                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2015
                            Filed December 23, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS F. LINGLE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



      A defendant appeals his conviction for possessing a controlled substance

claiming the district court should have granted his motion to dismiss.

AFFIRMED.



      Joel Walker of Law Office of Joel Walker, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

      In this case we are asked to determine whether the defendant’s encounter

with law enforcement amounted to an arrest for purposes of the speedy

indictment rule. We conclude it did not.

I.    BACKGROUND FACTS

      On March 27, 2014, an off-duty police officer observed Nicholas Lingle in

a car in the parking lot of Hy-Vee with what the officer believed was marijuana.

He called in the report, and Officers Dennis Tripp and Joshua Hayes responded

to the parking lot. When they came in contact with Lingle, Lingle admitted that he

had a bag of marijuana in the car and that it was inside the console. Officer Tripp

then removed Lingle from the car, handcuffed him, placed him in the back of the

patrol car, and read him his Miranda Rights.

      Lingle gave the officers permission to search the car. While Officer Hayes

was searching the car, Officer Tripp inquired whether Lingle wanted to help

himself reduce his legal troubles by providing some information to law

enforcement and specifically told Lingle that no charges would be filed if he

cooperated.   Lingle indicated he was interested in cooperating.       During the

search, the officers also found drug paraphernalia. Lingle was released at the

scene after the search.

      Subsequently, Lingle failed to cooperate.      On April 23, 2014, he was

charged by criminal complaint with the simple misdemeanor offense of

possessing drug paraphernalia and was arrested on or about April 24, 2014. On

May 13, 2014, the State filed a trial information charging Lingle with the offense
                                            3



of possessing a controlled substance.           Lingle filed a motion to dismiss the

controlled substance charge for failure to comply with Iowa Rule of Criminal

Procedure 2.33(2)(a), which requires an indictment1 be filed within forty-five days

of an arrest, alleging that he had been arrested on March 27, 2014. Following a

hearing, the district court denied the motion to dismiss.

       Upon the denial of the motion to dismiss, the case proceeded to a bench

trial. The court found Lingle guilty as charged. Lingle filed a timely notice of

appeal, challenging the district court’s denial of the motion to dismiss.2

II.    STANDARD OF REVIEW

       We review a district court’s decision regarding a motion to dismiss for lack

of speedy indictment for correction of errors at law. State v. Wing, 791 N.W.2d

243, 246 (Iowa 2010). We are bound by the findings of fact of the district court if

they are supported by substantial evidence. State v. Lyrek, 385 N.W.2d 248, 250

(Iowa 1986).

III.   DISCUSSION

       The right to a speedy indictment articulated in Iowa Rule of Criminal

Procedure 2.33(2)(a) is guaranteed by the United States Constitution as well as

the Constitution of the State of Iowa. Wing, 791 N.W.2d at 246. Pursuant to rule

2.33(2)(a), absent waiver or a good-cause exception, a party must be indicted

within forty-five days of his arrest, and a failure to do so requires dismissal. Iowa



1
  The county attorney may file a trial information in lieu of an indictment. Iowa R. Crim.
P. 2.5(1)
2
  Lingle was also charged and convicted of possessing drug paraphernalia. While a
notice of appeal was filed on the paraphernalia conviction, Lingle made no claim in his
brief related to that conviction. Therefore, we will not address it further.
                                           4



R. Crim. P. 2.33(2)(a).      The purposes of the speedy-indictment right are to

“relieve an accused of the anxiety associated with a suspended prosecution and

provide reasonably prompt administration of justice,” and to avoid “possible

impairment of the accused’s defense due to diminished memories and loss of

exculpatory evidence.” Wing, 791 N.W.2d at 246, 247.

       The speedy indictment clock starts with the arrest.           Id. at 246.    The

definition and manner of arrest are governed by Iowa Code sections 804.53 and

804.144 (2013) respectively. The Iowa 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 chapter 804. See Wing, 791

N.W.2d at 247, 48. In Wing, the court held,

              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.

       In State v. Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992), the Iowa

Supreme Court stated that when the “defendant was presented with the specific

alternative of either cooperating as a confidential informant or being arrested[,]


3
  Section 804.5 provides: “Arrest is the taking of a person into custody when and in the
manner authorized by law, including restraint of the person or the person’s submission to
custody.”
4
  Section 804.14 provides the notifications required to make an arrest:
        A person making an arrest must inform the person to be arrested of the
        intention to arrest the person, the reason for arrest, and that the person
        making the arrest is a peace officer, if such be the case, and require the
        person being arrested to submit to the person’s custody . . . .
                                          5



her decision to cooperate necessarily precluded the possibility of there being an

‘arrest.’” The Iowa Supreme Court reinforced this statement in Wing’s footnote:

“The court concluded Johnson–Hugi had not been arrested because at the

beginning of her encounter with undercover officers she was given a choice

between being arrested or cooperating with law enforcement.           She chose to

cooperate which precluded any reasonable understanding that she was being

arrested.” Wing, 791 N.W.2d at 249 n.9 (citation omitted).             The rationale

articulated by the Johnson-Hugi court was:

       Law enforcement authorities must be accorded latitude in procuring
       the non-volunteer assistance of private citizens to serve as
       confidential informants in combating crime. If every such action
       were deemed to be an “arrest” for purposes of rule [2.33(2)(a)], the
       time within which authorities could use informants to obtain
       information would be substantially limited. We refuse to hamstring
       law enforcement authorities by such a rule.

484 N.W.2d at 602.

       Lingle contends according to the facts in this case, a reasonable person in

his position would have believed an arrest occurred.          He argues the factual

scenario in this case is similar to Wing. In Wing, the defendant admitted during a

lawful traffic stop to possessing drugs found in the trunk of his car, was removed

from the car, placed in handcuffs, placed in the back of a locked patrol car, and

read his Miranda rights. Wing, 791 N.W.2d at 244, 245. In Wing, after the

search of the car, the defendant agreed to a search of his house and was

transported there by the police officers.       Id. at 245.     Not until additional

incriminating evidence was found in the defendant’s house did the police officer

start to talk with the defendant about the possibility of cooperation. Id.
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       In the present case, Lingle was not transported anywhere and was

specifically told no charges would be filed if he cooperated. The discussion of

cooperation occurred in the back of the patrol car shortly after the

commencement of the encounter. Therefore, we conclude a reasonable person

in Lingle’s position would not have believed that an arrest occurred. Thus, the

trial information was timely filed.

       We affirm the district court’s denial of Lingle’s motion to dismiss.

       AFFIRMED.

       Danilson, C.J., dissents; McDonald, J., concurs specially.
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MCDONALD, Judge. (concurs specially)

      I concur in the majority opinion for the reasons set forth therein and for the

additional reasons set forth in Justice Cady’s separate opinion in State v. Wing,

791 N.W.2d 243 (Iowa 2010).
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DANILSON, Chief Judge. (dissenting)

      I respectfully dissent. If being handcuffed, placed into the back of a patrol

vehicle, and read your Miranda rights does not constitute an “arrest” under State

v. Wing, 791 N.W.2d 243 (Iowa 2010), I am not sure what more needs to be

shown to establish an arrest. Certainly any reasonable person would conclude

they were not free to leave and were under arrest even if the officer subsequently

carried on a friendly conversation. More certain is the fact that if the individual

tried to leave, the individual would face another charge of interference with

official acts under Iowa Code section 719.1(1) (2013) for resisting an arrest. I

would reverse.
