Opinion
No. 4-864 / 04-0076
Filed February 9, 2005
Appeal from the Iowa District Court for Pottawattamie County, Gordon C. Abel and Timothy O'Grady, Judges.
Charles Dost appeals from his conviction and sentence for possession of marijuana with intent to deliver. AFFIRMED.
Frank Robak, of the Robak Law Offices, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Matt Wilber, County Attorney, and Jeffrey TeKippe, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., Mahan, Miller, and Vaitheswaran, JJ., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Charles Dost appeals from his conviction and sentence for possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d) (2003). We affirm.
I. Background Facts Proceedings
Dost was stopped for speeding by Iowa State Trooper Jason Bardsley on Interstate 80 near Council Bluffs. After issuing Dost a warning ticket, Bardsley asked if he would answer a few more questions. Based substantially on Dost's false answers to questions concerning his criminal history and nervousness when asked if there was marijuana in his car, Bardsley summoned the assistance of a drug dog.
After the dog indicated that there were drugs in Dost's vehicle, Dost was handcuffed and read his Miranda warning. Dost was specifically told he was being detained for investigatory purposes and was not under arrest. Bardsley then began to search Dost's car. For reasons explained later, Dost's vehicle was moved to a nearby business where the search was completed. During the search, Bardsley found four packages of marijuana in the trunk of Dost's car.
The State charged Dost by trial information with possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d) (Count I), keeping a premises which is used by persons possessing or selling controlled substances in violation of Iowa Code section 124.402(1)(e) (Count II), and failure to affix a drug tax stamp in violation of Iowa Code sections 453B.3 and 453B.12 (Count III). Dost filed a timely motion to suppress evidence obtained as a result of the warrantless search of his vehicle and seizure of his person, claiming both were violations of his constitutional rights. The trial court's resulting findings of fact provide:
From the facts here, there is a proper traffic stop for an apparent speed violation. That contact was initiated about 10:30 and was concluded about 10:45 when the officer returned the registration and license materials and whatever else is handed over to the officer back to Mr. Dost. At that point in time, the defendant was free to go. The officer's contact had concluded. The officer asked permission to ask a couple more questions and asked his questions. The interaction from that point on, coupled with the officer's observations of the conditions of the car, consideration of the conversations about where Mr. Dost had been, his business, the route he was taking, other inconsistencies, gave proper rise to his conclusion at that time appropriate to summon the drug sniffing dog.
The detention of Mr. Dost commenced approximately about 10:45. Within 15 minutes or so, Officer Hitchcock with his canine arrived, and within five minutes after the arrival, commenced the procedure with the dog and the dog gave his alert to the presence of drug odor. At that point in time, it was appropriate for the officers to conduct a search of the vehicle under the exigent circumstances of the motor vehicle being on the highway. It is entirely appropriate for the officers to remove the vehicle from the highway within a short distance of two miles to the safety of the tire shop and thereto complete the search of the vehicle.
The defendant was not placed under arrest while out on the highway initially. That was simply a proper detention during the continue — the continuation of the investigation. Miranda warning was given once the dog had alerted; and then once the drugs were found, the defendant was placed under arrest.
The Court finds that even the statements made in conversation in the trooper's car were not the results of a custodial interrogation and are — would not be suppressable.
Dost's motion was denied. Dost was found guilty on Count I, after a bench trial on the stipulated minutes of testimony. The court sentenced Dost to serve a five-year indeterminate term of imprisonment, revoked his driver's license for 180 days, and ordered him to pay a fine of $750 along with applicable court costs and surcharges. Dost appeals, claiming:
I. [THE] TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS UNLAWFUL SEARCH, STATEMENTS, AND FRUITS/AFFIDAVIT.II. Standard of Review
Our review of a trial court's denial of a defendant's suppression motion is de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We "make an independent evaluation of the totality of circumstances as shown by the entire record." Id. (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993)). We give deference to the fact-findings of the trial court based on its opportunity to observe the witnesses and assess their credibility, but we are not bound by those findings. Id. III. The Merits
The gist of Dost's challenge to the trial court's ruling is that the seizure after the traffic stop was completed was unlawful. He specifically claims that there were no reasonable suspicions supporting Bardsley's decision to summon a drug dog, his statements concerning recent marijuana use were made without the benefit of Miranda warnings, and his extended detention and removal from the scene of the stop were not supported by probable cause.
The record indicates that after Bardsley issued Dost a warning ticket, he asked Dost if he had any questions, and told him that was "pretty much all [he] had." As Dost was leaving the patrol car, Bardsley inquired if he could ask Dost a few more questions. Dost nodded his head affirmatively and remained in the car. At that point, the traffic stop had ended, and the ensuing encounter became consensual. See State v. Smith, 683 N.W.2d 542, 548 (Iowa 2004) (citing United States v. White, 81 F.3d 775, 778-79 (8th Cir. 1996)).
