                       IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1183
                            Filed September 10, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CORDERO ROBERT SEALS,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, District Associate Judge.



       A criminal defendant contends his tampering-with-records charge should

have been dismissed because of a speedy-indictment violation. AFFIRMED.



       Alison Werner Smith of Hayek, Brown, Moreland & Smith, L.L.P., Iowa

City, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller and Jean C. Pettinger,

Assistant Attorneys General, Louis S. Sloven, Student Legal Intern, Janet M.

Lyness, County Attorney, and Elizabeth Beglin, Assistant County Attorney, for

appellee.



       Considered by Tabor, P.J., Bower, J., and Miller, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                         2



TABOR, P.J.

       To avoid facing an outstanding warrant for his arrest in Linn County,

Cordero Robert Seals misidentified himself to law enforcement as his brother.

Unfortunately for Seals, his brother had pending arrest warrants in Johnson

County. Booked on his brother’s warrants, Seals spent the night in the Johnson

County jail.   After Seals admitted the deception, the Johnson County Sheriff

transferred him back to Linn County custody, and then filed a complaint charging

Seals with tampering with public records, in violation of Iowa Code section

715A.5 (2013).

       Seals contends the district court should have dismissed the tampering

charge based on a speedy indictment violation because the State filed its trial

information more than forty-five days after his arrest. See Iowa Rule Crim. P.

2.33(2)(a). Because neither holding Seals on his Linn County warrant nor filing

the new complaint constituted an arrest, we affirm the district court’s denial of his

motion to dismiss.

I.     Background Facts and Proceedings

       On September 10, 2013, Cordero Robert Seals identified himself to Cedar

Rapids police as Cortez Andrew Seals—the name of his brother. The police

arrested Seals for two outstanding warrants in Johnson County under that name

and transferred him to the custody of the Johnson County Sheriff. In Johnson

County, Seals completed all the booking paperwork, including signing his name

as Cortez Andrew Seals.
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       The next morning, Deputies Tyler Schneider, Jeff Gingerich, and John

Good were on duty at the Johnson County jail. At around 9:00 a.m. Deputy

Schneider noticed the inmate did not look like Cortez Seals, with whom the

deputy had prior dealings. The inmate did not have tattoos or other features

matching the photographs of Cortez in the law enforcement database.           The

deputies confronted Seals with this information, and he admitted using his

brother’s name to avoid serving his own jail sentence in Linn County for a driving

offense.

       At 9:32 a.m. the deputies contacted Linn County to verify the warrant

information. Linn County authorities responded five minutes later confirming they

had an outstanding arrest warrant for Seals on a driving while barred offense.

They requested Johnson County hold Seals until they could pick him up. The

Johnson County deputies transferred Seals to Linn County custody at 10:50 a.m.

       At 1:41 p.m. Deputy Schneider filed a complaint against Seals, alleging he

tampered with public records by providing his brother’s biographical information

during the booking process, as well as signing the paperwork under his brother’s

name. Also on September 11, 2013, a district associate judge signed an arrest

warrant based on the complaint. Johnson County deputies arrested Seals on

September 26. Seals entered an initial appearance on September 27. The State

filed its trial information on November 8, 2013.

       On November 20, Seals filed a motion to dismiss claiming he was arrested

on September 11 and the trial information was not filed until fifty-eight days

later—thirteen days beyond the deadline set in rule 2.33(2)(a). The State argued
                                          4



no speedy indictment violation occurred because Seals was not arrested until

September 26, forty-three days before the filing of the trial information.       The

district court denied Seals’s motion to dismiss.

       Seals waived his right to a jury trial and the court found him guilty on a

stipulated record. Seals now appeals.

II.    Standard of Review

       We review the district court’s interpretation of the speedy indictment rule

to correct legal error. State v. Penn-Kennedy, 862 N.W.2d 384, 386 (Iowa 2015).

If the district court’s findings of fact are supported by substantial evidence, we

are bound by them. State v. Wing, 791 N.W.2d 243, 246 (Iowa 2010).

III.   Speedy Indictment Analysis

       Both the federal and state constitutions guarantee the right to a speedy

trial. See U.S. Const. amend. XI; Iowa Const art. I, § 10. Our rules of criminal

procedure embody this right, providing specific deadlines to protect citizens from

undue delays in being charged and tried for public offenses. State v. Miller, 818

N.W.2d 267, 271 (Iowa Ct. App. 2012).

       Rule 2.33 dictates the time frame within which the State must bring an

indictment or file its trial information against an individual arrested for committing

a public offense:

       When an adult is arrested for the commission of a public
       offense . . . and an indictment is not found against the defendant
       within 45 days, the court must order the prosecution to be
       dismissed, unless good cause to the contrary is shown or the
       defendant waives the defendant's right thereto.
                                        5



Iowa R. Crim. P. 2.33(2)(a); see also Iowa R. Crim. P. 2.5(5) (“The term

‘indictment’ embraces the trial information, and all provisions of law applying to

prosecutions on indictments apply also to informations . . . .”). For purposes of

speedy indictment under rule 2.33(2)(a), a citation issued in lieu of arrest is

deemed an arrest. Iowa Code § 805.1(4).

