                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0656
                              Filed March 11, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEPHEN SCOTT PRUSHA,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.



      Stephen Prusha appeals his conviction for possession of a controlled

substance. AFFIRMED.




      Darrell G. Meyer, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, Kelli A. Huser, Assistant Attorney

General, Jennifer A. Miller, Marshall County Attorney, and Ben Stansberry,

Assistant Marshall County Attorney, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, J.

       Stephen Prusha appeals his conviction for possession of a controlled

substance, claiming the court erred in denying his motion to suppress under the

United States and Iowa Constitutions. Specifically, Prusha claims the district

court erred in finding the search of Prusha’s person was voluntary, and Iowa

should adopt a “per se” rule requiring police officers to advise individuals of their

right to decline to consent to a search. We affirm the ruling of the district court by

memorandum opinion pursuant to Iowa Court Rules 21.26(1) (a) and (d).

       We incorporate the district court’s summation of the facts from its ruling on

Prusha’s motion to suppress:

               At approximately 1:20 a.m. on April 5, 2013, Deputy John
       Shaver was on patrol with the Marshall County Sheriff’s
       Department when he observed Defendant walking along a rural
       road dressed in black. The clothing and darkness made it difficult
       to see the Defendant. Shaver stopped to determine whether
       Defendant needed assistance. He pulled his patrol vehicle as far
       onto the shoulder as possible, but was still on the traveled portion
       of the roadway. As a precaution, he turned on his emergency lights
       so his vehicle could be seen by oncoming traffic. Defendant was in
       the process of retrieving his identification from a wallet as Shaver
       approached him. Shaver asked if he was okay, and Defendant said
       he was walking to Marshalltown from LeGrand after an argument
       with his girlfriend. Shaver then ran Defendant’s driver’s license
       information to check for warrants. He was informed there were no
       warrants, but that Defendant was known to interfere with law
       enforcement and that he was “flagged” as being associated with
       illegal drug use. Shaver asked Defendant if he would consent to a
       search of his person. Defendant consented. Defendant then
       quickly put his hand in his pants pocket, and Shaver grabbed his
       hand, pulling it out of the pocket, as he was unaware what
       Defendant had inside the pocket. Shaver asked Defendant what
       was in the pocket, and Defendant said, “I will show you.” At that
       point Defendant pulled a glass pipe out of his pocket. It had what
       appeared to be methamphetamine residue inside it. At no time
       prior to that point was Defendant handcuffed, and Shaver did not
       draw his weapon. Shaver placed Defendant under arrest for
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         possession of the pipe and then asked where the
         methamphetamine was. He finished a search of Defendant's
         person and found approximately one half a gram of
         methamphetamine in a pants pocket. Defendant was formally
         charged with possession of a schedule II controlled substance,
         methamphetamine, in violation of Iowa Code section 124.401(5) in
         a Trial Information filed May 18, 2013 and possession of drug
         paraphernalia in violation of Iowa Code section 124.414.
         Defendant filed his motion to suppress evidence on June 4, 2013.

         Prusha claims the district court should have granted his motion to

suppress under both the Fourth Amendment to the United States Constitution

and article I, section 8 of the Iowa Constitution. Therefore, our review is de novo.

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).              This review requires “an

independent evaluation of the totality of the circumstances as shown by the

entire record.”     State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001) (internal

quotation marks omitted). The court gives “deference to the factual findings of

the district court due to its opportunity to evaluate the credibility of the witnesses,

but [is] not bound by such findings.” State v. Lane, 726 N.W.2d 371, 377 (Iowa

2007).

         “The State has the burden to prove the consent was voluntary, . . . and

voluntariness is a ‘question of fact to be determined from the totality of all the

circumstances.’”      State v. Lane, 726 N.W.2d 371, 378 (Iowa 2007) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Whether the consent

was voluntary requires the consideration of many factors,1 though no one factor

is determinative. Lane, 726 N.W.2d at 378.



1
    These factors include:
         personal characteristics of the [consenter], such as age, education,
         intelligence, sobriety, and experience with the law; and features of the
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       The district court referenced these factors in its well-reasoned decision

and found Prusha’s consent was voluntary and not revoked, or limited by his

words or actions. We agree and affirm the district court’s denial of Prusha’s

motion to suppress. Additionally, we decline Prusha’s invitation to craft a “per se”

requirement for police to inform an individual of their right to decline to consent to

a search in the context of a community caretaking stop.

       AFFIRMED.




       context in which the consent was given, such as the length of detention or
       questioning, the substance of any discussion between the [consenter]
       and police preceding the consent, whether the [consenter] was free to
       leave or was subject to restraint, and whether the [consenter’s]
       contemporaneous reaction to the search was consistent with consent.
Lane, 726 N.W.2d at 378 (citing United States v. Va Lerie, 424 F.3d 694, 709 (8th Cir.
2005).
