
After stopping Scheffert’s vehicle, Deputy Peterson obtained
Scheffert’s consent to search the vehicle. During the search, Deputy
Peterson found a marijuana pipe with residue and a prescription pill
bottle that had a clear plastic bag containing marijuana. Scheffert told
Deputy Peterson the marijuana belonged to him.
The State charged Scheffert with possession of a controlled
substance (marijuana), second offense, in violation of Iowa Code section
124.401(5). Scheffert moved to suppress the evidence seized from the
vehicle, contending the stop and search violated the Fourth Amendment
of the United States Constitution and article I, section 8 of the Iowa
Constitution.
At the hearing on the motion to suppress, Scheffert argued Deputy
Peterson lacked either probable cause or reasonable suspicion to justify
the stop. The thrust of Scheffert’s argument at the hearing was that
officials should have posted a sign displaying the park’s hours in order to
make his presence in Falls Access after hours illegal. Deputy Harris
testified there had been signage to identify Falls Access at the
intersection of Beaver Valley Road and North Union Road in the past, but
it never had park hours posted on it. Deputy Harris did not recall
whether there was a sign posted on May 30, the night of the stop.
According to his conversation with a Black Hawk County conservation
officer, there was not a sign posted on the day of the hearing on the
4
motion to suppress. There was no other evidence of signs regarding the
Beaver Valley Road in the Falls Access area.
The State argued Deputy Peterson had probable cause to initiate a
traffic stop because Scheffert was in a county park after hours. The
State relied on Deputy Harris’s testimony that the park closes at 10:30
p.m. The State also relied on sections 461A.46 and 350.5 1 of the Iowa
Code to establish Deputy Peterson had probable cause to stop Scheffert.
The State contended,
The signage on the night in question is irrelevant. It doesn’t
matter whether or not the sign was posted that night, and
[the State was] not aware of any authority that requires a
sign to be posted. The fact is that [Scheffert] was there after
hours.
The district court denied Scheffert’s motion to suppress. After a
trial on the minutes of testimony, the district court convicted Scheffert of
possession of a controlled substance (marijuana), second offense.
Scheffert appealed, arguing the district court erred in failing to suppress
the evidence. We transferred the case to the court of appeals. The court
of appeals reversed the denial of Scheffert’s motion to suppress. The
State sought further review, which we granted.
When we first considered the State’s application for further review,
we disagreed with the court of appeals’ reasoning, but we nevertheless
found the officer did not have probable cause or reasonable suspicion to
stop the motorist’s vehicle when it was on a county access road after
hours. We thus vacated the decision of the court of appeals, reversed the
judgment of the district court, and remanded the case for a new trial.
1The State also relied on section 805.8B, which provides that violating section
461A.46 is a misdemeanor. See Iowa Code § 805.8B(6)(b). Although section 805.8B
makes a violation of section 461A.46 a misdemeanor, it does not create an independent
ground for the officer to stop Scheffert.
5
The State filed a petition for rehearing, which we granted.
II. Issue.
We consider whether the stop of Scheffert’s vehicle was contrary to
the protections of the Fourth Amendment of the United States
Constitution or article I, section 8 of the Iowa Constitution.
III. Scope of Review.
Our review of constitutional claims is de novo. State v. Tague,
676 N.W.2d 197, 201 (Iowa 2004). We make an “independent evaluation
of the totality of the circumstances as shown by the entire record.” Id.
(quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)). We give
deference to the district court’s factual findings, but they do not bind us.
Id.
IV. Analysis.
At the hearing, the State relied on Iowa Code sections 461A.46 and
350.5 to establish Deputy Peterson had probable cause to stop
Scheffert’s vehicle for being on Beaver Valley Road in the Falls Access
area after 10:30 p.m. The State argued, “Deputy Peterson did have
probable cause to stop him because he was in a county park after closing
hours. The signage on the night in question is irrelevant.” The State
further contended it was “not aware of any authority that requires a sign
to be posted.” The State maintains this argument in its briefing on
appeal.
In its ruling on Scheffert’s motion to suppress, the district court
concluded “the stop of the defendant’s vehicle was based on specific and
articulable cause to reasonably believe that the defendant was operating
his vehicle in a county access area after hours,” and “the defendant’s
vehicle could legally be stopped as it was entering or approaching the
6
county access area at [1]2:37 a.m. on the only road into the area.”
