Opinion
No. 5-440 / 04-1133
Filed June 29, 2005
Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.
Edward Lloyd appeals his conviction for possession of marijuana, second offense. AFFIRMED.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John Sarcone, County Attorney, and Mark Taylor, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
I. Background Facts Proceedings
On January 27, 2004, Lewis Systems security guards informed the Urbandale Police Department that a number of times over the course of a week they had observed a green four-door vehicle, with Iowa license plates 214 MIB, parked nearby when they made a cash drop at K's Merchandise. The security guards were concerned they were being observed in anticipation of a robbery. The guards stated they usually made a cash drop between 1:15 to 1:30 p.m.
The next day, at 1:20 p.m., police officer Andrew Dobbins observed a green Dodge Intrepid, with Iowa license plates 214 MBI, leaving the area of K's Merchandise as he approached. Officer Dobbins followed the vehicle south on 86th Street. He observed that the middle brake light was not illuminating on the left side. He initiated a traffic stop for an equipment violation. The driver of the vehicle was Edward Lloyd.
Officer Dobbins informed Lloyd that he was going to issue a warning citation to get the light fixed, and asked him to come back to the patrol car. He asked Lloyd if he had any weapons on him, and Lloyd replied in the negative. Officer Dobbins then asked if he could conduct a pat down search, based on his policy of conducting a pat down search before he put anyone in the patrol car. Lloyd agreed to the pat down search and raised his arms. Officer Dobbins felt something in Lloyd's pockets, and asked Lloyd what was there. Lloyd responded by pulling a package of crackers out of his left pocket. Officer Dobbins asked what was in the other pocket, and Lloyd pulled out a wooden "dugout."
From his experience, Officer Dobbins recognized the "dugout" as a container associated with drug use. Lloyd was placed in the patrol car. Officer Dobbins then opened the "dugout" and observed a marijuana pipe and marijuana. Officer Dobbins formally arrested Lloyd. Officer Eric Wilcutt arrived to impound the vehicle. Officers Dobbins and Wilcutt tested the brake lights on Lloyd's car, and at that time the center brake light and left brake light failed to illuminate at all.
Lloyd was charged with possession of a controlled substance (marijuana), in violation of Iowa Code section 124.401(5) (2003), and possession of drug paraphernalia, in violation of section 124.414. Lloyd filed a motion to suppress. The district court determined Officer Dobbins properly stopped Lloyd's vehicle for an equipment problem, pursuant to section 321.387, which provides, "All lamps and lighting equipment originally manufactured on a motor vehicle shall be kept in working condition or shall be replaced with equivalent equipment." The court also found Lloyd consented to the pat down search and to emptying his pockets. The court denied the motion to suppress.
Lloyd waived his right to a jury trial. The case was tried based on the minutes of testimony. Lloyd was found guilty of possession of marijuana, second offense. He was given a suspended sentence and placed on probation for a period of two years. Lloyd appeals, claiming the district court should have granted his motion to suppress.
II. Standard of Review
Because defendant's motion to suppress was based on alleged constitutional violations, our review is de novo in light of the totality of the circumstances. State v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001). We give deference to the district court's fact findings due to its ability to assess the credibility of the witnesses, but are not bound by those findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
III. Motion to Suppress A.
Lloyd contends the initial stop of his vehicle violated the Fourth Amendment of the United States Constitution and Article I, section 8 of the Iowa Constitution. He asserts that stopping his vehicle for an equipment failure was a pretext because Officer Dobbins was suspicious of his presence at K's Merchandise. He also claims the State failed to show there was an equipment problem.
Generally, an officer's decision to stop a vehicle is reasonable where the officer has probable cause to believe that a traffic violation has occurred. State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996). We consider the reasonableness of the stop based on an objective standard, and do not depend upon the actual motivation of the individual officer. Id. (citing Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 97-98 (1996)). Therefore, we do not consider whether Officer Dobbins's reasons for the stop were pretextual, and instead look to whether there was probable cause for the stop.
When an officer observes a violation of the traffic laws, however minor, the officer has probable cause to stop the motorist. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). This includes stops for equipment violations. See State v. Kinkead, 570 N.W.2d 97, 101 (Iowa 1997) (finding a stop based on a loud muffler, in violation of section 321.436, was valid); State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996) (finding a stop based on a failure to wear a seat belt, in violation of section 321.445(2), was valid).
In the present case, Officer Dobbins noticed the left light of the center brake panel was not illuminating. Section 321.387 provides, "All lamps and lighting equipment originally manufactured on a motor vehicle shall be kept in working condition or shall be replaced with equivalent equipment." Here, parts of the brake lights were not operating, and Officer Dobbins could properly stop Lloyd for violating section 321.387. We conclude Officer Dobbins had probable cause to stop Lloyd's vehicle.
In the past, § 321.387 (1991) required only that a vehicle be equipped with "a lighted rear lamp." See State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993). The statute has since been amended to require that all lamps and lighting equipment be kept in working condition. Id. at n. 1. Under the current statute it was not sufficient that some of Lloyd's brake lights were working.
B.
Lloyd claims the subsequent search of his person was unconstitutional. He asserts that he did not consent to the pat-down search. He also asserts that even if we were to find the pat-down search was consensual, that he did not consent to emptying his pockets. Lloyd contends that if there was consent, Officer Dobbins went beyond the scope of that consent.
The Fourth Amendment protects persons from unreasonable intrusions by law enforcement officers. State v. Lewis, 675 N.W.2d 516, 520 (Iowa 2004). A warrantless search is per se unreasonable unless it falls within a recognized exception. State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005). The State has the burden of to prove by a preponderance of the evidence that the circumstances of a case come within a recognized exception to the warrant requirement. Lewis, 675 N.W.2d at 522.
Consent is one of the exceptions to the warrant requirement. State v. Carlson, 548 N.W.2d 138, 141 (Iowa 1996). Consent may be express or implied. State v. McConnelee, 690 N.W.2d 27, 30 (Iowa 2004). Consent may be verbal, or may be expressed by gestures or other non-verbal conduct. Id. Officers are constrained to follow a person's limitations or qualifications to consent. Id.
In the suppression ruling, the district court determined Officer Dobbins's testimony on the issue of consent was more credible than that of Lloyd. The court concluded Lloyd consented to the pat-down search. The court also found Lloyd consented to the search of his pockets by voluntarily removing the items from his pockets. On issues of credibility, we give deference to the district court's factual findings. Turner, 630 N.W.2d at 606. We conclude Lloyd's constitutional rights were not violated because he consented to the search.
C.
On appeal, Lloyd claims that even if he consented to the search of his pockets, he did not consent to allowing Officer Dobbins to open the "dugout." He asserts that Officer Dobbins should have obtained a warrant prior to opening the "dugout." The State claims that once Lloyd removed the "dugout" from his pocket, Officer Dobbins recognized it as being associated with drug use, and he had probable cause to arrest Lloyd for possession of drug paraphernalia. The State argues that examining the interior of the "dugout" was a valid search incident to arrest. This specific issue was not addressed by the district court. We conclude this issue has not been preserved for our review. See State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997) (noting issues must be presented to and passed upon by the district court before they can be raised and decided on appeal).
We determine the district court properly denied Lloyd's motion to suppress. We affirm Lloyd's conviction.