Opinion
No. 3-864 / 03-0472.
Filed December 24, 2003.
Appeal from the Iowa District Court for JohnsonCounty, Patrick R. Grady, Judge.
The State was granted interlocutory appeal from the district court's grant of the defendants' motions to suppress. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Dominguez, Assistant County Attorney, for appellant.
Michael Lahammer, Cedar Rapids, for appellee Nebergall.
Thomas O'Flaherty, Swisher, for appellee Petz.
Richard Klausner, Iowa City, for appellee Sullivan.
Heard by Mahan, P.J., and Miller and Eisenhauer, JJ.
The State was granted interlocutory appeal from the district court's grant of the defendants' motions to suppress. The State contends the court erred in finding that reasonable cause did not exist to stop the defendants' vehicle. We reverse and remand
I. BACKGROUND FACTS AND PROCEEDINGS.
The record before us reveals the following facts. During the evening of April 2, 2002, Adam Swenka was working as a clerk at a convenience store on Highway 965 in North Liberty. At approximately 8:00 p.m. Swenka noticed a vehicle come into the empty parking lot and park in a "dark spot" some distance away from the lit front entrance of the store. At the time there were no other customers in the store. Swenka testified that he was watching the car from the store window and became concerned that he might be robbed because no one got out of the vehicle for approximately five minutes.
Eventually, two males got out of the vehicle and entered the store. Swenka testified he was suspicious of them because he believed they were trying to act like they were not together and did not know each other. One male immediately approached the register where Swenka was standing and asked for cigarettes and two bottles of either pseudoephedrine or nasal decongestant that contained pseudoephedrine from behind the counter. The other male went to the back of the store toward the cooler. After the first male completed his purchase and began to leave the second male approached the cash register and also asked for two bottles of either pseudoephedrine or nasal decongestant. Swenka sold both individuals two bottles of Max brand pseudoephedrine, each bottle containing thirty-six tablets.
Swenka watched the two males leave, return to the vehicle, and move it to a different dark area of the parking lot. Swenka testify he next observed a female get out of the vehicle and enter the store. She got a soda from the cooler, approached the cash register, and also asked for and purchased two bottles of the same brand of nasal decongestant. Swenka identified the female as defendant Nebergall. Nebergall returned to the vehicle and it left the parking lot heading south on Highway 965.
Swenka called law enforcement because he knew that on the back of the pseudoephedrine packages it says if any suspicious activity occurs to call law enforcement and he believed the three individuals' behavior of parking in the dark on the side when the parking lot was empty, staying in the vehicle for five minutes before coming in, the two males acting like they did not know each other when they came in the store, moving the vehicle and then sending a third individual in to buy two more bottles of pseudoephedrine after the two males had each just purchased two of the same, was suspicious. Swenka also testified he was either told by his manager or read on the pseudoephedrine package that the limit one person can buy of the product is two bottles. He informed the police of what had happened with the three individuals, gave a description of the vehicle, a license plate number, and a description of the individuals.
Johnson County Sheriff Deputy Kevin Elliott received a dispatch concerning an "attempt to locate" a blue vehicle with Iowa County license plate number 257 FFE and was provided with the details of the purchases at the convenience store. Elliott was also informed by dispatch that the vehicle in question was from a town approximately thirty miles away from the convenience store in a different county. Based on the information he was given and his training and experience Elliott testified he believed the three individuals were buying the pseudoephedrine for use in the manufacture of methamphetamine. He testified that based on his training he knew pseudoephedrine was a main ingredient in the manufacture of methamphetamine, and that it was common for those attempting to manufacture methamphetamine to purchase the ingredients from outside their local area for various reasons.
Elliott located the vehicle and followed it for approximately two minutes. He did not observe any traffic violations but after radio consultation with other officers he determined there was reasonable suspicion to investigate and stopped the vehicle. Elliott approached the vehicle and saw two males in the front seat who were later identified as defendants Petz and Sullivan. There was also a female in the back who was later identified as the defendant Nebergall. A search of the vehicle revealed a total of twelve bottles of pseudoephedrine and two liter bottles of drain cleaner which contained sulfuric acid. Lithium batteries were also found on Nebergall.
