                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1074
                               Filed June 10, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES CURTIS CRAIG III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Calhoun County, Kurt J. Stoebe,

Judge.



      A defendant appeals from his conviction of operating while intoxicated,

first offense. AFFIRMED.



      Jennifer Bonzer of Johnson & Bonzer, Fort Dodge, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Cynthia Voorde, County Attorney, and Tina Meth Farrington,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., Vaitheswaran, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

       James Curtis Craig III was convicted of operating while intoxicated, first

offense. He has appealed. We affirm.

   I. Factual Background and Course of Proceedings

       On December 22, 2013, Officer Israel Swanson of the Manson Police

Department was performing routine parole duties when he observed an individual

exit a local bar and grill, get into a parked car, and head down Main Street. The

vehicle suddenly stopped and began reversing, causing the driver of the

following vehicle to take evasive actions by slamming on the brakes and

reversing the vehicle in order to avoid being struck. Officer Swanson activated

his lights, pulled between the two vehicles, and stopped the reversing vehicle.

Officer Swanson determined that Craig was driving and charged him with

careless driving and operating while intoxicated.

       Craig filed a motion to suppress, claiming that the stop of his vehicle was

an illegal seizure. The trial court concluded that Craig’s operation of his vehicle

was neither reckless driving nor careless driving but Officer Swanson had

probable cause to stop Craig’s vehicle and overruled Craig’s motion to suppress

as to the stop issue. Craig waived his right to a jury trial and consented to a trial

on the minutes. Craig was convicted of operating while intoxicated and has been

sentenced accordingly.

   II. Preservation of Error

       When a pretrial motion to suppress is overruled by the trial court no further

objection to the evidence’s submission at trial is necessary to preserve error.
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State v. Richards, 229 N.W.2d 229, 232-33 (Iowa 1975).           Error has been

preserved.

   III. Scope of Review

       Constitutional issues have been raised; therefore, review is de novo and

requires an evaluation of the totality of the circumstances. State v. Pals, 805

N.W.2d 767, 771 (Iowa 2011).

   IV. Discussion

       Craig contends that since Officer Swanson thought he was guilty of

violating the reckless driving or careless driving prohibition and it was later

determined that neither violation had occurred, there was therefore no right to

stop his vehicle. The stop of a motor vehicle by law enforcement is a seizure.

Whren v. United States, 517 U.S. 806, 809-10 (1996). Stopping a vehicle based

on an officer’s mistaken belief that a law has been broken, when in fact no law

exists that prohibits the observed act, does not constitute reasonable cause to

justify a traffic stop.   State v. Louwrens, 792 N.W.2d 649, 654 (Iowa 2010).

However, if a law enforcement officer has a reasonable and articulable belief that

criminal activity is afoot he can make a stop consistent with the Fourth

Amendment. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). The purpose of

such an investigatory stop is to resolve any ambiguity as to whether criminal

activity is afoot. State v. Kinkead, 570 N.W.2d 97, 101 (Iowa 1997). A mistaken

factual basis for a stop does not necessarily make the stop invalid. Id. Whether

Officer Swanson’s mistake is a mistake of law or fact is not critical as to the

legality of the stop in this instance. The State is not limited to the reason the
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officer gave for justifying the stop. State v. Tyler, 830 N.W.2d 288, 295 (Iowa

2013).

         As opposed to Tyler, other reasons in the record justify for the stop. The

underlying issue in this case is not whether a traffic violation occurred justifying

the stop, but instead whether other factors support a clear and articulable reason

to believe criminal activity was afoot. We agree with the trial court when it stated

in its ruling on the motion to suppress,

                 There is no factual dispute that the defendant was operating
         his car in reverse on a winter night on a commercial street [on] a
         collision course with another vehicle. The other vehicle took an
         evasive maneuver to avoid the collision. The defendant did not
         stop until the officer intervened with his red lights and patrol car.
         The officer could reasonably conclude that the defendant did not
         see the minivan, wanted to hit it, wanted to intimidate the driver,
         and/or simply disregarded the safety of the minivan and its
         occupants.
                 The Court therefore concludes that there was probable
         cause to stop the defendant’s vehicle.

         Even though Officer Swanson believed the actions he observed

constituted careless or reckless driving but the court later disagreed, it is

reasonably clear that “the ambiguity” of Craig’s action warranted an “investigatory

stop” to determine what was precipitating the erratic driving.

         AFFIRMED.
