                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0440
                              Filed January 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MONTE ALLEN APFEL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar (suppression) and Bradley J. Harris (trial), Judges.



      Monte Apfel challenges his convictions of possession of methamphetamine

with intent to deliver, possession of marijuana, possession of diazepam, unlawful

possession of prescription drugs, and drug tax stamp violation. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

        Monte Apfel appeals his convictions for five drug charges. On appeal, Apfel

claims the district court erred in denying his motion to suppress. We find the traffic

stop and subsequent investigation, dog sniff, and search did not violate Apfel’s

constitutional rights. We affirm the district court.

        I.      Background Facts & Proceedings

        At 12:58 a.m. on July 29, 2016, law enforcement initiated a traffic stop of a

vehicle after observing it cross the center line. When the officer informed the

driver, Apfel, why the traffic stop was initiated, Apfel did not dispute the vehicle

crossed the center line. His first reaction was “[W]ell, my car kinda pulls that way

a little bit” and soon said he should have gotten the problem fixed, reiterating, “I

know it pulls pretty hard that way.”

        Apfel told the officer he had purchased the vehicle the day before. Apfel

had the vehicle title with him but no registration, proof of insurance, or current

license plates. On the title, the seller information was filled out and dated July 27,

but no information indicating the buyer, the vehicle’s mileage, or a bill of sale was

included.1 Apfel was unable to identify or provide the contact information of the

seller of the vehicle. The license plates on the vehicle were registered to a different

vehicle owned by Apfel’s wife. The officer began an investigation of the ownership

status of the vehicle to determine if Apfel had a right to drive it.

        A duffle bag was observed in the back seat, and Apfel provided a vague

description of its contents. The officer requested consent to search the vehicle,



1
    On July 31, the officer confirmed with the seller the vehicle had been sold to Apfel.
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and Apfel refused.     A search on Apfel’s driver’s license revealed prior drug

offenses. The officer called for a canine unit. The unit arrived while the officer

continued to investigate the ownership of the vehicle. The officer talked on Apfel’s

cell phone with an acquaintance of Apfel who helped with the vehicle purchase.

The officer requested dispatch make subsequent additional calls on the ownership

while the officer checked if the car could stay in the driveway overnight after the

invalid license plates were removed. At the same time the canine unit performed

a dog sniff outside the vehicle.

       The dog indicated at the open driver side window by trying to jump in the

window and, when the officer let him in the vehicle, indicated at the dash. In the

dash, officers found bottles of pills and a small zippered case containing

methamphetamine, marijuana, a pipe, a scale, and a social security card for Apfel’s

ex-wife. The officer located notebooks in the glove compartment, one of which

appeared to be a drug ledger.        The duffle bag contained more drugs and

paraphernalia. Apfel was arrested. The officers recovered two hundred diazepam

tablets, ten tablets of alprazolam, eight bags of methamphetamine, and marijuana

from the vehicle. The officers also removed over $1100 dollars in cash and jewelry

from Apfel’s person.

       The State charged Apfel with five offenses: (1) possession of more than five

grams of methamphetamine with intent to deliver (second offense), in violation of

Iowa Code sections 124.401(1)(b)(7) and 124.411 (2016); (2) drug tax stamp

violation (habitual offender), in violation of sections 453B.3 and .12; (3) possession

of marijuana (third offense), in violation of section 124.401(5); (4) possession of
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diazepam with intent to deliver, in violation of section 124.401(1)(d); and

(5) unlawful possession of a prescription drug, in violation of section 155A.21.

       Apfel filed a motion to suppress evidence obtained during the traffic stop.

He made three claims: the officer’s observation of his vehicle crossing the center

line was not a sufficient basis for initiating a traffic stop; the extension of the traffic

stop to wait for the canine officer was unconstitutional; and there was no probable

cause for the canine search of the vehicle. After a hearing, the court denied his

motion.

       A jury trial was held in January 2018. The jury convicted Apfel on all five

counts. Apfel appeals.

       II.     Standard of Review

       “When a defendant challenges a district court’s denial of a motion to

suppress based upon the deprivation of a state or federal constitutional right, our

standard of review is de novo.” State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017).

We independently evaluate the totality of the circumstances on our review

including evidence presented at the suppression hearing and evidence presented

at trial. State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015). Because the district

court has an opportunity to assess the credibility of witnesses, we give deference

to but are not bound by the district court’s factual findings. In re Pardee, 872

N.W.2d 384, 390 (Iowa 2015).

       III.    Motion to Suppress

       A.      Stop of the vehicle. Apfel claims the district court erred in finding

the dash-cam video from the officer’s patrol car shows his vehicle crossing the

center line. On this question, the district court found, “State’s Exhibit A shows the
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Defendant’s vehicle, prior to turning left, crossing the center line at least once, not

merely touching the line.     This establishes probable cause as the Defendant

violated Iowa Code section 321.297(1), which requires that vehicles be driven on

the right half of the roadway.” The court noted without the crossing of the center

line “reasonable suspicion would not have existed as Defendant Apfel did not

weave, veer, or display erratic speed changes.”