Nebergall, Petz, and Sullivan (hereinafter the defendants) were charged with possession of precursors with the intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4)(b) (2001). Sullivan filed a motion to suppress the evidence obtained as a result of the vehicle stop. Petz also filed a motion to suppress and Nebergall joined Petz's suppression motion. Following a hearing on the defendants' motions the district court granted the motions. The court found the State had "not shown, under the totality of circumstances, that the purchases of six bottles of pseudoephedrine by three individuals in the same vehicle raises a reasonable suspicion that criminal activity is afoot such as to justify a traffic stop." The State applied for discretionary review of the court's grant of the suppression motions and our supreme court granted the State's application. The State contends on appeal that based on the totality of the circumstances there was reasonable cause for an investigatory stop of the defendants' vehicle.
II. SCOPE AND STANDARD OF REVIEW.
The Fourth Amendment to the United States Constitution guarantees a person's right to be free from unreasonable search and seizure. We review this constitutional question de novo in light of the totality of the circumstances as shown by the record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). "We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings." Id. The State preserved error by resisting the defendants' motions to suppress, obtaining a ruling on the issue presented, and seeking and securing discretionary review of that ruling.
The rights guaranteed by the Fourth Amendment apply to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081, 1090 (1961).
III. MERITS
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. Evidence obtained in violation of this provision is inadmissible in a prosecution, no matter how relevant or probative the evidence may be. State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995). The Fourth Amendment requires a police officer have reasonable cause to stop an individual for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21, 88 So. Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); State v. Tompkins, 507 N.W.2d 736, 738 (Iowa Ct. App. 1993). "An investigatory stop is considered a seizure within the meaning of the Fourth Amendment and must be `supported by reasonable suspicion to believe that criminal activity may be afoot.'" United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740, 749 (2002)).
A reviewing court must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. In forming a basis for suspicion, officers may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. While an officer's reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.
Id. (Internal citations and quotations omitted).
When a stop is challenged on the basis that reasonable cause did not exist, the State must show that the stopping officer had "specific and articulable cause to support a reasonable belief that criminal activity may have occurred. . . . If the State fails to meet its burden, the evidence obtained as a result of the stop must be suppressed.
State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982) (citations omitted), overruled in part on other grounds by State v. Heminover, 619 N.W.2d 353 (Iowa 2000). "The principal function of an investigatory stop is to resolve the ambiguity as to whether criminal activity is afoot." State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993). Seemingly innocent activities may combine with other factors to give an experienced police officer reasonable grounds to suspect wrongdoing. State v. Bradford, 620 N.W.2d 503, 508 (Iowa 2000).
The only issue on appeal is whether Deputy Elliott, based on the information he received regarding the defendants' purchases of the pseudoephedrine, coupled with his experience and training, had specific and articulable cause to support a reasonable belief criminal activity may have occurred. Both our supreme court and the United States Court of Appeals for the Eighth Circuit have recently addressed the issue of what is necessary to form the requisite reasonable cause to conduct an investigatory stop when the defendants' suspicious activity is related to the purchase of pseudoephedrine and/or other precursors to the manufacture of methamphetamine.
In State v. Heuser, 661 N.W.2d 157 (Iowa 2003) the defendant and a woman entered a Target store together, but then separated and bought several boxes of cold medication containing pseudoephedrine at separate cash registers. Heuser, 661 N.W.2d at 161. Store employees thought the couple's activity was suspicious and notified the police. Id. The police then observed the couple at two other stores where they alternated the purchasing of additional boxes of cold medication. After learning of the multiple purchases and that Heuser had asked about lithium batteries the police stopped Heuser's van. Id. At hearing police officers testified that it was common for people to obtain pseudoephedrine from over-the-counter cold medications, and that Heuser's conduct was consistent with people engaged in the manufacture of methamphetamine who generally try to avoid suspicion by gathering precursors and batteries from a number of stores. Id. at 162. The court upheld the investigatory stop, finding that the facts "formed a solid basis upon which the officers had reasonable cause to stop the van to determine `whether criminal activity [was] afoot.'" Id. (quoting Richardson, 501 N.W.2d at 497.)
