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concluding there was reasonable suspicion for the traffic stop where the officer observed the vehicle weave from the center line to the right side boundary line several times and drive on the white shoulder lane marker
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No. 6-083 / 05-0762
Filed March 29, 2006
Appeal from the Iowa District Court for Black Hawk County, Nathan Callahan (suppression ruling) and Joseph Moothart (trial), District Associate Judges.
Lonnette Marie Fischels-Wordehoff appeals from her conviction and sentence for operating while intoxicated, second offense, following the district court's denial of her motion to suppress evidence obtained following a traffic stop. AFFIRMED.
Matthew T. Lindholm of Hoyt Law Firm, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Lonnette Marie Fischels-Wordehoff appeals following her conviction and sentence for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2003). She contends the district court erred in denying her motion to suppress evidence because the arresting officer did not have reasonable suspicion to stop her vehicle. We affirm.
I. Background Facts and Proceedings
Close to midnight on June 26, 2004, Black Hawk County Deputy Maureen Weber was following a black Honda Accord traveling south on La Porte Road near Washburn, Iowa. Deputy Weber's attention was drawn to the vehicle when she observed it wander and weave within its own lane of traffic. Weber did not initiate a traffic stop of the vehicle after her first observations. Instead, she continued to follow the vehicle for approximately seven minutes. During that time, Deputy Weber made additional observations which caused her to conclude the driver of the Honda was impaired and presented a danger to other drivers. Deputy Weber stopped the vehicle and determined Fischels-Wordehoff was driving the car. After the defendant failed a series of field sobriety tests, Weber arrested her for OWI.
La Porte Road is a two-lane highway marked with a yellow striped center line and a solid white fog line.
The State filed a trial information charging Fischels-Wordehoff with OWI, second offense. Fischels-Wordehoff filed a motion to suppress all the evidence obtained as a result of the stop. Her motion contended Deputy Weber had no "reasonable or probable cause" to stop her vehicle. Following a hearing, the district court found Deputy Weber had reasonable suspicion to stop Fischels-Wordehoff's vehicle, and overruled her motion to suppress.
Fischels-Wordehoff waived her right to a jury trial. Following a trial on the minutes of testimony, a judge found her guilty of OWI, second offense, and imposed sentence. Fischels-Wordehoff now appeals, contending the district court erred in denying her motion to suppress.
II. Scope and Standards of Review
Because Fischels-Wordehoff asserts that her constitutional rights under the Fourth Amendment were violated, our review is de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000) reversed in part on other grounds by State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We independently evaluate Fischels-Wordehoff's claim under the totality of the circumstances. State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997). Although we give deference to the district court's credibility assessments and fact findings, we are not bound by those findings. Turner, 630 N.W.2d at 606. If any evidence was obtained in violation of Fischels-Wordehoff's Fourth Amendment rights, it is inadmissible and must be suppressed regardless of its probative value or relevance. State v. Schrier, 283 N.W.2d 338, 342 (Iowa 1979).
III. Discussion
On appeal, Fischels-Wordehoff claims the district court erred in overruling her motion to suppress because the record does not show that Deputy Weber had reasonable suspicion to stop her vehicle.
In order to justify Deputy Weber's stop of Fischels-Wordehoff's vehicle, the State must prove the deputy had reasonable suspicion to believe criminal activity had occurred or was occurring. State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004). Unparticularized suspicion is insufficient to meet the reasonable suspicion standard, but the threshold for reasonable suspicion is considerably less than the standard for probable cause. State v. Kreps, 650 N.W.2d 636, 641-42 (Iowa 2002). We gauge the reasonableness of Deputy Weber's stop based on whether or not the facts available to the deputy at the moment of the stop would cause a reasonably cautious individual to deem the action taken by the officer appropriate. State v. Wiese, 525 N.W.2d 412, 414 (Iowa 1994) overruled on other grounds by State v. Cline, 617 N.W.2d 277, 281 (Iowa 2000).
