IN THE COURT OF APPEALS OF IOWA
No. 19-0487
Filed July 22, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID LOREN BOLL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Stephanie C.
Rattenborg, District Associate Judge.
A defendant appeals his conviction for operating while intoxicated, second
offense. AFFIRMED.
David L. Boll, Lamont, self-represented appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., May, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
2
TABOR, Presiding Judge.
David Boll appeals the denial of his motion to suppress evidence underlying
his conviction for operating while intoxicated (OWI), second offense. Because the
evidence stemmed from a constitutional traffic stop, we affirm the district court’s
suppression ruling. We also decline to grant relief on Boll’s discovery claims.
I. Facts and Prior Proceedings
Eleven-year-old C.B. called 911 to report an argument between his mother
and father. The boy told the dispatcher, “[I]t’s getting very violent.” The dispatcher
then spoke with the caller’s mother, K.K., who acknowledged there had been some
pushing between her son and his father. At 8:57 p.m., two Buchanan County
deputies—Ben Ward and Joseph Schwinghammer—were dispatched in separate
vehicles to C.B.’s address in Stanley on the son’s report of a domestic disturbance.
Before either deputy arrived, dispatch relayed the information that the father, David
Boll, had left the residence in his car. And based on the son’s report, Boll had
been drinking. The mother told the dispatcher it was unnecessary to send officers.
But law enforcement protocol required them to confirm whether the possible victim
of domestic abuse was coerced to cancel the call for help.
Knowing Boll had left the residence, Deputy Ward went to the Stanley
address while Sergeant Schwinghammer went in search of Boll. Schwinghammer
had previous interactions with Boll and recognized his car when he spotted it on
the road at 9:15 p.m.1 After the sergeant turned on his lights, Boll continued driving
for a short distance. When Boll did pull over, Sergeant Schwinghammer noted he
1Sergeant Schwinghammer went to Boll’s residence the day before to serve him
court papers.
3
had glassy, bloodshot eyes, slurred speech, and the odor of alcohol on his breath.
Meanwhile, Officer Ward arrived at the residence in Stanley and determined
the disturbance reported by C.B. did not require filing charges. Ward
communicated that assessment to Sergeant Schwinghammer in a phone call.
At the roadside, Schwinghammer tried to administer field sobriety tests. But
Boll did not follow instructions for the horizontal gaze nystagmus (HGN) and
refused to engage in the other tests. Schwinghammer then took Boll to the police
station. At the station, the sergeant explained the Miranda rights to Boll. When
asked if he understood his rights, Boll replied that he could not answer that
question. When Schwinghammer asked Boll if he was waiving his rights, Boll told
the deputy he was “pleading the fifth.” Schwinghammer then read Boll the implied-
consent advisory. Boll refused to sign the form requesting a breath test. Boll also
refused to give a breath sample.
The State charged Boll with OWI second offense, an aggravated
misdemeanor in violation of Iowa Code section 321J.2 (2018). Boll represented
himself throughout the trial court proceedings and now on appeal.
Boll moved to suppress the evidence collected by Schwinghammer. The
district court denied that motion. Boll then pleaded guilty to OWI. After having a
change of heart, Boll moved in arrest of judgment and sought to withdraw his guilty
plea. The court granted Boll’s motion in arrest of judgment. He then stipulated to
a trial on the minutes of evidence to preserve his right to challenge the suppression
issues on appeal. The court found him guilty and imposed a sentence of one year
incarceration with all but sixty days suspended. Boll appeals.
4
II. Scope and Standards of Review
We review challenges to suppression rulings de novo when they implicate
constitutional issues. State v. Baker, 925 N.W.2d 602, 609 (Iowa 2019). That
review entails an independent review of the totality of circumstances on the entire
record. Id. We defer to the district court’s factual findings, but they do not dictate
our result. State v. Louwrens, 792 N.W.2d 649, 651 (Iowa 2010).
We also review discovery rulings challenged on constitutional grounds de
novo. State v. Leedom, 938 N.W.2d 177, 185 (Iowa 2020). But we review
nonconstitutional challenges to discovery rulings for an abuse of discretion. Id.