Despite its conclusion, the district court acknowledged,
A sign that had been posted on Beaver Valley Road identified
Falls Access as a county access area. No park hours were
indicated on the sign. The sign may not have been up on
August 27, 2015[, which is when Scheffert filed his motion to
suppress] and was not up on the date of the [motion to
suppress] hearing.
The district court determined Scheffert violated the Code by entering
Falls Access at 12:37 a.m. regardless of whether there was a sign posted
to identify the county access area or the park hours. Thus, the district
court denied Scheffert’s motion to suppress.
In Tague, which we decided under the Iowa Constitution, we
applied the federal standards of probable cause and reasonable
suspicion under the Fourth Amendment to article I, section 8 of the Iowa
Constitution. Id. at 201, 204, 206. An officer has probable cause to stop
a motorist when he or she observes a violation of our traffic laws no
matter how minor the offense may be. Id. at 201. If the officer has
reasonable suspicion to believe criminal activity has occurred or is
occurring, he or she may stop a vehicle and briefly detain the driver for
investigatory purposes. Id. at 204. If the driver challenges the stop
claiming the officer did not have reasonable suspicion, it becomes the
State’s burden to “show by a preponderance of the evidence that the
stopping officer had specific and articulable facts, which taken together
with rational inferences from those facts, to reasonably believe criminal
activity may have occurred.” Id.
The State relies on sections 461A.46 and 350.5 of the Iowa Code to
support the stop. Section 461A.46 provides in relevant part,
Except by arrangement or permission granted by the
director or the director’s authorized representative, all
7
persons shall vacate state parks and preserves before 10:30
p.m. Areas may be closed at an earlier or later hour, of
which notice shall be given by proper signs or instructions.
Iowa Code § 461A.46.
Our court of appeals found this section was not applicable to
county conservation property open to the public for hunting and fishing
under the control of the county conservation board. We disagree with
the court of appeals’ interpretation of section 461A.46 for the reasons
stated later in this opinion.
The next section relied upon by the State is Iowa Code section
350.5. This section is applicable to county parks, such as the one where
the officer stopped Scheffert. See id. § 350.1. One of the powers of the
county conservation board is to make rules and regulations governing
county parks. The Code provides in relevant part,
The county conservation board may make, alter,
amend[,] or repeal regulations for the protection, regulation,
and control of all museums, parks, preserves, parkways,
playgrounds, recreation centers, and other property under
its control. The regulations shall not be contrary to, or
inconsistent with, the laws of this state. The regulations
shall not take effect until ten days after their adoption by the
board and after their publication as provided in section
331.305 and after a copy of the regulations has been posted
near each gate or principal entrance to the public ground to
which they apply. After the publication and posting, a
person violating a provision of the regulations which are then
in effect is guilty of a simple misdemeanor.
Id. § 350.5.
The State contends one of the rules allegedly made by the county
conservation board was a 10:30 p.m. closing time for the area where the
officer found Scheffert’s vehicle. The State argues if Scheffert was at that
location after closing time, the officer not only had reasonable suspicion
8
to believe criminal activity was occurring but also had probable cause to
stop Scheffert’s vehicle for being at the location after hours.
The court of appeals concluded the district court had no evidence
of the county park hours. It found the State failed to present evidence of
the purported county regulation setting the 10:30 p.m. closing time and
declared judicial notice may not be taken of an ordinance. Further, the
court of appeals reasoned the State must plead and prove the ordinance
or at least make the ordinance a part of the record in the trial court. We
disagree with this analysis.
The court of appeals appears to rely on a section of the Code
establishing the foundation requirements for an ordinance to be
admissible as evidence in a court proceeding. This section states,
1. The printed copies of a city code and of
supplements to it which are purported or proved to have
been compiled pursuant to section 380.8 shall be admitted
in the courts of this state as presumptive evidence of the
ordinances contained therein. When properly pleaded, the
courts of this state shall take judicial notice of ordinances
contained in a city code or city code supplement.
2. The printed copies of an ordinance of any city
which has not been compiled in a city code or a supplement
pursuant to section 380.8 but which has been published by
authority of the city, or transcripts of any ordinance, act, or
proceeding thereof recorded in any book, or entries on any
minutes or journals kept under direction of the city, and
certified by the city clerk, shall be received in evidence for
any purpose for which the original ordinances, books,
minutes, or journals would be received, and with the same
effect. The clerk shall furnish such transcripts, and be
entitled to charge therefor at the rate that the clerk of the
district court is entitled to charge for transcripts of records
from that court.
3. The actions of any court of this state in taking
judicial notice of the existence and content of a city
ordinance in any proceeding which was commenced between
the first day of July[ ] 1973, and April 17, 1976, shall be
9
conclusively presumed to be lawful, and to the extent
required by this section, this section is retroactive.
