Opinion
No. 5-757 / 05-0022
Filed November 9, 2005
Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.
Bruce Pettitt appeals from his conviction and sentence for operating while intoxicated, first offense. AFFIRMED.
Jeffrey R. Minnich of Neu, Minnich, Comito Neu, P.C., Carroll, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and John Werden, Jr., County Attorney, for the State.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Bruce Pettitt appeals from his conviction and sentence for operating while intoxicated, first offense. We affirm.
I. Background Facts and Proceedings.
On August 2, 2004, the Carroll Police Department received a phone call from a local resident about a suspected drunk driver. The witness stated she had observed a man urinating between two U-haul trucks parked at a car wash, and that the same man had then driven his vehicle to a nearby convenience store. The same witness reported that the man had exited the vehicle and stumbled on his way into the store. Two police officers who were near the store responded to the report. They parked their vehicle across the street from the convenience store and adjusted their patrol car's video recorder to record the man's departure from the store. After surveilling the store for approximately two minutes, the officers observed Pettitt, the owner of the nearby car wash, as he exited the store and entered the vehicle described by the witness in the earlier phone call. The video recording shows Pettitt's foot momentarily "caught" on the door frame as he entered the vehicle. Pettitt closed the car door and drove away.
The record does not contain an audio recording of the phone call because at the time the phone call was placed, the department's recording system was not functioning. However, the video recording made by the officers clearly references the phone call, and the particulars of the reporting party's conversation with the police dispatcher are described in the detaining officer's testimony at trial.
It should be noted that prior to Pettitt's exit from the convenience store, the audio recorded in the patrol car reveals that both officers had decided to detain the vehicle on the basis of the phone call received from the reporting party. This recorded statement contradicts the detaining officer's testimony at trial that he did not believe that he had reasonable suspicion to detain Pettitt's vehicle based solely on the observations made by the reporting party. The officer testified instead that the only reason he decided to stop the vehicle was his own observation that Pettitt appeared "very unsteady when he tried to get into his vehicle."
The officers proceeded to (1) stop Pettitt's vehicle, (2) conduct field sobriety tests — all of which Pettitt failed, and (3) administer a preliminary breath test — which registered a blood alcohol concentration (BAC) well above the legal limit. On the basis of these tests, the officers invoked implied consent, and Pettitt's chemical test registered a BAC of .193.
A trial information charging Pettitt with operating while intoxicated, first offense, was filed by the State on August 27, 2004. In advance of trial, Pettitt filed a motion to suppress the evidence of his breath test, alleging the officers lacked reasonable suspicion to stop his vehicle. Following oral argument on the motion, the district court concluded the State had shown by a preponderance of the evidence that the officers possessed the "necessary reasonable suspicion of intoxication justifying the investigatory stop," based both on the officers' own observations of Pettitt's exit from the convenience store and the information conveyed by the witness. Following the denial of the motion to suppress, a bench trial was held on December 21, 2004, resulting in a verdict of guilty.
Pettitt appeals from his conviction and sentence, alleging the district court erred in denying his motion to suppress the evidence seized as a result of the investigatory stop. Pettitt contends the officers did not possess reasonable suspicion at the time they decided to stop Pettitt, and thus all evidence flowing from the detention should have been excluded.
II. Scope and Standard of Review.
We review challenges to the district court's denial of a motion to suppress de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000). "In doing so, we independently evaluate the totality of the circumstances shown in the record." State v. Seager, 571 N.W.2d 204, 207 (Iowa 1997). We give deference to the district court's findings of fact and assessments of credibility, but we are not bound by those findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). Any evidence obtained in violation of a defendant's Fourth Amendment rights is inadmissible and should be suppressed regardless of its relevance and probative value. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961); State v. Schrier, 283 N.W.2d 338, 342 (Iowa 1979).
III. Discussion.
We begin by noting that the reasonable suspicion of wrongdoing requisite to justify the detention of Pettitt's vehicle may not be inchoate or unparticularized; rather the circumstances must provide an objective basis for the officer's suspicion of wrongdoing. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 308 (1990). Moreover, the suspicion of wrongdoing must be derived from conduct and observations made prior to the decision to detain. United States v. Yang, 345 F.3d 650, 655 (8th Cir. 2003).
The detaining officer testified at trial that (1) he decided to stop Pettitt's vehicle based solely on his observation of Pettitt's unsteady entrance to his vehicle, and (2) he did not find the witness to be reliable. Pettitt argues the video recording made of the officers' observations of Pettitt's movement between the convenience store and his vehicle provides no evidence that Pettitt was intoxicated. Because the detaining officer testified he relied only on his own observations in deciding to detain the vehicle, Pettitt contends reasonable suspicion was lacking. We disagree.
We do agree with Pettitt's assessment that the video recording, when viewed in isolation, does not depict conduct that would indicate the man observed was intoxicated, even to a trained officer. However, our review for reasonable suspicion justifying an investigatory stop is not limited to those subjective factors relied upon by the detaining officer. See State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (stating that the existence of reasonable suspicion is judged by an objective standard, incorporating all facts available to the officer at the time of the decision). We may also consider the information conveyed to the officer by the witness.
See State v. Walshire, 634 N.W.2d 625, 630 (Iowa 2001) (holding that, at least with regard to drunk driving investigatory detentions, reliable reports from citizens witnessing the suspicious circumstances may suffice for reasonable suspicion, even where the detaining officer does not independently observe any suspicious behavior). This is true despite the fact the officer subjectively believed the witness was not particularly reliable. State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996). We believe the witness's phone call alone was sufficiently reliable to justify the investigatory stop in this case. The witness accurately identified Pettitt's vehicle and license plate number, and accurately placed the vehicle at the convenience store where it and Pettitt were observed by the officers. The behavior described in the phone call is objectively consistent with intoxication, and when the vehicle was operated, reasonable suspicion transferred to the vehicle's driver.
Despite our conclusion that reasonable suspicion justifying the detention of Pettitt's vehicle existed, this opinion in no way should be construed as an endorsement of the police practices employed to achieve the OWI conviction at issue. Here, the officers responded to a phone call that described behavior consistent with intoxication. The officers clearly indicate in their video recording that they believe the phone call alone gives them grounds to detain the vehicle. Thus we must conclude the officers believed the man described in the phone call was intoxicated. Yet, the officers sat in their patrol car across the street and spent nearly two minutes adjusting their video recorder while waiting for a man they believed to be intoxicated to leave the store and begin operating a vehicle on a public highway. In our view, the officers had sufficient time to allay their suspicions concerning Pettitt's inebriation before he entered his vehicle and drove away. Police, in this area of the law especially, are first and foremost charged to safeguard public safety. Drunk driving is a serious public hazard, and we therefore view with unease the seeming abdication of the detaining officers' public safety role apparently in furtherance of a conviction for OWI.
Because the information conveyed by the phone call alone was sufficient to justify the investigatory stop of Pettitt's vehicle, we conclude Pettitt's constitutional rights were not violated thereby. The district court properly denied Pettitt's motion to suppress, and consequently we affirm Pettitt's conviction for operating while intoxicated, first offense.