III. Analysis
A. Motion to Suppress
1. Basis for Investigatory Stop
Boll argues that Officer Schwinghammer did not have reasonable suspicion
to justify pulling him over on the night of the 911 call. Boll also contends the
community caretaker exception did not apply. 2 He urges any evidence of his
drunkenness stemming from that traffic stop should have been suppressed under
2The county attorney argued the community caretaker exception justified the traffic
stop. The district court overruled the motion to suppress by finding reasonable
suspicion for the stop. Boll contends on appeal that the State waived the
reasonable-suspicion argument by not raising it at the suppression hearing. See
DeVoss v. State, 648 N.W.2d 56, 62–63 (Iowa 2002). But DeVoss makes an
exception for evidentiary rulings. Id. at 62. A motion to suppress challenges the
admissibility of evidence seized from a defendant; thus, we may affirm the
suppression ruling on any ground appearing in the record, whether urged by the
parties. See State v. Rave, No. 09-0415, 2009 WL 3381520, at *2–3 (Iowa Ct.
App. Oct. 21, 2009); see also State v. Gaskins, 866 N.W.2d 1, 44 (Iowa 2015)
(Waterman, J., dissenting).
5
the Fourth Amendment of the U.S. Constitution and Article I, section 8 of the Iowa
Constitution.3
Both provisions protect people from unreasonable searches and seizures.
U.S. Const. Amend. IV; Iowa Const. art. I, § 8. A search or seizure without a
warrant is per se unreasonable, unless the State can prove by a preponderance
of the evidence that a recognized exception to the warrant requirement applies.
State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). Reasonable suspicion is a
recognized exception. State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). A traffic
stop is a seizure. State v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013). But if the
deputy had reasonable suspicion to believe criminal activity had occurred or was
occurring, he could stop and briefly detain Boll for investigatory purposes. See
State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004) (citing Terry v. Ohio, 392 U.S.
1, 21 (1968)). Reasonable suspicion must be “based on specific and articulable
facts, which taken together with rational inferences from those facts” cause the
officer to “reasonably believe criminal activity may have occurred.” Id.
Sergeant Schwinghammer was responding to a 911 call reporting what
sounded like domestic abuse assault, a crime under Iowa Code section 708.2A.
Boll contends K.K. dispelled any reasonable suspicion when she told dispatch they
did not need to send officers. But the State’s witnesses testified it was standard
procedure to investigate domestic-abuse reports even if the caller withdraws their
3 Boll does not argue the reasonable-suspicion analysis would be different under
the state constitution than it would be under the federal constitution. Lacking that
argument, we “exercise prudence by applying the federal framework to our
analysis of the state constitutional claim.” State v. Baker, 925 N.W.2d 602, 610
(Iowa 2019). Following our state supreme court, “we may diverge from federal
case law in our application of that framework under the state constitution.” Id.
6
request for help.4 Likewise, the fact Boll had left the residence did not erase the
reasonable suspicion. Under these circumstances, the deputy could reasonably
believe the situation reported to dispatch by the child caller required further
investigation to resolve any ambiguity whether Boll had engaged in criminal activity
and whether he still posed a danger to family members. “The purpose of an
investigatory stop is to allow a police officer to confirm or dispel suspicions of
criminal activity through reasonable questioning.” State v. Baker, 925 N.W.2d 602,
610 (Iowa 2019) (quoting State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002)). Like
the district court, we find the investigatory stop was constitutional.5
2. Basis for OWI Investigation
Boll next argues Sergeant Schwinghammer lacked enough evidence to
believe he was driving while impaired. The district court determined, “Once
Schwinghammer interacted with Boll, he also obtained reasonable suspicion that
Boll was operating his vehicle while intoxicated.” We agree with that
4 This policy makes sense. Domestic violence victims often recant their
accusations under threat or out of fear that their abuser will become more
aggressive. See State v. Smith, 876 N.W.2d 180, 187–88 (Iowa 2016) (observing
that “complex dynamics” can lead many victims to refrain from reporting abuse or
to recant initial reports).
5 The State also argues Sergeant Schwinghammer had reasonable suspicion to
believe Boll was operating while intoxicated. In a deposition, the sergeant testified
that he knew the son reported his father had been drinking. The sergeant also
testified the video showed Boll “hit the center line” before the investigatory stop,
though the sergeant did not cite that “erratic driving” as a basis for pulling over Boll.
