Opinion
No. 1-963 / 01-0571.
Filed February 20, 2002.
Appeal from the Iowa District Court for Pottawattamie County, KATHLEEN KILNOSKI, District Associate Judge.
The State appeals from the district court's ruling on Michael Kreps' motion to suppress, finding that probable cause did not exist to support the stop of Kreps' vehicle. AFFIRMED.
Thomas J. Miller, Attorney General, and Mary Tabor, Assistant Attorney General, for appellant.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
The State appeals from the district court's ruling on defendant-appellee Michael Kreps' motion to suppress, finding that probable cause did not exist to support the stop of Kreps' vehicle. The State claims the district court erred by sustaining the suppression motion because the officer had reasonable suspicion to support the investigatory stop. We affirm.
Background facts. While on patrol, a Carter Lake police officer observed Kreps' vehicle traveling north on 13th street at about 2:45 a.m. The officer turned around to get behind Kreps' vehicle. Kreps turned left on to Cachelin. The officer saw the vehicle turn right at the next intersection on to 11th street. He followed the vehicle as it turned right at the next intersection on to Avenue P, right again at the next intersection on to 13th street, and right again at the next intersection back onto Cachelin. A passenger jumped out and ran between two houses. Kreps stopped at the curb as if parking. The officer then activated his lights.
The officer asked Kreps for his license, registration, and proof of insurance. At the time, the officer said he smelled alcohol. He asked Kreps to get out of the car and to perform field sobriety tests. The tests suggested alcohol or narcotic usage. The officer had Kreps drive to the police station where he requested a urine sample. Kreps was charged with driving while intoxicated. He filed a motion to suppress evidence claiming the officer did not have grounds for an investigatory stop.
Although not an issue on appeal, we note the officer should not have allowed Kreps to drive to the police station if he believed Kreps was under the influence of alcohol or narcotics.
At the hearing on the motion to suppress, the officer testified Kreps sped up as the officer was catching up. He described it as an attempt to lose him, "like a cat-and-mouse game." On cross-examination, when asked if he stopped Kreps for going around the block, the officer replied, "The evasive manner that he was speeding up, trying to — he was going faster. I couldn't get a radar lock on him because of the short distance from corner to corner." The officer admitted Kreps was not charged with speeding or running any stop signs. On redirect, when asked if there were additional details, other than Kreps' going around the block, which resulted in his being stopped, the officer replied, "The speed that the vehicle was going at making the corners, turning at the corners, was relatively faster than normal traffic does. I felt like there was evasive manner here." He also mentioned he "felt like there was something wrong" because of the passenger who jumped out and took off running.
The court found:
The officer testified that he thought the car was doing a cat-and-mouse evasive action, and although the officer testified that he thought the car was going faster than normal around corners or faster than normal drivers would go around corners, I think, when put to the true question, I don't think the officer could say the car was exceeding the speed limit, or that he did not see a traffic violation that the driver committed.
So, really, the only thing that the officer has is this person getting out of the car and running through the houses, so I don't think that that leads to probable cause to stop the driver. I don't think that there is reasonable suspicion of criminal activity on the part of the driver because someone gets out of the car and runs through a yard, so I'm going to grant the motion.Scope of review. A challenge to a district court's ruling on a motion to suppress implicates the Fourth and Fourteenth Amendments of the United States Constitution. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). Consequently, our review is de novo. State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000).
Analysis. A warrantless search is per se unreasonable unless it comes within a recognized exception of the warrant requirement. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997). One well-established exception to the warrant requirement allows an officer to stop an individual or vehicle for investigatory purposes based on a reasonable suspicion that a criminal act has occurred or is occurring. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). An officer must have reasonable cause to believe a crime may have occurred. See State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997); State v. Haviland, 532 N.W.2d 767 (Iowa 1995). In determining whether an officer had a reasonable suspicion sufficient to permit an investigative stop, the court must determine whether the facts articulated by the officer support the intrusion on the individual's privacy and "whether the scope of the intrusion is reasonably related to the circumstances which justified the intrusion." State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993) (citing State v. Cooley, 229 N.W.2d 755, 760 (Iowa 1975)). An officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. State v. Haviland, 532 N.W.2d at 768. We apply an objective standard: whether the facts available to the officer at the time of the stop would lead a reasonable person to believe that the action taken by the officer was appropriate. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; Mitchell, 498 N.W.2d at 693. The State bears the burden of showing the officer had "specific and articulable cause to support a reasonable belief that criminal activity may have occurred." Kinkead, 570 N.W.2d at 100 (quoting State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980)).
In the case before us, the officer could not point to anything that caused him to turn around to follow Kreps' vehicle. Kreps drove "relatively faster" than "normal" traffic, but apparently did not exceed the speed limit or fail to stop at stop signs when turning. The officer "felt" Kreps was trying to evade him. Courts in other states have held merely avoiding a police car does not provide reasonable grounds for stopping a vehicle. See State v. Sarhegyi, 492 N.W.2d 284, 287 (N.D. 1992) (stating mere avoidance of a police car is insufficient unless erratic, fast, and extreme) (citing State v. Anderson, 454 N.W.2d 763 (Wis. 1990)); People v. Lambert, 436 N.W.2d 699 (Mich. 1989) (holding lawful driving marked by mere avoidance of police car did not give rise to reasonable grounds that criminal activity was afoot). The driving described by the officer was not unlawful nor "erratic, fast, and extreme."
The State argues Kreps' driving, coupled with the passenger's jumping out of the car before it completely stopped and then running away between two houses, provides reasonable grounds to stop Kreps' vehicle. Although we agree the passenger's actions could be considered suspicious, they only provide grounds for the officer to stop and investigate the passenger. The passenger's actions do not provide grounds to stop the driver, Kreps.
In contrast to the circumstances in State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993), the circumstances before us do not provide the combination of various factors sufficient to allow an investigatory stop of Kreps' vehicle. The district court correctly granted Kreps' motion to suppress the evidence.
AFFIRMED.