Opinion
No. 3-502 / 02-0958
Filed October 15, 2003
Appeal from the Iowa District Court forDallas County, Richard D. Morr, Judge.
Devan Standley appeals from his conviction for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2001). REVERSED AND REMANDED.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Wayne R. Reisetter, County Attorney, and Charles Sinnard, Assistant County Attorney, for appellee-State.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
Devan Standley appeals from his conviction for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2001). Standley contends the district court erred when it overruled his motion to suppress. We reverse Standley's conviction and remand the case to the district court for further proceedings consistent with this opinion.
Background Facts and Proceedings. On July 27, 2001, the Dallas County Sheriff's Department received a tip from an anonymous caller to check on a "suspicious vehicle" at Odd Fellows Cemetery in rural Dallas County. At approximately 11:30 p.m., Deputy Sheriff Ryan Bowers went to the cemetery. The cemetery is located off a dead-end gravel road. There is a house located to the south of the cemetery and a rock quarry to the north. A "no trespassing" sign was posted on the quarry premises; however, there were no similar signs located on the premises of the cemetery. In addition, there was no evidence of recent criminal activity at the cemetery, and it was not a high-crime area.
Upon arriving at the cemetery, Deputy Bowers observed a single vehicle parked in the back of the cemetery approximately 200 feet away from the quarry without its lights on. The deputy pulled up near the car and shined a spotlight on it. He observed three men inside the car. The driver was later identified as Standley. Deputy Bowers exited his squad car and began walking toward the car to talk with the occupants. Standley turned on his headlights and slowly backed up. He then attempted to drive slowly around Deputy Bowers's squad car. Bowers returned to his squad car and activated his emergency lights. Standley then stopped the vehicle immediately.
As Deputy Bowers approached the vehicle, he observed open and closed beer bottles in the backseat. Deputy Bowers also noticed Standley had bloodshot eyes and his pupils were dilated. Further, he detected a slight smell of alcohol coming from the interior of the vehicle. Standley initially denied drinking alcoholic beverages; however, he later admitted he had "a few sips." Next Deputy Bowers asked Standley to consent to a pat down for weapons, drugs, and drug paraphernalia. Standley replied to Deputy Bowers "that was fine." The deputy patted down Standley and found a film canister in the front pocket of his shorts. Deputy Bowers asked Standley what was inside. Standley responded he did not know. Deputy Bowers opened the film canister which contained a green, leafy substance that was later identified as marijuana. A search of Standley's car revealed more marijuana. Standley was arrested for possession of marijuana and possession of alcohol by a minor. At the police station the deputy read the implied consent advisory to him. Standley stated he understood the procedure, and he consented to a urine test.
On November 19, 2001, Standley was charged by trial information with possession of a controlled substance, possession of alcohol by a minor, and operating while under the influence of alcohol or drugs. On November 28, 2001, Standley filed a suppression motion, which the State resisted. Standley argued Deputy Bowers did not have a lawful basis to justify the stop of his vehicle or to search his person and vehicle. He also claimed Deputy Bowers did not have a legitimate basis to invoke implied consent or probable cause to arrest him.
Following the hearing, the district court overruled Standley's motion. After a stipulated trial on the minutes of testimony, the court found Standley guilty of operating while intoxicated. The State dismissed the other charges. The district court sentenced Standley to thirty days in jail. The court suspended the sentence and placed Standley on probation for one year. The court also ordered him to pay a $1000 fine. Standley appeals.
Standard of Review. We review de novo the ultimate conclusion reached by the district court on a motion to suppress. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001). In doing so, we independently evaluate the totality of the circumstances shown by the entire record. Turner, 630 N.W.2d at 606. "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. Investigatory Stop of Standley's Vehicle. The crux question this court must first resolve is whether the circumstances in this case provided Deputy Bowers with reasonable suspicion sufficient to allow an investigatory stop of Standley's vehicle. The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect persons from unreasonable searches and seizures. Evidence obtained in violation of these provisions is inadmissible, regardless of its relevancy or probative value. Heminover, 619 N.W.2d at 357. An officer may stop an individual or vehicle for investigatory purposes based on a reasonable suspicion that a criminal act has occurred or is occurring. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Circumstances raising a mere suspicion or curiosity are not enough. Heminover, 619 N.W.2d at 358. An individual has a right to simply go about his or her business or turn around and walk away, even hurriedly, when approaching or coming in contact with law enforcement. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 677, 145 L.Ed.2d 570, 576 (2000); Heminover, 619 N.W.2d at 361.To justify an investigatory stop, the officer must be able to point to "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L. Ed.2d at 906. The evidence justifying the stop need not rise to the level of probable cause. State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002).