      The rule mandating a speedy indictment aims to relieve an accused of the

anxiety associated with the suspension of a prosecution, to provide for the

reasonably prompt administration of justice, to prevent the loss of evidence, and

to maintain a fair process. Penn-Kennedy, 862 N.W.2d at 387. The speedy

indictment clock starts not with the commencement of the prosecution, but with

the arrest. Id. (“An arrest is the triggering event to commence the forty-five-day

time period to file an indictment under the rule, supplanting the previous version

of the rule’s use of the date of prosecution as the trigger.”); see also Wing, 791

N.W.2d at 255 (Cady, J. dissenting).

      On appeal, Seals advances two arguments in support of his speedy

indictment claim. First, relying on Wing, 791 N.W.2d at 247, Seals argues he

was arrested for the purposes of rule 2.33 on the morning of September 11 when

“he was kept in custody after deputies learned he was not Cortez Seals . . .

before the deputies learned there was a warrant out for [his] arrest in Linn

County.” Second, he claims he was constructively arrested on September 11
                                          6



when the Johnson County deputy filed a written complaint alleging the

tampering-with-records violation. We will address each claim in turn.1

       A.     Wing’s Reasonable Person Standard

       Arrests are governed by Iowa Code chapter 804. The manner of arrest is

outlined in section 804.14. But our supreme court has held a seizure by a peace

officer may constitute an arrest for speedy indictment purposes even if the officer

does not take the formal steps outlined in section 804.14 “as long as the person

making the arrest sufficiently conveys, either through words or conduct, the intent

to perform an arrest.” See Wing, 791 N.W.2d at 247–48. Courts must determine

on a case-by-case basis whether a seizure constitutes an arrest, considering

whether the suspect is informed of his arrest, is handcuffed or booked, submits to

authority, or believes he is free to leave. See id. at 248. Wing eschewed a

bright-line test, stating no one factor was determinative. Id. The majority in Wing

concluded:

              When an arresting officer does not follow the protocol for
       arrest outlined in section 804.14 and does not provide any explicit
       statements indicating that he or she is or is not attempting to effect
       an arrest, we think the soundest approach is to determine whether
       a reasonable person in the defendant’s position would have
       believed an arrest occurred, including whether the arresting officer
       manifested a purpose to arrest.

Id. at 249.

       Seals contends he was arrested on the tampering-with-records offense

when Johnson County deputies kept him in custody on the morning of


1
  Our analysis relies on the Iowa Supreme Court’s recent revisit to the scope and
application of the speedy indictment rule in State v. Penn-Kennedy, 862 N.W.2d 384,
387-90 (Iowa 2015). Neither the district court nor the parties had the benefit of that
opinion when considering the facts here.
                                        7



September 11, even after learning he was not his brother Cortez, whose

warrants had prompted the original booking into jail. Seals argues a reasonable

person in his position “would have believed that the continued police restraint on

his freedom amounted to an arrest for the crime for which he was questioned by

deputies Schneider and Good: tampering with records.” See Wing, 791 N.W.2d

at 252–53.

      To assess that argument, we look to the content of the deputies’

questioning. When Deputies Gingerich and Schneider confronted Seals about

his true identity on the morning of September 11, Seals admitted using his

brother’s name to avoid serving his own jail sentence in Linn County.        That

admission prompted the Johnson County deputies to contact Linn County

authorities concerning the outstanding arrest warrant; Linn County authorities

confirmed having a mittimus for Seals and asked Johnson County to hold him.

Seals was back in Linn County custody before 11:00 a.m.

      After admitting he had a pending jail sentence in Linn County, and seeing

the quick efforts by the Johnson County deputies to transfer him back to Linn

County custody, a reasonable person in Seals position would have believed his

continued detention in Johnson County was on that pending Linn County

warrant. See Wing, 791 N.W.2d at 252 (finding reasonable person in Wing’s

position would have believed an arrest occurred when they admitted possession

of contraband). The record does not reveal that the Johnson County deputies

told Seals they anticipated filing the tampering charge, and they did not file a

complaint on that offense until the afternoon of September 11.
                                             8



       When we consider the totality of Seals’s interactions with the Johnson

County deputies, we conclude his detention after they learned his true identity

was based on his admission to having a Linn County warrant and did not

constitute a new arrest triggering the speedy indictment clock.             See State v.

Miller, 818 N.W.2d 267, 277 (Iowa Ct. App. 2012) (noting “our existing speedy-

indictment precedents do not require law enforcement to make an arrest based

on every crime for which they possess probable cause”). Any anxiety Seals may

have experienced waiting to be indicted on the tampering charge in Johnson

County was implicated by the power of the prosecution to bring a separate

indictment on a different criminal offense any time within the statute-of-limitations

period. See Penn-Kennedy, 862 N.W.2d at 389–90 (limiting reasonable-person

rule in Wing to cases where arrest is not promptly followed by any prosecution).

