Opinion
No. 2-097 / 01-0724
Filed October 16, 2002
Appeal from the Iowa District Court for Adams County, David L. Christensen, Judge.
The State was granted discretionary review to challenge the district court's ruling, which granted the defendant's motion to suppress. AFFIRMED.
Thomas J. Miller, Attorney General, Richard Bennett And Mary Tabor, Assistant Attorneys General, and Earl Hardisty, County Attorney, for appellant
Linda Del Gallo, State Appellate Defender, Martha Lucey, Assistant Appellate Defender, and Constance Grignon, Student Intern, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
William John Dimmler was charged with drug and weapons violations after a search of his person and his vehicle. The trial court granted his motion to suppress finding the initial stop of his vehicle violated his Fourth Amendment rights. The State was granted discretionary review to challenge the district court's decision. We affirm the decision of the district court.
I. Background Facts and Proceedings.
During the early evening of November 11, 2000, the Adams County Sheriff's Department executed a search warrant at the rural residence of Deb Klimek. The warrant specifically permitted a search of outbuildings, persons and vehicles located on the property for drugs, paraphernalia and precursors for the manufacture of methamphetamine.
During the search, officers found components of a methamphetamine lab in two buildings on the property. For safety reasons, the officers vacated the buildings and requested assistance at the scene from the State's clandestine lab team. Most of the investigating officers left the property while awaiting the arrival of the special team. Two reserve officers were left behind to secure the premises and keep the search warrant active. A deputy sheriff specifically instructed the reserve officers to stop and detain all vehicles entering the premises.
The reserve officers sat in an unlit and marked patrol car with a view of the house, the outbuildings, and the driveway. Approximately thirty to forty minutes after the other officers left the premises, a pickup truck pulled into Klimek's driveway and then began to back up. According to the officers, their patrol car was in a position where it could be seen by cars entering the driveway. The officers immediately activated the lights on top of their patrol car and the pickup stopped before leaving. Reserve officer Norvan Brown then drove the patrol car to the pickup and parked next to it.
Officer Brown approached the vehicle and tapped on the glass of the driver's side window. The driver, William Dimmler, rolled down his window and Brown asked Dimmler for his license and registration. As Dimmler complied with his request, Brown detected a strong odor of ether coming from within the pickup. Brown asked the other officer to run Dimmler's license, and called for backup. A passenger in the vehicle identified himself as Larry Mullen. Deputy Joe Wilson soon arrived and took charge of the investigation.
Dimmler told Deputy Wilson he was coming to Klimek's to see his girlfriend and drop off the swing set in the back of his truck. While talking with Dimmler, Deputy Wilson noticed a gun protruding from under the seat of the vehicle. Subsequently, Dimmler was asked to exit the vehicle. Deputy Wilson discovered a marijuana pipe on the floor of the pickup and a quantity of marijuana hidden in a jug in the car. Dimmler and his passenger were placed under arrest for possession of marijuana and drug paraphernalia. A second weapon was discovered during a pat-down search of Dimmler. Methamphetamine compound was found in another container in the pickup during a subsequent search of the vehicle.
Later, Dimmler was charged with manufacturing a controlled substance, methamphetamine, while in the possession of a firearm in violation of Iowa Code sections 124.401(1)(b)(7) (1999) and 124.401(1)(e); possession with intent to deliver a controlled substance, marijuana, while in the possession of a firearm in violation of sections 124.401(1), 124.401(1)(d) and 124.401(1)(e); unlawful possession of a firearm in violation of section 724.4(1); and two counts of failure to have proper excise tax stamps in violation of section 435B.2.
Defendant filed a motion to suppress, arguing the search was without warrant or consent and in violation of his Fourth Amendment rights. Dimmler asserted his pickup was illegally stopped after he started backing out of the driveway of the Klimek residence. Claiming there was a lack of a reasonable and articulable suspicion to justify the stop, Dimmler argued all evidence seized as a result of the illegal stop must be suppressed. The State resisted. Following hearing, the district court ruled that because the initial stop of the defendant's vehicle was improper, the evidence recovered after the stop should be excluded from trial. Because the trial court found the stop itself was illegal, it found it unnecessary to address the justifications provided for searches subsequent to the stop.
The State filed an application for discretionary review of the trial court's suppression ruling. The supreme court granted discretionary review, and the case was transferred to the court of appeals.
II. Scope of Review.
Our review of constitutional rights under the Fourth Amendment is de novo. State v. Gillespie, 619 N.W.2d 353, 358 (Iowa 2000). We make an independent evaluation under the totality of the circumstances. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give deference to the district court's findings of fact because of its opportunity to evaluate the credibility of witnesses. Id. However, we are not bound by those determinations. Id.