Id. § 622.62.
Iowa Code section 622.62 is a statutory rule of evidence governing
the admissibility of an ordinance at trial. City of Cedar Rapids v. Cach,
299 N.W.2d 656, 659 (Iowa 1980). It is well-settled law that if a party
fails to object to the admission of evidence, the party waives any ground
for complaint, and the party cannot raise any error concerning its
admission for the first time on appeal. State v. Willer, 218 N.W.2d 605,
607 (Iowa 1974). We have applied this law when a party fails to properly
object and preserve the admissibility of an ordinance at trial. See
Robertson v. Carlgren, 211 Iowa 963, 969, 234 N.W. 824, 827 (1931)
(holding that when a party fails to assign grounds at trial for the
inadmissibility of an ordinance, we will not consider it for the first time
on appeal).
At trial, Deputy Harris testified without objection that Falls Access
closed at 10:30 p.m. Thus, the State established the county rule
mandating the closure of Falls Access at 10:30 p.m. If Scheffert had
objected on the grounds the State had to comply with section 622.62 to
prove the foundation for the admissibility of an ordinance establishing
the 10:30 p.m. closing time and the court had sustained the objection,
the State would have had the opportunity to make the foundation for
admitting the ordinance in order to establish the closing time. However,
because Scheffert raised no objection to the district court’s admittance of
the closing hours into evidence, we find the record is sufficient to show
that the closing time of Falls Access is 10:30 p.m.
However, this does not end our inquiry. At trial and on appeal,
Scheffert argues there can be no violation unless the county conservation
10
board posted the closing time. In other words, without such a posting,
the county ordinance did not take effect.
Relevant to this analysis, we again examine Iowa Code section
350.5, which states,
The regulations shall not take effect until ten days after their
adoption by the board and after their publication as provided
in section 331.305 and after a copy of the regulations has
been posted near each gate or principal entrance to the public
ground to which they apply. After the publication and
posting, a person violating a provision of the regulations which
are then in effect is guilty of a simple misdemeanor.
Iowa Code § 350.5 (emphasis added).
The statute clearly and unambiguously states there is no criminal
violation under the county ordinance until the county conservation board
posts the regulation. Here, it requires the county conservation board to
post the 10:30 p.m. closing time “near each gate or principal entrance” of
Falls Access before a criminal violation can take place. The evidence is
clear the State never proved by a preponderance of the evidence that the
conservation board properly or actually even posted the closing time of
Falls Access. Factually, the State never argued the conservation board
ever posted the closing time. Legally, the district court found the
conservation board did not have to post a closing time for a violation to
occur. Without the conservation board properly posting the closing time,
the county ordinance did not take effect. Therefore, the State cannot use
the county ordinance to justify the stop by the officer. However, for
reasons we discuss later in this opinion, the default 10:30 p.m. closing
time in section 461A.46 applies here.
The State then argues the officer made a mistake of law when he
determined the conservation board did not have to post a closing time for
a violation to occur. Neither party raised mistake of law in the district
11
court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be
both raised and decided in the district court before we will decide them
on appeal.”). Even if the State had raised mistake of law in the district
court, thereby preserving error, this defense has no merits.
On appeal, the State raises mistake of law in its brief but only cites
authority under the United States Constitution. Scheffert raised both
the United States and Iowa Constitutions in his motion to suppress. We
choose to analyze the mistake-of-law question under the Iowa
Constitution. We have previously considered mistake-of-law claims
under the Iowa Constitution. See State v. Tyler, 830 N.W.2d 288, 294–
96, 298 (Iowa 2013). The State has the burden of proof to show the
officer was justified in stopping the vehicle. Id. at 293. We held in Tyler
that a mistake of law is not sufficient to meet the State’s burden to
justify a stop. 2 Id. at 294.
2After our decision in Tyler, the United States Supreme Court decided that a
reasonable mistake of law could support reasonable suspicion for a traffic stop. Heien
v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 539–40 (2014). Thus, the mistake-
of-law doctrine is broader under the United States Constitution than it is under the
Iowa Constitution. See id. at ___, 135 S. Ct. at 539–40.