In State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct.App. 1993), we found that when a police officer observed a defendant weave "from the center line to the right side boundary several times," this gave rise to the officer's reasonable suspicion for stopping the defendant. Our supreme court discussed the Tompkins holding in State v. Otto, 566 N.W.2d 509, 511 (Iowa 1997), when it stated:
We do not believe Tompkins should be read to hold that observation of a vehicle weaving within one's own lane of traffic will always give rise to reasonable suspicion for police to execute a stop of the vehicle. Rather, the facts and circumstances of each case dictate whether or not probable cause exists to justify stopping a vehicle for investigation.
More recently, our supreme court has held that an officer's observation of a vehicle crossing over the line of a painted median dividing a four-lane road 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.
With the foregoing principles in mind, we now turn to the facts in this case. As we have already mentioned, Deputy Weber's attention was first drawn to the defendant's vehicle when she observed it wandering in its lane of traffic. Although Deputy Weber was obviously concerned about the vehicle's movement, she decided to give the driver the benefit of the doubt, and she did not stop the vehicle.
Deputy Weber testified that in her experience, when a driver wanders between the lane markers of a road, the driver is often either elderly, very tired, or impaired by drugs or alcohol.
The deputy thought the car's unusual movement might be the result of the defendant using a cell phone or a CD player.
Deputy Weber continued to follow the vehicle down the road. The vehicle continued to weave while Weber followed it. Weber again became concerned, and she activated her vehicle's video camera to record the movements of the other car. After a few minutes, Deputy Weber turned the camera off because she did not witness any "severe action[s]" such as crossing the center line or driving onto the shoulder.
A short time later, Deputy Weber observed the Honda being driven on the white shoulder lane marker. According to Weber, the vehicle wandered over to the side of the road and then moved back to the shoulder marker. Once again, Weber turned the camera on because she saw the vehicle move in a manner that caused her to "again bec[o]me concerned that the driver was impaired." At that point, the camera recorded the vehicle being driven on the white shoulder lane marker and wandering back to the center of the road.
The videotape reveals that Deputy Weber began recording the movements of the defendant's car for the first time at 11:49 p.m. She turned the camera on and off several times before reactivating it for a final time at 11:55 p.m. The traffic stop was initiated at 11:56 p.m. The tape recorded three minutes of footage from the time Deputy Weber first activated the camera to the time of the traffic stop.
The defendant argues reversal is required here because of our supreme court's pronouncements regarding reasonable suspicion in State v. Tague, 676 N.W.2d at 205. In that case, an officer observed a vehicle driven by Tague enter a four-lane highway with two lanes of traffic headed north and two lanes headed south shortly before 2 a.m. Id. at 200. As Tague headed northbound in the inside lane of traffic, an officer observed the left tires of Tague's vehicle cross briefly over the left edge line of the divided highway and return to his lane. Id. At that point, the officer initiated an investigatory stop. Id. The supreme court concluded the officer lacked reasonable suspicion to stop Tague's vehicle. Id.
We believe Tague is distinguishable from the facts in this case. We agree that Deputy Weber's initial observation of the defendant's vehicle was insufficient to establish a reasonable suspicion to support an investigatory stop. However, Deputy Weber continued to follow the vehicle and observed additional weaving and drifting over a period of about seven minutes. In contrast, the officer in the Tague case did not observe any weaving. Moreover, the videotape in this case clearly shows the defendant's vehicle drifting from side to side in the lane and driving at one point on the white shoulder lane marker. Finally, it should be kept in mind that these events occurred late at night on a two-lane highway with other traffic in the area. We believe the facts of this case are closer to the facts in Tompkins, where the investigatory stop was upheld, than the facts in Tague.
Our supreme court has stated that "[a] good test of [reasonable] suspicion is that `the possibility of criminal conduct was strong enough that, upon an objective appraisal of the situation, we would be critical of the officers had they let the event pass without investigation.'" Kreps, 650 N.W.2d at 642-43 (quoting 4 Wayne R. LaFave, Search and Seizure § 9.4(b), at 148 (3d ed. 1996)). Based on an objective appraisal of the circumstances presented here, we would be critical of the deputy if she had failed to stop the defendant's vehicle to investigate the cause of the erratic driving she observed. Because we conclude Deputy Weber had reasonable suspicion to stop Fischels-Wordehoff's vehicle, we affirm the district court's denial of her motion to suppress, and we affirm Fischels-Wordehoff's conviction for OWI, second offense.