In United States v. Ameling, 328 F.3d 443, 448 (8th Cir. 2003), prior to the challenged investigatory stop the police learned that the defendants purchased a significant amount of pseudoephedrine and split the purchase into two separate transactions. The officers further knew that although the defendants entered the Target store together they split up after entering, purchased the pseudoephedrine separately even though the store was not busy, and then left the store separately reuniting at Ameling's truck. Id. Officers were also aware that immediately after leaving Target, the defendants traveled to a nearby store and purchased a lithium battery. The court held that under the totality of the circumstances in the record the officers' suspicion that the defendants were involved in criminal activity was constitutionally reasonable and thus the investigatory stop was not illegal. Id.
Our supreme court revisited this issue in State v. Maddox, 670 N.W.2d 168 (Iowa 2003), and found that the facts in the record actually met the higher constitutional burden of proof of probable cause. In making this determination the court found significant the following facts. Wal-Mart personal saw the defendants shopping together late at night for a peculiar variety of items, including plastic tubing, coffee filters, starter fluid, and jars, all known by trained police officers to be consistent with methamphetamine production. Id. at 173. The defendants checked out separately, split up when they left, and then met up at their vehicle. Id. The police saw additional Wal-Mart bags in the defendants' truck which would be indicative of a further "breaking up" of their purchases in order to avoid detection, like the defendants in Heuser and Ameling. Id. The court concluded, "Considering together all the factors previously described, no matter how innocent each may appear alone, we conclude `a person of reasonable prudence would believe a crime was being committed. . . .'" Id. at 174 (quoting State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003)).
Using the analysis found in Heuser, Ameling, and Maddox as guideposts, we conclude the State met its burden to show that Officer Elliott had specific and articulable cause to support a reasonable belief that criminal activity may have occurred and thus had reasonable cause to conduct an investigatory stop. Therefore, the district court's suppression order cannot be affirmed.
We recognize that neither Heuser, Ameling, or Maddox were available to the district court when it made its determination regarding the defendants' motions to suppress and therefore the court could not have utilized the analysis used in these cases.
As discussed above, prior to the stop of the defendants in this case the police learned that they had entered the empty parking lot of a convenience store, parked away from the door in a dark area of the lot, and then waited in the car for approximately five minutes. Two males then exited the vehicle and entered the store together but split up after entering and seemed to act as if they did not know each other. They then checked out separately, even though the store was not busy. Each purchased the maximum amount of pseudoephedrine, as set by either store policy or based on the recommendation on the packaging. The two then left the store separately but reunited at their vehicle. After returning to the car they waited a little while, moved the car, and a female from the same vehicle then entered the store alone and also purchased the maximum amount of pseudoephedrine allowed.
Furthermore, the stopping officer was informed by dispatch that the vehicle had out of county plates and was registered to someone who resided in a town approximately thirty miles away. The officer testified that based on his training and experience he knew pseudoephedrine is a main ingredient in manufacturing methamphetamine and that commonly people who manufacture methamphetamine purchase the ingredients away from their local area for various reasons.
Considering the totality of the circumstances and the information available to the police at the time of the stop, we conclude there was reasonable cause for Officer Elliott to stop the defendants' vehicle to determine whether criminal activity was afoot. Although the mere purchase of two bottles of pseudoephedrine by multiple, associated persons may arguably be a seemingly innocent activity, when combined with other facts and circumstances surrounding the multiple purchases involved here we find the detaining officer had reasonable grounds to suspect wrongdoing and was justified in conducting an investigatory stop to resolve any ambiguity as to whether criminal activity was afoot. On the record before us we cannot conclude that the officer's suspicion of criminal activity was unreasonable.
III. SUMMARY AND DISPOSITION.
Based on our de novo review of the record, and considering the totality of the circumstances, we find the investigatory stop of the defendants' vehicle was constitutionally reasonable. Accordingly, we conclude the district court erred in granting the defendants' motions to suppress. We reverse the district court's suppression order and remand the case for further proceedings consistent with this opinion.