       B.      Constructive Arrest

       In the alternative, Seals argues he was constructively arrested when

Deputy Schneider filed a sworn complaint at 1:41 p.m. on September 11. Seals

argues the complaint was the equivalent of a citation in lieu of arrest.2 “The

issuance of a citation in lieu of arrest shall be deemed an arrest for the purpose




2
    In support of this proposition, Seals cites State v. Garcia, No. 10-1647, 2011 WL
3925731, at *2 (Iowa Ct. App. 2011), in which we concluded the filing of a “citation and
complaint” form, even without Garcia’s signature or a time and place for his appearance,
triggered the speedy indictment rule. To the extent our unpublished decision offered
persuasive authority, we recognize it has been invalidated by the following clarification in
Penn-Kennedy, 862 N.W.2d at 387: “[A] criminal prosecution is commenced upon the
filing of the first charging instrument, including the filing of a ‘complaint.’ Iowa Code
§ 804.1. . . . The speedy indictment time period, however, does not begin with the
commencement of the prosecution but with an arrest.”
                                          9



of the speedy indictment requirements of rule of criminal procedure 2.33(2)(a),

Iowa court rules.” Iowa Code § 805.1(4).

       The State counters that the concept of constructive arrest does not apply

to these facts because the deputies did not issue Seals a citation for tampering

with records. We agree the complaint filed on September 11 did not constitute a

citation in lieu of arrest so as to trigger the speedy indictment clock.

       Chapter 805 governs citations in lieu of arrest. “[A] peace officer having

grounds to make an arrest may issue a citation in lieu of making an arrest without

a warrant or, if a warrantless arrest has been made, a citation may be issued in

lieu of continued custody.” Iowa Code § 805.1(1). A citation must include the

following information: “the name and address of the person, the nature of the

offense, the time and place at which the person is to appear in court, and the

penalty for nonappearance.”       Iowa Code § 805.2.       Before the peace officer

releases the cited person, that person “shall sign the citation” and his or her

signature shall “serve as a written promise to appear in court at the time and

place specified.” Iowa Code § 805.3. The peace officer is required to give a

copy of the citation to the person.       Id.   Section 805.4 makes clear that a

“complaint” serves a separate purpose from the citation in lieu of arrest: “The law

enforcement officer issuing the citation shall cause to be filed a complaint in the

court in which the cited person is required to appear, as soon as practicable,

charging the crime stated in said notice.” Iowa Code § 805.4 (cross referencing

section 804.1 which describes commencing a criminal prosecution by filing a

complaint before a magistrate).
                                          10



       The complaint filed by Deputy Schneider was not a citation in lieu of

arrest. As the district court noted, spaces at the bottom of the complaint form

where a peace officer would designate a time and place for the defendant to

appear in court were not filled out. The space for the defendant’s signature was

also left blank. Accordingly, the complaint did not include a promise for Seals to

appear and did not fulfill the requirements for a citation in sections 805.2 and

805.3. In addition, the form was not signed by a judicial magistrate.3

       Our record does not establish that the complaint was served on Seals.

Even if we assume it was sent to him, because it was not a citation issued by a

peace officer commanding defendant’s later appearance, it did not constitute a

citation in lieu of arrest under section 805.1(4).

       Neither did the court’s issuance of an arrest warrant on September 11

constitute an arrest. When the warrant issued on the Johnson County tampering

charge, Seals was in the custody of Linn County authorities. “A person not in the

custody of county authorities is not arrested by the mere bringing of a charge in

that county.” See State v. Waters, 515 N.W.2d 562, 566 (Iowa Ct. App. 1994)

(citing State v. Beeks, 428 N.W.2d 307, 309 (Iowa Ct. App. 1988), which relied

on State v. Boelman, 330 N.W.2d 794, 795 (Iowa 1983)). “A person must be in

the custody of county authorities of the county issuing the arrest warrant for a

person to be under ‘arrest’ in that county.” Id.



3
  Even if the form had been signed by a magistrate, our supreme court has declined to
extend the constructive arrest doctrine in section 805.1(4) to situations where the
magistrate issued a citation under section 804.1. See State v. Mahan, 483 N.W.2d 1, 2
(Iowa 1992).
                                          11



       Seals contends on appeal that Waters and Boelman should be overruled

because the distinction between being in custody in different counties is less

significant today due to the ease of electronic filings. We are not convinced that

electronic filing has any bearing on the question of when an arrest occurs in the

county in which criminal charges have been filed. But more critically, because

Boelman was decided by our supreme court, we are not at liberty to overrule it.

See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014) (“Generally, it is the

role of the supreme court to decide if case precedent should no longer be

followed.”).

       Seals was arrested on September 26 when Johnson County authorities

took him into custody on the September 11 warrant. Accordingly, the district

court correctly denied his motion to dismiss claiming a speedy indictment

violation. Because the State filed its trial information within the required forty-five

day window, we affirm the conviction.

       AFFIRMED.
