                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0278
                            Filed November 13, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CARLOS JIMENEZ-REYES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      Carlos Jimenez-Reyes appeals from his conviction for possession of a

controlled substance following a bench trial on the minutes of testimony.

AFFIRMED.



      John L. Dirks of Dirks Law Firm, Nevada, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Stehen H. Holmes, County Attorney, and Keisha Cretsinger, Assistant

County Attorney, for appellee.



      Considered by Bower, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

       Carlos Jimenez-Reyes appeals from his conviction for possession of a

controlled substance following a bench trial on the minutes of testimony.

   I. Factual Background

       At approximately 9:30 p.m. on November 2, 2013, Lieutenant Jeff Brinkley

of the Ames Police Department noticed a parked vehicle with a lone occupant

parked in a parking lot behind closed businesses. Brinkley parked his squad car

in such a manner that the car he had observed could not leave the parking lot by

going forward, but would need to back up to leave. Brinkley approached the

vehicle on foot, knocked on the window of the car, and turned his flashlight in the

direction of the car’s interior. The officer observed cigarette rolling paper in the

vehicle and motioned to the occupant that he wanted to talk to him.            The

occupant, later identified as Jimenez-Reyes, rolled down his window, and the

officer immediately smelled marijuana. The officer believed the smell and what

he had observed provided an exception to the search warrant requirement under

the plain view concept.

       The officer asked Jimenez-Reyes to step out of the car, and he complied.

A search of the vehicle resulted in Brinkley locating marijuana in its interior.

Jimenez-Reyes was arrested and charged with possession of marijuana.

       Jimenez-Reyes filed a motion to suppress all evidence seized claiming its

acquisition was a result of an illegal seizure.        The motion was overruled.

Jimenez-Reyes stipulated to a bench trial on the minutes of testimony, and he

was found guilty as charged. Jimenez-Reyes has appealed, claiming he was

unlawfully detained or in effect seized prior to the search.
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   II. Error Preservation

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

further objection to its admission at trial is necessary to preserve error. State v.

Richards, 229 N.W.2d 229, 232 (Iowa 1975). Error has been preserved.

   III. Scope of Review

        The claim of an alleged search and seizure raises constitutional issues;

therefore the review is de novo and requires an independent review based on the

totality of the circumstances as shown by the entire record. State v. Baldon, 829

N.W.2d 785, 789 (Iowa 2013).

   IV. Discussion

        Jimenez-Reyes contends he was seized when Brinkley pulled up in his

squad car and parked so he could not leave by traveling forward, shined his

flashlight into the car window, and motioned indicating he wanted to talk to him.

        Nearly fifty years ago the United States Supreme Court in Terry v. Ohio,

392 U.S. 1, 19-27 (1968), confronted the tension between law enforcement’s

duty to investigate and the prohibition against unreasonable searches and

seizures set out in the Fourth Amendment of the United States Constitution. The

court stated: “Obviously not all personal intercourse between policemen and

citizens involves ‘seizures’ of persons.     Only when the officer by means of

physical force or show of authority has in some way restrained the liberty of a

citizen may we conclude that a ‘seizure’ has occurred.” Terry, 392 U.S. at 19

n.16.

        Jimenez-Reyes cites studies that indicate people are naturally intimidated

by uniformed officers and more likely to respond to their request than to the
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request of an ordinary citizen.    In that sense, Jimenez-Reyes responded to

Lieutenant Brinkley’s gesture, which he interpreted to be a request to open the

window so Brinkley could talk to him. However, the test is not whether he was

more responsive to the officer’s request than he would have been to a request

made by an ordinary fellow citizen. To constitute an illegal seizure of the person

the circumstances encountered must be so intimidating that a reasonable person

would have believed he was not free to leave had he not responded. State v.

Reinders, 690 N.W.2d 78, 82 (Iowa 2004). The required element of coercion is

not established by the usual indicia of police authority.   State v. Wilkes, 756

N.W.2d 838, 843 (Iowa 2008).

      Jimenez-Reyes relies in part on State v. Pals, 805 N.W.2d 767 (Iowa

2011), for his claim that he was unlawfully seized. Pals involved a consent to

search that took place after a stop. 805 N.W.2d at 770-71. Jimenez-Reyes also

relies on State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995), which again

involved a traffic stop by law enforcement.

      Our supreme court has distinguished Pals from a situation more similar to

the one under consideration. See State v. Lowe, 812 N.W.2d 554, 575 n.11

(Iowa 2012). The Lowe court noted Pals was clearly distinguishable because

Pals had been subjected to a traffic stop and was seated in the front seat of a

squad car when the consent was given. Id. Whenever law enforcement stops a

vehicle for whatever reason an element of coercion exists. Id.; Pals, 805 N.W.2d

at 781.

      There was no forced stop in this case. Even if a law enforcement officer

has no basis for suspecting an individual of criminal activity, he or she has the
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right to pose questions and ask for identification provided the officer does not use

coercive means to induce cooperation. State v. Smith, 683 N.W.2d 542, 547

(Iowa 2004) (citing United States v. Drayton, 536 U.S. 194, 201 (2002)).

      In summary, coercion is implied in a traffic stop. If a stop is not to be

considered an illegal seizure it generally requires an articulable reason for a

belief that some kind of criminal activity is afoot. State v. Kooima, 833 N.W.2d

202, 206 (Iowa 2013). Discourse initiated by law enforcement without a stop is

not a seizure and does not usually require a suspicion of criminal activity. State

v. Harlem, 301 N.W.2d 717, 719-20 (Iowa 1981). The factual situation in this

matter is of the latter type. Jimenez-Reyes was in his car but there was no traffic

stop involved. The factual situation is comparable to a law enforcement officer

approaching someone on the street and asking for his name and identification.

      AFFIRMED.
