Opinion
No. 4-123 / 03-1279
April 14, 2004.
Appeal from the Iowa District Court for Kossuth County, Donald J. Bormann, District Associate Judge.
The State appeals the decision of the trial court granting defendant's motion to suppress. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Mary Tabor and Karen Doland, Assistant Attorney General, and Todd Holmes, County Attorney, for appellant.
Joseph Straub of Winkel Straub, Algona, for appellee.
Considered by Zimmer, P.J., and Hecht, J., and Hendrickson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
The State of Iowa, pursuant to a grant of discretionary review, challenges the ruling of the trial court sustaining defendant's motion to suppress. The trial court held the police officer did not have justification to stop the defendant's vehicle and therefore evidence concerning the charge of operating while intoxicated, in violation of Iowa Code sections 321J.1 and 321J.2 (2003), was suppressed. We reverse and remand
Since a challenge to the trial court's ruling on a motion to suppress implicates the Fourth and Fourteenth Amendments of the United States Constitution, we review the issues de novo. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997). Our objective review of the facts is to determine if the State has shown by a preponderance of the evidence that the officer's observations and experience give rise to a specific and articulable fact to believe criminal activity is afoot. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Circumstances raising mere suspicion or curiosity are not enough. Id.
In State v. Tague, ___ N.W.2d ___, ___ (Iowa 2004), the Iowa Supreme Court said to justify a stop on the basis Tague (the defendant) was intoxicated and briefly detain him for investigatory purposes, the police need only to have reasonable suspicion, not probable cause, to believe criminal activity has occurred or is occurring.
Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting the officer, including all information available to the officer at the time the officer makes the decision to stop the vehicle. United States v. Arizu, 534 J.S. 266, 273, 122 So. Ct. 744, 750, 151 L.Ed. 740, 749 (2002).
I. BACKGROUND FACTS
On January 19, 2003 at approximately 2:00 a.m. Officer Dale Briggs, an eighteen-year-veteran of the Algona Police Department, observed a red Ford pickup being driven by the defendant, David Wayne Scheller. Officer Briggs followed the vehicle for several blocks. On two occasions he observed the pickup drift over to the right side of the street near the curb and then back into his own lane. On the second occasion the officer thought the vehicle would go upon the curb but it did not.
Scheller's vehicle stopped for a red light and Officer Briggs observed that it "quickly" took off when the light changed to green and sped up to thirty miles per hour in a twenty-five-mile-per-hour zone. Officer Briggs observed Scheller's vehicle swerve to avoid a parked vehicle, but the officer testified the swerve was not smooth nor normal because the vehicle went completely in the opposite lane rather than just a mild swing around the parked vehicle.
Officer Briggs observed Scheller's vehicle crossing railroad tracks and then drift over the center of the street. Although the street was not actually marked with a center lane the officer testified it appeared as though half of the vehicle was in the other lane of traffic.
When Officer Briggs activated his red lights Scheller continued to drive one block, make a left turn onto North Durant Street, continue on North Durant Street to Commercial Street where he made a right turn onto Commercial Street and then pulled into his driveway. Officer Briggs, based on his eighteen years of experience and his training in detecting drivers under the influence of intoxicants, suspected from his observations of "erratic" driving that Scheller was possibly intoxicated.
Our objective review of the evidence leads us to conclude that the conduct of Scheller as set forth provided the officer with reasonable suspicion that Scheller was driving while intoxicated. See State v. Otto, 566 N.W.2d at 509 (concluding the stop of a car which was weaving at sharp angles was justified); State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct.App. 1993) (holding that weaving within own lane of traffic is sufficient to give rise to reasonable suspicion of operating while intoxicated); State v. Dorendorf, 359 N.W.2d 115, 117 (N.D. 1984) (concluding officers were justified in stopping a vehicle that exhibited a "smooth, continuous weave").
We believe the evidence in this case of specific and articulable facts giving the officer reasonable suspicion to believe criminal activity is occurring are as follows: (1) the officer's experience and training; (2) the officer's observation of the defendant's pickup drifting toward the right-hand curb on at least two occasions — once it appeared to the officer the defendant would go upon the curb; (3) the defendant leaving a stop light quickly after it turned green and driving thirty miles per hour in a twenty-five-mile-per-hour zone; (4) the defendant making a wide swerve to avoid a parked car, which in the officer's opinion the swerve was not smooth or normal because the defendant's vehicle went completely in the opposite lane; (5) the defendant's vehicle drifting into the left-hand side of the road after it crossed railroad tracks; and (6) the failure of the defendant to stop when the officer turned on his red lights. Instead, the defendant chose to continue driving until he reached his driveway.
We therefore conclude the officer had reasonable suspicion to stop Scheller's vehicle and the motion to suppress should have been denied.