A named citizen’s tip concerning a drunk driver, if reliable, may provide reasonable
suspicion for an investigatory stop. See State v. Campbell, No. 13-0558, 2014 WL
1494906, at *1–2 (Iowa Ct. App. Apr. 16, 2014) (distinguishing anonymous tip in
State v. Kooima, 833 N.W.2d 202, 205 (Iowa 2013)). But unlike the caller in
Campbell, C.B. did not see erratic driving. In any regard, given the report of
possible domestic violence, we need not rely on this alternative basis.
7
determination. During his investigation, the sergeant developed reasonable
grounds to invoke implied consent under Iowa Code section 321J.6.6
First, C.B. reported to dispatch that his father had been drinking. Second,
after the stop, Sergeant Schwinghammer observed signs that Boll was
intoxicated.7 Those signs included slurred speech, unsteadiness, the odor of
alcohol, and bloodshot eyes. Boll also admitted having “a couple” drinks. And as
the district court noted: “Boll also had a wet spot on the front of his pants, leading
Schwinghammer to suspect Boll had urinated himself.” From there, Boll was
unable or unwilling to follow instructions for the field sobriety tests.8
Schwinghammer had cause to take Boll to the police station to continue the
investigation and eventually invoke implied consent. See Crosser v. Iowa Dep’t of
Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976) (defining “reasonable grounds” as
facts known to the officer warranting a prudent person to believe the offense had
been committed). Sergeant Schwinghammer’s observations of Boll’s condition
during the investigatory stop and Boll’s refusal to submit to implied-consent testing
were admissible evidence.
6 Iowa law provides:
A person who operates a vehicle in [Iowa] under circumstances
which give reasonable grounds to believe that person has been
operating a motor vehicle [while intoxicated] is deemed to have given
consent to the withdrawal of specimens of the person’s blood, breath,
or urine . . . for the purpose of determining the alcohol concentration.
Iowa Code § 321J.6(1).
7 Under examination by Boll referring to video from the squad-car camera,
Sergeant Schwinghammer testified he saw “erratic driving” before pulling him over:
“you hit the center line twice.” But the sergeant did not rely on that conduct as the
basis for the stop.
8 Boll expresses concern that the State relied on an incomplete HGN test. Like the
district court, we give no weight to that test in finding the deputy had reasonable
grounds to invoke implied consent.
8
B. Discovery and Alleged Brady Violation
As a final claim, Boll contends the district court abused its discretion in
handling his discovery requests. He also alleges a due process violation under
Brady v. Maryland, 373 U.S. 83, 86–87 (1963).
About a week after the State filed its trial information, Boll moved for
discovery. He requested all communication between the 911 dispatcher and the
deputies. The court granted the request in late April 2018. After Boll made several
more requests, the court again, in August 2018, ordered the State to provide him
with “an audio recording, if it exists, of any radio dispatch and officer
communications related to this matter.” Boll received that recording (later
designated as Exhibit E) sometime before the end of September 2018, because
he asked the district court to consider it part of the suppression record. In an
October 2018 ruling, the court confirmed that it considered that exhibit in reaching
its ruling.
On appeal, Boll argues a Brady violation occurred because the court “failed
to order all discovery timely.” To show the infringement on due process, Boll “must
prove by a preponderance of the evidence (1) the prosecution suppressed
evidence; (2) the evidence was favorable to him; and (3) the evidence was material
to the issue of his guilt.” See Moon v. State, 911 N.W.2d 137, 145 (Iowa 2018)
(internal quotation marks and citation omitted).
Boll fails to meet these elements. The State did not suppress the radio
communications. The record suggests it took several months for Boll to receive
the evidence he sought. But the State complied with the request in time for him to
submit the recording with his suppression arguments. More importantly, the
9
recording was not exculpatory. The radio communication revealed that C.B.
thought that his father had a “drinking problem” and was acting violent. And most
critically, the radio communication was immaterial to the issue of Boll’s guilt on the
OWI charge.
We find no constitutional violation or abuse of discretion in addressing Boll’s
discovery request.
AFFIRMED.