Summary
finding no reasonable suspicion where officer, in following truck for more than two miles, observed truck "drift slowly from the center of its lane towards the curb on the right side of the road approximately four times," and "come close to the curb on two occasions," and "slowed down at an intersection even though the light was green"
Summary of this case from State v. LoboOpinion
No. 5-358 / 04-1336
Filed May 25, 2005
Appeal from the Iowa District Court for Polk County, William A. Price, Judge.
Stuart Collin Boley appeals following his conviction for operating while intoxicated, second offense. REVERSED AND REMANDED.
Michael Lewis, Huxley, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Linda Zanders, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Stuart Collin Boley appeals from the judgment and sentence entered following his conviction for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2003). He contends the district court erred in denying his motion to suppress because the police lacked reasonable suspicion to stop his vehicle. We reverse.
I. Background Facts Proceedings
On November 8, 2003, at approximately 9:00 p.m., Clive Police Officer Stephen Stark observed a pickup truck slowly make a wide turn onto University Avenue from a parking lot and head east. Officer Stark decided to follow the truck because he thought that the manner in which the truck had turned onto University Avenue was unusual.
The officer followed the truck for approximately two miles. During that time, Officer Stark observed the truck drift slowly towards the curb on the right side of the road and then drift back to the lane line several times. The truck never made contact with the curb or the painted lane line. Officer Stark also noted that the truck slowed down at one point near an intersection even though the light was green. The truck never exceeded the speed limit and Officer Stark did not observe any other traffic violations while he was following the truck. Based on the above facts, Officer Stark decided to initiate a traffic stop.
After Officer Stark pulled the truck over, he identified the driver as Stuart Boley. Mr. Boley consented to perform some field sobriety tests. Officer Stark concluded that Boley failed the tests. Boley also consented to a preliminary breath test, which revealed that he was over the legal limit. Officer Stark subsequently arrested Boley for operating while intoxicated.
Boley tested .10.
On December 9, 2003, the State charged Boley with operating while intoxicated, second offense. Boley moved to suppress evidence obtained as a result of the stop of his truck by police. The district court denied his motion. Following a bench trial on the minutes of testimony, the court found Boley guilty as charged. Boley now appeals.
II. Scope of Review
Boley challenges the district court's denial of his motion to suppress, which implicates his constitutional rights; as a result our review is de novo. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). We make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
III. Discussion
The State claims that Boley's driving suggested he was intoxicated which warranted the stop of his vehicle. To justify such a stop, the police need only have reasonable suspicion, not probable cause, to believe criminal activity has occurred or is occurring. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).
When a person challenges a stop on the basis that reasonable suspicion did not exist, the State must show by a preponderance of the evidence that the stopping officer had specific and articulable facts to reasonably believe criminal activity may have occurred. State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d 601. "Unparticularized suspicion" is an unacceptable reason for a stop. State v. Jones, 586 N.W.2d 379, 382 (Iowa 1998).
Whether a reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting the officer, including all information available to the officer at the time the officer makes the decision to stop the vehicle. State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002). The legality of the stop does not depend on the actual motivations of the officer involved in the stop. Heminover, 619 N.W.2d at 357. Evidence obtained through an unjustified investigatory stop must be suppressed. Jones, 586 N.W.2d at 382.
In State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct.App. 1993), this court held that a police officer's observance of the defendant's car weaving from the center lane to the right side of the boundary several times, even though the vehicle never crossed the center line or the right side edge line, gave the officer reasonable suspicion to stop the defendant for investigatory purposes. Our Supreme Court discussed the Tompkins holding in Otto, 566 N.W.2d at 510-11. The court stated: "[w]e do not believe Tompkins should be read to hold that observation of a vehicle weaving within its own lane of traffic will always give rise to reasonable suspicion for the police to execute a stop of the vehicle." Otto, 566 N.W.2d at 511. The supreme court went on to affirm that the facts and circumstances of each case will govern the reasonable suspicion analyses. More recently in State v. Tague, 676 N.W.2d 197 (Iowa 2004), our supreme court held that a vehicle crossing over the left edge line of the road one time for a brief period was not sufficient to give rise to a reasonable suspicion that the driver was intoxicated or fatigued. Tague, 676 N.W.2d at 205.
In Otto, our Supreme Court found an officer had reasonable suspicion to stop a defendant who was driving forty in a fifty-five mile per hour speed zone, changing her speed erratically, veering left and right at sharp angles, and constantly going back and forth from left to right over a three and a half mile distance.
In this case, Officer Stark observed a truck a make wide, but legal, turn onto University Avenue. He then followed the truck for more than two miles. Officer Stark observed Boley's truck drift slowly from the center of its lane towards the curb on the right side of the road approximately four times. He testified the truck came close to the curb on two occasions but did not touch it. Officer Stark also noted that Boley briefly slowed down at one point near an intersection even though the light was green.
Officer Stark began videotaping Boley's truck after it turned onto University Avenue. The videotape was played at the suppression hearing. When asked if he could see any weaving on the videotape the officer replied, "When I viewed the tape I could see some points where I thought — I was referring to my report. But its difficult to see because of the nature of the video camera with its — I guess the lens the camera uses." The officer confirmed that the weaving he described was more evident to his naked eye than is apparent from the videotape of the incident.
We conclude Boley's driving did not amount to the weaving or erratic speeds observed by the officers in Tompkins and Otto. Officer Stark observed no speeding or other traffic violations, no pronounced weaving or veering, and no driving which could reasonably be described as erratic. Because we do not believe the officer had reasonable suspicion to stop Boley's vehicle, we reverse Boley's conviction and remand for further proceedings consistent with this opinion.