In Heien, an officer dealt with an ambiguous statute regarding the number of
required working brake lights. Id. at ___, 135 S. Ct. at 540. Reading the statute to
require that all brake lights needed to be working, the officer stopped the vehicle. Id. at
___, 135 S. Ct. at 540. The Supreme Court held the Fourth Amendment tolerates a
mistake of law as long as the mistake is objectively reasonable. Id. at ___, 135 S. Ct. at
539. Subsequent to Heien, we reaffirmed Tyler. See State v. Coleman, 890 N.W.2d 284,
298 n.2 (Iowa 2017) (“[T]he ruling in Tyler under the Iowa Constitution is unaffected by
Heien.”).
We note, however, that the United States Constitution limits the mistake-of-law
defense. “An officer can gain no Fourth Amendment advantage through a sloppy study
of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539–40.
“Heien does not support the proposition that a police officer acts in an objectively
reasonable manner by misinterpreting an unambiguous statute.” United States v.
Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016).
12
In a petition for rehearing filed by the State, it contends Iowa Code
section 350.10 resolves the section 350.5 issue. Section 350.10
provides,
Sections 461A.35 through 461A.57 apply to all lands
and waters under the control of a county conservation
board, in the same manner as if the lands and waters were
state parks, lands, or waters. As used in sections 461A.35
through 461A.57, “natural resource commission” includes a
county conservation board, and “director” includes a county
conservation board or its director, with respect to lands or
waters under the control of a county conservation board.
However, sections 461A.35 through 461A.57 may be
modified or superseded by rules adopted as provided in
section 350.5.
Iowa Code § 350.10 (emphasis omitted).
The State failed to cite section 350.10 in the district court, court of
appeals, or supreme court proceedings. It was not until it filed its
petition for rehearing that the State cited section 350.10. Normally we
do not consider an argument made for the first time in a petition for
rehearing. However, the State consistently argued below and throughout
the appeal that the 10:30 p.m. closing time in section 461A.46 applies to
Scheffert. 3
_____________________
Other courts applying the principles of Heien have refused to find that a mistake
of law is objectively reasonable when the statute the officer relies on is clear on its face
as to what the law says. See, e.g., United States v. Alvarado-Zarza, 782 F.3d 246, 249–
50 (5th Cir. 2015) (holding officer’s legal error was not objectively reasonable when he
stopped vehicle on the ground that motorist failed to turn on a signal 100 feet in
advance of changing lanes); State v. Stoll, 370 P.3d 1130, 1135 (Ariz. Ct. App. 2016)
(holding officer’s mistake of law that vehicle’s white license plate lamp violated statute
generally requiring red rear-mounted lights was not a objectively reasonable mistake of
law that justified the investigatory stop); State v. Rand, 209 So. 3d 660, 667 (Fla. Dist.
Ct. App. 2017) (holding an officer’s mistaken belief as to the closing time of the school
track was not an objectively reasonable mistake of law); State v. Tercero, 467 S.W.3d 1,
11 (Tex. App. 2015) (holding officer’s drawing of blood without a warrant was not a
objectively reasonable mistake of law because a nonconsensual blood draw violated
Tercero’s Fourth Amendment rights).
3We note the State has never argued below that if section 350.5 did require
posting and such posting did not occur, the closing time would default to the 10:30
13
Originally, we disagreed with the State’s contention because we
were unaware of the existence of section 350.10. Now that the State has
made us aware of this section, we must include it in our analysis
because it specifically references section 461A.46 and supports the
State’s argument that the 10:30 closing time in section 461A.46 applies
to Scheffert. 4
Section 350.10 clearly states that the 10:30 p.m. closing time in
section 461A.46 applies to the area where the officer found Scheffert’s
vehicle if the county conservation board has not modified or superseded
by rule this closing time. Although the county conservation board
attempted to supersede the closing time in section 461A.46 by rule, the
rule contained in its ordinance never took effect because the board failed
to post it as required by section 350.5. Thus, at the time the officer
stopped Scheffert, the closing time was 10:30 p.m. in the area where the
officer found Scheffert’s vehicle. The officer stopped Scheffert after 10:30
p.m. Accordingly, at the time of the stop, the officer had probable cause
to stop Scheffert’s vehicle under the Iowa Constitution.
V. Disposition.
Because the State proved the officer had probable cause to stop
Scheffert’s vehicle, we conclude the district court properly denied
Scheffert’s motion to suppress. Thus, we vacate the decision of the court
of appeals and affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
_____________________
p.m. closing time in section 461A.46 based on the language of section 350.10. Rather,
the State merely argued the closing time in section 461A.46 controls here.
4This is not a situation in which the State failed to make an argument at the
district court. Rather, it is a situation in which the State made the proper general
argument at the district court, but we failed to apply a relevant statute.