       After reviewing the dash-cam video, we agree with the district court

probable cause was established. The video shows Apfel crossing the center line

at the same time he turns on his left turn signal, approximately one block before

he turns left. He was not passing parked cars or any other obstruction making it

necessary to drive left of the center line. See Iowa Code § 321.297. None of the

other exceptions under section 321.297 apply.         The traffic stop was justified

because probable cause existed to believe a traffic violation had occurred.

       B.     Extension of stop. Apfel claims the traffic stop should have ended

once the original purpose of the stop was completed and the officer did not have

reasonable suspicion to extend the traffic stop. Apfel contends the officer should

have let him leave without the vehicle once the officer determined the license

plates did not match the vehicle and realized the ownership question would not be

resolved that night.

       A law enforcement officer making a valid traffic stop must terminate the stop

when reasonable suspicion is no longer present. State v. Coleman, 890 N.W.2d

284, 285 (Iowa 2017). A traffic stop may not be extended when the underlying

problem has been resolved. Id. at 301. If an additional violation is discovered

during the valid traffic stop, an extension of the stop is justified. See State v.
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Coffman, 914 N.W.2d 240, 252 (Iowa 2018) (finding the discovery of a violation

relating to the vehicle registration provided further justification for the stop).

       “[A]n officer ‘may conduct certain unrelated checks during an otherwise

lawful traffic stop’ but ‘may not do so in a way that prolongs the stop, absent the

reasonable suspicion ordinarily demanded to justify detaining an individual.’”

Pardee, 872 N.W.2d at 393 (quoting Rodriguez v. United States, 575 U.S. ___,

___, (2015)). The critical question is whether the checks prolong the stop without

reasonable suspicion. See id.

       In this case, during the valid traffic stop, the officer requested the

registration and insurance for the vehicle. This standard request gave rise to a

question of the ownership of the vehicle. The officer also called dispatch to check

Apfel’s license, then requested a canine unit after discovering a history of drug

offenses. The officer was still actively investigating an ongoing violation—the

ownership of the vehicle and the wrong license plates on the vehicle—past the

arrival of the canine unit. The period between the officer calling for the unit and

the unit’s arrival included a call initiated by Apfel to a person who facilitated the

vehicle purchase. The officer and Apfel discussed why the officer needed proof

Apfel had the right to drive the car, including Apfel’s inability to provide any

information about the seller. During the dog sniff search, the officer continued to

investigate who owned the vehicle and determined whether the vehicle would need

to be towed or if it could stay where it was parked. The length of the stop was a

reflection of the investigation into the ownership of the vehicle and whether Apfel

should be driving it; the stop was not prolonged to wait for the canine unit and

conduct the dog sniff.
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       We find the ownership investigation was ongoing up until and beyond the

time of the canine unit’s response and dog sniff. The officer did not act in an

unconstitutional manner in not allowing Apfel to leave the scene after discovering

Apfel was driving a vehicle using another vehicle’s license plates, having no proof

of ownership besides a title he had not signed, and an inability to provide any

information about the buyer or how Apfel obtained the vehicle. The officer did not

unlawfully prolong the traffic stop to wait for the canine unit.

       C.     Search of the vehicle. Apfel claims the dog sniff of his vehicle was

unconstitutional, stating it did not fall within any exception to the warrant

requirement and the officer did not have a reasonable, articulable suspicion

justifying a drug dog sniff of the vehicle.

       Apfel identifies no legal support for his theory an open air dog sniff requires

probable cause or a search warrant. To the contrary, “a dog sniff that occurs

outside a vehicle is not a search under the meaning of the Fourth Amendment.”

State v. Bergmann, 633 N.W.2d 328, 334 (Iowa 2001). “Because it is not a search,

neither probable cause nor reasonable suspicion must be present to justify it.” Id.

A trained dog’s alert to the presence of illegal substances establishes probable

cause to search the vehicle. Id. at 338. Here, the dog sniff outside the car was

not a search, and the outside alert provided probable cause for the subsequent

entry into and search of the vehicle.

       In short, the initial stop arose out of a traffic violation. The initial traffic stop

revealed valid questions regarding the ownership of the vehicle and Apfel’s right

to drive the vehicle which required immediate investigation. The investigation of

the ownership and Apfel’s rights relating to the vehicle and related questions about
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whether to tow the vehicle were ongoing through the time the canine unit arrived

and the dog sniff occurred. A dog sniff outside the vehicle is not a search within

the meaning of the Iowa or federal constitutions. The dog’s detection of controlled

substances within the vehicle provided probable cause for the officers’ search of

the vehicle.

       We affirm the district court’s denial of Apfel’s motion to suppress.

       AFFIRMED.