III. Applicable Law.
Searches conducted without a warrant are per se unreasonable unless an exception to the warrant requirement applies. 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)). One such exception is an investigatory stop. Id. A seizure occurs when an officer by means of physical force or show of authority in some way restrains the liberty of a citizen. Terry, 392 U.S. at 19, 88 S.Ct. at 1879, 20 L.Ed.2d at 905; State v. Johnson, 395 N.W.2d 661, 664 (Iowa Ct.App. 1986). An investigatory stop is a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996); State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000).
The Fourth Amendment permits an investigatory stop when an officer has a reasonable suspicion that criminal activity is afoot. Kinkead, 570 N.W.2d at 100. An investigatory stop of a vehicle is constitutionally permissible only if the officer who has made the stop can point to "specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion." Heminover, 619 N.W.2d at 357 (quoting Terry, 392 U.S. at 22-23; 88 S.Ct. at 1880, 20 L.Ed.2d at 906). Circumstances raising a mere suspicion or curiosity are not enough. Id. at 358. An individual has a right to simply go about their 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 at 361.
IV. Discussion.
With these principals in mind, we examine the record in this case. The State does not dispute that reserve officer Brown effected a detention of the defendant and hence, a seizure of his person and vehicle. The sole issue on appeal is whether the stop of defendant's vehicle was constitutionally permissible. The State argues the officers had a reasonable cause or suspicion to stop the vehicle for investigatory purposes. Dimmler disagrees.
The State does not contend that when police have a warrant to search a residence, the mere arrival or presence of an individual at the scene being searched, by itself, justifies detention. In support of its position that reasonable cause existed to stop the defendant's vehicle, the State cites several cases where a suspect's flight or furtive movements led to a justifiable investigatory stop.
In State v. Cline, 617 N.W.2d 277, 283 (Iowa 2000), the defendant's presence on property where drug dealing had occurred and her subsequent attempt to leave the scene without being detected in a vehicle with its lights out justified the stop. Likewise, in State v. Richardson, 501 N.W.2d 495, 496-97 (Iowa 1993), our supreme court held there were sufficient grounds for an investigatory stop where, among other suspicious circumstances, a deputy sheriff in a marked patrol car observed a vehicle at 12:40 a.m. parked next to a chain link fence in a nonresidential area where there were no legitimate attractions, the area had been frequently burglarized, and the deputy observed what he considered to be deliberately furtive actions when the defendant pulled out just as the officer completed his U-turn and began approaching the defendant. In Wardlow, the Court found that defendant's unprovoked flight upon noticing officers in an area of heavy narcotics trafficking provided a basis for a finding of reasonable suspicion of involvement in criminal activity. Wardlow, 528 U.S. at 124-25, 120 S.Ct. at 676-77, 145 L.Ed.2d. at 576-77.
We conclude these cases are distinguishable from the case at hand. Dimmler approached the premises being searched in the early evening hours, not in the early morning. He pulled in the driveway with his lights on, traveled two-thirds its length, and then began to back out. The officers who were present had no prior information indicating Dimmler or his pickup was involved in criminal activity. The officers were aware of ongoing criminal activity at the premises being searched, but had no information connecting the defendant to this activity. In addition, no evidence was offered that Dimmler's actions were considered suspicious, elusive, erratic or rose to the level of flight. Officer Brown surmised that Dimmler began to back out after his pickup's headlights shone upon the patrol car. This inference is certainly reasonable; however, the trial court noted that the officers would have been unable to identify the number or identity of the occupants of the vehicle, let alone to have observed their actions inside the pickup, because of the distance between the patrol car and the pickup and the time of day. We agree with the trial court's conclusion that Dimmler's actions cannot reasonably be characterized as flight. Dimmler did not spin his wheels backing out or attempt to speed away. He stopped his pickup as soon as the lights of the patrol car were activated. There is no evidence Dimmler made any furtive movements. Neither Dimmler or his passenger tried to run away from the vehicle. Cf. State v. Kreps, No. 01-571 (Iowa Sept. 5, 2002) (holding reasonable suspicion exists where the officer following a vehicle observes a vehicle stop, a passenger of the vehicle jump out, and the passenger then run through the adjacent back yard).
Our review of the totality of the circumstances makes clear that Dimmler's vehicle was not stopped because of suspicious behavior. The stop occurred because a deputy sheriff instructed the reserve officers, who remained at the scene where the search was being conducted, to stop and detain anyone who entered the farm driveway. Like the trial court, we conclude the officers did not have reasonable cause to stop Dimmler's vehicle.
V. Disposition.
We agree with the trial court's finding there was a lack of reasonable and articulable suspicion to stop Dimmler's vehicle when it arrived on the property subject to the search warrant. We therefore affirm the trial court's ruling sustaining the defendant's motion to suppress evidence. We remand for further proceedings consistent with this opinion.