During the hearing on Dost's motion to suppress Bardsley explained his suspicions and reasons for requesting the assistance of a drug dog. He testified:
Just a couple of things I noted during the traffic stop that he was coming from South Dakota going — coming — excuse me — coming from Michigan going to South Dakota, and on his return trip, his return trip was a little bit different route than most people would take. I thought maybe he should stay a little farther north, farther southern route to take. Mr. Dost stated that he left on Wednesday. He stopped for a hotel in the Sioux City area on the first day when he was — I felt which was fairly close in, 60 to 80 mile range of where he was going. Didn't understand why if it was a friend why you wouldn't continue through, spend the night there. On his return trip, he left that residence on Friday, he stated, and stayed in a hotel half way between somewhere — he wasn't quite sure, a Super 8 somewhere between Omaha/Council Bluffs area and Sioux City. . . . So cut his trip short, basically that he only was there for a day. He spent one night there. Also stated that he had a criminal record for drugs. Lied to me about his criminal record and criminal history. Check of that I found out he had been convicted and spent time in a prison system for delivery of cocaine or transportation of cocaine. Asked him about his family, he took this trip to go to South Dakota to see a friend, but yet he stated he left his family at home, left his employment in the middle of the week where he's saying he's a self-employed drywaller. And also during the conversation while waiting, I asked if he had ever recently done any marijuana, drugs, anything like that; and Mr. Dost admitted smoking marijuana one week prior.
. . . .
The lived-in look, basically you could tell that Mr. Dost had basically been driving nonstop. In and of itself, it's not much, but when you put it in totality of the circumstances — the fast food, the high caffeine drinks to stay awake, keeping a cooler in the vehicle, no visible luggage that I could see, and then Mr. Dost's behavior when — or physical traits I noticed that when asking questions about specific drugs and items in the vehicle that the anxiety levels went up, blood pressure went up, stuff like that.
. . . .
In the totality of the circumstances that they could indicate that some kind of illegal activity is taking place.
Like the trial court, we find the facts recited in Bardsley's testimony are sufficient to support his suspicions and resulting request for a drug dog. See Bergmann, 633 N.W.2d at 337 (defendant's nervousness near the trunk of the vehicle created reasonable suspicion to call for drug dog); see also United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998) (finding reasonable suspicion to wait for drug dog based on defendant's extreme nervousness and inconsistent statements); United States v. Bloomfield, 40 F.3d 910, 912-13, 918-19 (8th Cir. 1994) (concluding wait for drug dog justified by defendant's nervousness, evasive answers, and refusal to consent to search). We also find the drug dog's indication that there were drugs in Dost's vehicle provided the requisite probable cause and exigent circumstances supporting both Dost's extended detention and warrantless search of the vehicle. Bergmann, 633 N.W.2d at 335.
We additionally reject Dost's claims concerning his extended detention and removal along with his vehicle to another location to complete the search. In Iowa, a drug dog inspection must be conducted within a reasonable amount of time from the initial stop and cannot be prolonged without a sufficient basis. Id. Dost's twenty-minute wait for the drug dog was not unreasonable. See State v. Aderholdt, 545 N.W.2d 559, 564 (Iowa 1996) (concluding a fifty-minute wait for a drug dog and tow truck did not exceed reasonable scope of Terry stop). Moreover, the decision to remove Dost's vehicle to another location to complete the search was supported by legitimate practical and safety concerns, as well as the earlier described probable cause. See Chambers v. Maroney, 399 U.S. 42, 52 n. 10, 90 S. Ct. 1975, 1981 n. 10, 26 L. Ed. 2d 419, 429 n. 10 (1970) (recognizing that it was reasonable to move a vehicle to the station where a careful search was impractical at the scene).
Lastly, we find no merit in Dost's claim that his statements concerning recent marijuana use made while waiting for the drug dog to arrive should have been suppressed. Before a person who is in custody may be interrogated, he must be advised of certain constitutional rights. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966). However, it is well settled that "persons temporarily detained pursuant to [a traffic stop] are not `in custody' for the purposes of Miranda." Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 335 (1984); see also State v. Scott, 518 N.W.2d 347, 350 (Iowa 1994) ("the right to interrogate during a `stop' is the essence of Terry and its progeny"). Under these circumstances, Dost's detention pending the arrival of a drug dog was not custodial.
We accordingly affirm the trial court's ruling on Dost's motion to suppress in its entirety.
AFFIRMED.
All judges concur except Mahan and Vaitheswaran, JJ., who dissent.
I respectfully dissent. I would conclude the district court erred in failing to grant the defendant's motion to suppress.
Vaitheswaran, J., joins this dissent.