Opinion
No. 5-786 / 05-0484
Filed November 9, 2005
Appeal from the Iowa District Court for Clayton County, J.G. Johnson and Joseph Moothart, Judges.
Jeremy Creede Bevard appeals the judgment and sentence entered upon his conviction for operating a motor vehicle while intoxicated, first offense. AFFIRMED.
Dave Nagle, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant County Attorney, and Kevin H. Clefisch, County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Jeremy Creede Bevard appeals the judgment and sentence entered upon his conviction for operating a motor vehicle while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2 (2003). He contends the district court erred in denying his motion to suppress because the district court "incorrectly interpreted Iowa Code section 321.354 and, in doing so, violated [Bevard's] constitutional right against unreasonable stops, searches and seizures." We affirm.
The record reveals the following facts. At approximately 11:26 p.m. on January 17, 2004, Clayton County Deputy Sheriff Ryan Johnson was on routine patrol in a marked law enforcement vehicle and was stopped at a stop sign facing east on the southbound off ramp from Highway 18. Deputy Johnson observed Bevard approaching from the north heading south on Business Highway 18, a through street at the intersection. Bevard then stopped his vehicle at the intersection even though he had no stop sign or signal to do so and there were no other vehicles, other than Johnson's, at or near the intersection. After stopping for approximately ten seconds Bevard proceeded southbound on Business Highway 18 at a high rate of speed. Deputy Johnson followed Bevard south for approximately 500 feet and then pulled Bevard over. Johnson issued Bevard a citation for "stopping on paved part of highway."
As a result of the stop, Bevard was also charged with OWI. He filed a motion to suppress the results of his breath test, contending that in stopping him Deputy Johnson did not have reasonable grounds to believe he was committing a public offense. After hearing, the district court overruled Bevard's motion, concluding the Iowa Supreme Court had held in Pinckney v. Watkinson, 254 Iowa 144, 152-54, 116 N.W.2d 258, 263 (1962), that the prohibition in section 321.354 against stopping a vehicle on a highway applies to momentary, as well as extended, stops. It concluded the stop was a proper investigatory stop because Deputy Johnson had specific and articulable cause to reasonably believe Bevard had violated section 321.354. Bevard filed a motion to reconsider and expand his motion to suppress. The district court allowed the expansion of Bevard's motion, but again overruled the motion.
Bevard appeals, contending the court incorrectly interpreted section 321.354 in finding that "stopping" on a highway includes even momentary stops, and that such an interpretation violated his "constitutional right of privacy" as embodied in the Fourth Amendment to the United States Constitution.
We review the district court's interpretation of section 321.354 for correction of errors at law. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). Our review of an alleged violation of a constitutional right is de novo; we independently evaluate the totality of the circumstances as shown by the entire record. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).
Subject to exceptions for certain locations not involved in this case, and subject to other exceptions having no application in this case (school buses, other vehicles required to stop for school buses stopped to receive or discharge pupils, vehicles turning at an intersection, and maintenance vehicles operated by a highway authority when necessary and with early warning), the statute in question provides that "a person shall not stop, park, or leave standing a vehicle, whether attended or unattended . . . [u]pon the paved part of a highway when it is practical to stop, park, or leave the vehicle off that part of the highway. . . ." Iowa Code § 321.354.
We agree with the district court that our supreme court has previously decided the prohibition found in section 321.354 against stopping a vehicle on the traveled portion of the highway includes momentary, as well as extended, stops. In Pinckney the court found that "[a]ll voluntary stopping of a vehicle which amounts to parking or leaving a vehicle standing, attended or otherwise, with the exceptions stated therein, is prohibited by [section 321.354]." Pinckney, 254 Iowa at 153, 116 N.W.2d at 263. Thus, Johnson had reasonable cause to believe Bevard had committed a traffic offense in violation of section 321.354 when he stopped him. When a peace officer observes a traffic offense, however minor, the officer has probable cause to stop the driver of the vehicle. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). Accordingly we, like the district court, conclude Deputy Johnson had reasonable suspicion to conduct an investigatory stop of Bevard's vehicle based on his observation of Bevard stopping his vehicle in the traveled part of the highway.
In reaching our conclusion we do note that our supreme court has identified and recognized certain situations in which stopping upon a highway is not prohibited by section 321.354. These include stopping (1) due to the vehicle's disability, (2) by and for school buses, (3) in response to orders of a traffic officer, (4) where it would be hazardous to proceed, and (5) where made in the exercise of due care or caution under the circumstances. See Pinckney, 254 Iowa at 153, 116 N.W.2d at 263. However, there is no substantial evidence that Bevard stopped on the highway for any of these reasons, including an exercise of due care or caution under the circumstances. Deputy Johnson was stopped at a stop sign at an intersection as Bevard approached the intersection on a through highway. Johnson could not proceed into the intersection because of Bevard's approach. Under the circumstances the exercise of due care or caution did not require Bevard to make an otherwise prohibited stop upon the highway.
The essence of Bevard's motions to suppress was that section 321.354 did not prohibit "momentary stops" upon the highway, such as the stop he had made. His motions did not expressly contend that an interpretation of section 321.354 which prohibited such stops would render the statute, either on its face or as applied to his stop, unconstitutional. More importantly, the district court did not in either of its suppression rulings address or pass upon the constitutional issue which Bevard now attempts to present on appeal. Issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997). We require error preservation even on constitutional issues. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). Error was not preserved on Bevard's constitutional claim and we do not further address it.
We conclude Deputy Johnson had reasonable grounds to believe Bevard committed a traffic violation and thus to conduct an investigatory stop of his vehicle, and the district court therefore did not err in denying Bevard's motion to suppress. Bevard did not preserve error on his contention that interpreting section 321.354 to prohibit momentary stops not authorized by statute or case law would violate his Fourth Amendment rights. Bevard's conviction for OWI, first offense, is affirmed.