The constitutional reasonableness of a search or seizure is determined by an objective standard. State v. Jones, 586 N.W.2d 379, 382 (Iowa 1998). We assess whether the facts available at the moment of the seizure or the search could cause a person of reasonable caution to believe the action taken was appropriate. Kreps, 650 N.W.2d at 641. Consequently, the legality of a search and seizure "does not depend on the actual motivation of the individual officers involved." State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996).
Deputy Bowers's suspicion appears to have been based on the fact that Standley was in a cemetery at 11:30 p.m. at night when law-abiding citizens have no reason to be there. Standley, on the other hand, argues Deputy Bowers did not have reasonable and articulable cause to believe criminal activity was afoot. Standley relies on State v. Kreps, 650 N.W.2d 636 (Iowa 2002). In Kreps, our supreme court in analyzing the facts stated as follows:
We must determine whether there were specific and articulable facts, which taken together with rational inferences from those facts afforded Officer Johnson reasonable suspicion that at the time of the stop a substantial possibility existed that criminal conduct had occurred, was occurring, or was about to occur. In making that determination, we consider the circumstances under which the stop was made in light of the totality of the circumstances confronting Officer Johnson, including all information available to the officer at the time he made the decision to stop. We view those circumstances through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.
The case is close because the record does not indicate that Kreps was violating any traffic laws or was stopped for that purpose. Additionally, there was no evidence of recent criminal activity in the area, and no evidence that Kreps was in a high crime area.
Kreps, 650 N.W.2d at 647 (emphasis added).
Standley argues the following factors demonstrate that Deputy Bowers did not have specific, articulable cause to reasonably believe that criminal activity was afoot:
1) Dispatch relays no report of any specific criminal conduct to investigate, or identifying Standley, when the deputy was dispatched to the cemetery.
2) There is no evidence that the call from dispatch was in response to a call from a disinterested citizen informant who was observing suspicious criminal behavior.
3) When Deputy Bowers arrived at the cemetery, Standley's vehicle was lawfully parked on a one-lane gravel road, in a grassy area at the back of the cemetery.
4) Deputy Bowers admits that parking in this cemetery, by itself, does not violate any city ordinances. There were no no-trespassing signs or signs posted that restricted access to the cemetery.
5) There is no evidence of recent criminal activity in the cemetery, at the quarry or at the residence north of the cemetery.
6) The cemetery is not a high crime area.
7) Upon encountering Standley's vehicle, Deputy Bowers observed no criminal conduct nor furtive movements.
8) Deputy Bowers admits his only basis for his suspicion about the vehicle or the occupants was based solely upon the fact that the vehicle was parked in the cemetery at night. But even the Deputy admits that from what he observed Standley was free to leave.
9) The deputy also admitted that he had no specific, articulable facts, other than his bare suspicion, to stop the vehicle.
After a careful review of the record, we find the circumstances of this case do not rise above a generalized suspicion that a vehicle parked in a cemetery at night might be engaged in criminal activity. We note this area was not a high crime area nor was there any evidence of recent criminal activity in the cemetery. Dispatch received a tip from an anonymous caller that did not identify the defendant or his vehicle. Furthermore, the caller did not state that defendant was engaged in any criminal activity, only that there was a "suspicious vehicle" parked in the cemetery. We also note that parking in this cemetery, by itself, does not violate any city ordinances or statutes. There was no evidence of any furtive movements by the occupants of the vehicle. Upon Deputy Bowers's approach, there was no evidence offered to show that Standley's actions were illusive, erratic, or rose to the level of flight. Indeed, Standley's actions cannot reasonably be characterized as flight. He did not speed up or attempt to flee and stopped immediately upon the activation of the squad car lights. Upholding the stop of this vehicle as valid would be tantamount to holding that the mere act of being in a cemetery after dark constitutes reasonable and articulable cause to justify an investigatory stop. We decline to take such a broad step. Such a generalized suspicion, without more, cannot support reasonable suspicion warranting invasion of a person's privacy by momentarily detaining and questioning them. Since this issue is dispositive of the case we need not address Standley's other claims.
Accordingly, we reverse Standley's conviction and remand to the district court for further proceedings consistent with this opinion.