Opinion
No. 4-731 / 04-0791
Filed December 8, 2004
Appeal from the Iowa District Court for Polk County, William Price, District Associate, Judge.
William Lloyd appeals the denial of his motion to suppress evidence and his subsequent conviction and sentence of operating while intoxicated. AFFIRMED.
Thomas Webster, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Walter Lloyd appeals the denial of his motion to suppress and subsequent conviction and sentence for operating while intoxicated. Iowa Code § 321J.2 (2003). He contends the arresting officer 1) lacked probable cause to stop his vehicle, 2) lacked probable cause to arrest him, and 3) lacked reasonable grounds to administer the preliminary breath test (PBT) and improperly administered it. We will address each of these arguments.
Other arguments were raised in the district court but are not mentioned on appeal.
I. Probable Cause to Stop
Polk County Deputy Sheriff Kenneth Pilch stopped Lloyd for driving without license plates. At the suppression hearing, Lloyd and his older sister testified that his vehicle had a temporary license plate in the back window on the day he was stopped. Deputy Pilch had no recollection of this temporary plate. Lloyd argues that since his evidence was uncontroverted, "the court should have found there was no probable cause to stop the vehicle." As this issue implicates constitutional rights to be free from unreasonable searches and seizures our review is de novo. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004).
Lloyd appears to challenge his stop only under the Fourth Amendment to the United States Constitution.
"When a peace officer observes a violation of our traffic laws, however minor, the officer has probable cause to stop a motorist." Id.; see also Whren v. United States, 517 U.S. 806, 817, 116 S. Ct. 1769, 1776, 135 L. Ed. 2d 89, 100 (1996). Deputy Pilch testified that the vehicle Lloyd was driving had no plates. The absence of plates is a violation of Iowa Code section 321.37(1), which states in pertinent part:
Tague addressed the Iowa Constitution, but the cited principle is also pertinent to the U.S. Constitution.
Registration plates issued for a motor vehicle other than a motorcycle, motorized bicycle or truck tractor shall be attached to the motor vehicle, one in the front end the other in the rear.
However, the record is uncontroverted that Lloyd's vehicle had a temporary license plate affixed to the rear window. Such a plate is authorized by Iowa Code section 321.25, which states in pertinent part:
A vehicle may be operated upon the highways of this state without registration plates for a period of forty-five days after the date of delivery of the vehicle to the purchaser from a dealer if a card bearing the words "registration applied for" is attached to the rear of the vehicle.
Because Deputy Pilch's stop was based exclusively on the absence of plates and because Lloyd established he had a valid substitute for those plates at the time he was stopped, we conclude the deputy lacked probable cause for the stop.
This does not end our inquiry, however, because a stop is also permissible if a law enforcement officer has a reasonable suspicion of criminal activity. The officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); see also State v. Kreps, 650 N.W. 2d 636, 642 (Iowa 2002) (noting that reasonable suspicion standard requires "considerably less proof" than probable cause standard.). Officer Pilch's observation that Lloyd's vehicle had no plates was such a specific fact that justified a stop to further investigate whether a crime had been committed. See Iowa Code § 321.98 (classifying as a simple misdemeanor the operation of a vehicle without registration); State v. Jackson, 315 N.W.2d 766 (Iowa 1982) (upholding stop based on mistaken belief that vehicle had no proper registration.).
II. Probable Cause to Arrest
Lloyd next contends Deputy Pilch lacked probable cause to arrest him for operating while intoxicated. "Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it." State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990). Again, because this issue is of constitutional magnitude, our review is de novo. Id. at 622.
During the stop, Deputy Pilch observed that Lloyd had watery eyes and smelled of alcohol. Lloyd admitted to having a couple of drinks. A PBT recorded an alcohol level of .228. Lloyd failed three field sobriety tests.
Focusing on the field sobriety tests, Lloyd contends they could not "serve as evidence of probable cause to arrest" because they were not administered "in strict compliance with standardized testing procedures."
The district court rejected this argument, finding that the deputy "substantially conformed with the proper procedure for conducting" such tests. The court stated that there was "no evidence offered that they did not conform" and "the only evidence that would indicate that these tests were not properly done would be that the deputy appears through his testimony to be somewhat equivocal on the number of total cues available in a given test." We agree with this analysis. We also conclude that, even without the field sobriety tests, Deputy Pilch had probable cause to arrest Lloyd based on the other cited facts in the record.
III. Preliminary Breath Test
Lloyd contends the deputy 1) lacked reasonable grounds to request a PBT and 2) the PBT was improperly administered. Our review of these issues is for errors of law. State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003).
A. Reasonable Grounds
Iowa Code section 321J.5 provides in pertinent part:
1. When a peace officer has reasonable grounds to believe that either of the following has occurred, the peace officer may request that the operator provide a sample of the operator's breath for a preliminary screening test using a device approved by the commissioner of public safety for that purpose:
a. A motor vehicle operator may be violating or has violated section 321J.2 or 321J.2A.
The PBT results may be used to decide whether an arrest should be made or whether to request a chemical test. Iowa Code § 321J.5(2). "The reasonable grounds test is met when the facts and circumstances known to the officer at the time action was required would have warranted a prudent person's belief that an offense had been committed." State v. Braun, 495 N.W.2d 735, 738-39 (Iowa 1993).
Deputy Pilch had reasonable grounds to administer the PBT based upon Lloyd's red and watery eyes, the smell of alcohol coming from him, and his admission he had consumed alcohol that evening. Id. B. Administering of PBT
Lloyd also claims that the PBT result should be suppressed because Deputy Pilch did not observe the defendant for twenty minutes prior to testing. He offered no evidence that the standard procedure for administering the PBT included a twenty minute observation period.
We conclude the record fails to establish that the PBT was administered improperly. We further conclude the test was properly used as a basis for Lloyd's arrest and subsequent testing.
IV. Disposition
We affirm the district court's denial of Lloyd's motion to suppress and Lloyd's conviction and sentence for operating while intoxicated.