IN THE COURT OF APPEALS OF IOWA
No. 17-1619
Filed December 19, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CLARENCE D. BLANCHARD,
Defendant-Appellant.
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Appeal from the Iowa District Court for Emmet County, Ann M. Gales,
District Associate Judge.
The defendant appeals the denial of his motion to suppress. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, Judge.
Following a conviction for operating while intoxicated, first offense, Clarence
Blanchard appeals the district court’s denial of his motion to suppress. Blanchard
argues there was neither a reasonable articulable suspicion nor probable cause to
support the police officer’s investigatory stop of his vehicle.
“Both the Fourth Amendment to the United States Constitution and article I,
section 8 of the Iowa Constitution prohibit unreasonable searches and seizures by
the government.” State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013). “A traffic stop
is unquestionably a seizure . . . .” Id. at 292. “Yet, this protection does not prohibit
police from temporarily detaining an individual when they have reasonable grounds
to believe criminal activity is afoot.” State v. DeWitt, 811 N.W.2d 460, 468 (Iowa
2012). Such stops are generally referred to as Terry stops. See Terry v. Ohio,
392 U.S. 1, 20–27 (1968). The State bears the burden of proving by a
preponderance of the evidence that the requisite suspicion existed to justify the
Terry stop. See Tyler, 830 N.W.2d at 293. If the State fails to carry its burden, “all
evidence obtained at the stop must be suppressed.” Id. We review the district
court’s suppression ruling de novo. State v. Watts, 801 N.W.2d 845, 850 (Iowa
2011).
Here, off-duty deputy Thomas Bauler was putting gas in his car at an area
gas station in the early morning hours when he noticed an SUV at the gas station
that was playing very loud music. Deputy Bauler approached the vehicle, showing
his police badge to a passenger in the backseat who had the window rolled down;
the driver was not in the vehicle at the time Deputy Bauler approached. As he
talked to the backseat passenger, Deputy Bauler recognized the smell of
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marijuana emanating from the vehicle. According to his testimony, because he
was off-duty and not in his uniform, driving his squad car, or carrying his weapon,
he did not take any steps to prevent the vehicle from leaving after the driver
returned. However, as the vehicle left the gas station, at 2:55 a.m., Deputy Bauler
called the local dispatch and reported his observations as well as the license plate
number and description of the vehicle. Deputy Bauler then began driving toward
his home. On the way, he drove by Detective Nathaniel Dunlavey, who was on
duty and was looking for the SUV. Deputy Bauler flagged Detective Dunlavey
down and shared the information he had previously reported to dispatch. Then, at
3:16 a.m., based solely on the report from Officer Bauler, Detective Dunlavey
initiated a stop of the SUV. Once he made contact with the driver—Blanchard—
Detective Dunlavey suspected Blanchard was driving while intoxicated. Later
testing established that Blanchard’s blood alcohol content was .194.
On appeal, Blanchard maintains there was not reasonable suspicion to stop
his vehicle because “the alleged odor of marijuana coming from occupants in a
vehicle over twenty minutes prior to the stop does not provide a reasonable basis
that criminal activity was afoot at the time of the stop.” He also provides a possible
non-criminal explanation for the smell of marijuana coming from the vehicle,
claiming one of the passengers could have stood next to a person who was
smoking marijuana before entering the car.
But “reasonable cause may exist to investigate conduct which is subject to
a legitimate explanation and turns out to be wholly lawful.” State v. Richardson,
501 N.W.2d 495, 497 (Iowa 1993). Moreover,
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[r]easonable suspicion is a less demanding standard than
probable cause not only in the sense that reasonable suspicion can
be established with information that is different in quantity or content
than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990). While an “unverified tip from [a]
known informant might not [be] reliable enough to establish probable cause, [the
Supreme Court] nevertheless found it sufficiently reliable to justify a Terry stop.”
Id. (citing Adams v. Williams, 407 U.S. 143, 147 (1972)).
Here, an off-duty officer, who is trained to detect the odor of marijuana,
recognized the smell of marijuana emanating from the vehicle when he spoke to
one of the passengers through an open window. Our case law establishes that
this fact provides more than just a hunch of criminal wrongdoing. See Watts, 801
N.W.2d at 854 (“Our court has . . . held that a trained officer’s detection of a
sufficiently distinctive odor, by itself or when accompanied by other facts, may
establish probable cause.”); see also State v. Eubanks, 355 N.W.2d 57, 59 (Iowa
1984) (holding “the patrolman clearly had sufficient probable cause to search the
vehicle” because the “patrolman smelled the odor of marijuana drifting from the
car.”).
And although Deputy Bauler is not the officer who subsequently initiated the
stop,1 the approximately twenty-minute delay between his report of the information
1
While Blanchard’s appeal suggests a challenge to the district court’s conclusion that the
delay in time between Officer Bauler’s report and the stop did not affect the legality of the
stop, we do not understand him to be raising any challenge regarding the reliability of the
“tip” from Officer Bauler. See, e.g., State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001)
(considering whether a tip from a citizen informant was sufficiently reliable to provide
reasonable suspicion to justify a stop).
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to dispatch and Detective Dunlavey’s stop of the vehicle does not render the
information stale or incapable of supporting an investigatory stop. Our case law
typically discusses “staleness” in relation to applications for search warrants, but
we believe the case law is also applicable here. We acknowledge “[a]llegations of
criminal conduct may be so distant in time as to provide no probable cause,” but
“[w]hether information is stale depends on the circumstances of each case.” State
v. Randle, 555 N.W.2d 666, 670 (Iowa 1996). And twenty minutes is not a
significant period of time. See State v. Gogg, 561 N.W.2d 360, 367–68 (Iowa
1997) (concluding a period of six days between the observations of criminal acts
and the execution of a search warrant was not a significant lapse of time).
Considering the totality of the circumstances, Deputy Bauler’s recognition of the
smell of marijuana emanating from Blanchard’s vehicle provides a reasonable
suspicion of criminal activity to stop the vehicle approximately twenty minutes later.
We affirm the district court’s denial of Blanchard’s motion to suppress.
AFFIRMED.