                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2043
                             Filed December 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HUNTER NATHANIAL FRESCOLN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,

District Associate Judge.



      Hunter Frescoln appeals the judgment and sentence entered following his

conviction for operating while intoxicated (OWI), second offense. AFFIRMED.



      Robert G. Rehkemper III of Gourley, Rehkemper & Lindholm, P.L.C., West

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger and Timothy M.

Hau, Assistant Attorneys General, for appellee.



      Heard by Danilson, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Hunter Frescoln appeals the judgment and sentence entered following his

conviction for operating while intoxicated (OWI), second offense. He challenges

the district court order denying his motion to suppress the results of a chemical

test showing his blood alcohol content was in excess of the legal limit.

       I. Background Facts and Proceedings.

       Ankeny Police Officer Jake Cusack initiated a traffic stop of the vehicle

Frescoln was driving on the night of August 12, 2016. During the stop, Officer

Cusack observed signs that Frescoln was intoxicated, and Frescoln admitted he

had consumed two beers. While Frescoln performed field sobriety tests, Officer

Cusack observed more signs that Frescoln was intoxicated. Frescoln refused to

submit to a preliminary breath test. Officer Cusack transported Frescoln to the

Pleasant Hill Police Department and secured a search warrant to seize a sample

of Frescoln’s blood for chemical testing, which showed Frescoln’s blood alcohol

content was .093.

       The State charged Frescoln with OWI, third offense. Frescoln moved to

suppress the results of the chemical test, alleging the State violated his rights

under Iowa Code chapter 321J (2016) and the Iowa Constitution. The district court

denied the motion following a hearing. Frescoln waived his right to a jury trial, and

the case was submitted to the court on the minutes of evidence. The court found

Frescoln guilty of second-offense OWI and sentenced him to a period of not more

than two years of incarceration with all but thirty days of the sentence suspended.



       II. Implied Consent Statute.
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      The first question before us is whether a law enforcement officer has the

option of obtaining a sample for chemical testing by either invoking the implied

consent statute or obtaining a warrant. Frescoln asserts the Iowa legislature

removed the option of obtaining a chemical sample by warrant when it enacted our

implied consent laws. Under Frescoln’s interpretation, an officer may only obtain

a sample for chemical testing by following the procedure established by our implied

consent statute.

      We review the district court’s interpretation of our implied consent statute

for the correction of errors at law. See State v. Lamoreux, 875 N.W.2d 172, 176

(Iowa 2016). We affirm if the district court’s ruling correctly applied the law and

substantial evidence supports its fact findings. See id.

      The United States and Iowa Constitutions prohibit unreasonable searches.

See State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997). “A warrantless search

is presumed unreasonable.” Id. To conduct a valid search without a warrant, it

must fall under one of the recognized exceptions to the warrant requirement. See

id. An exception to the warrant requirement exists when a person consents to

allow the search. See id. However, obtaining a search warrant is the preferred

method for conducting a constitutionally permissible search. See Terry v. Ohio,

392 U.S. 1, 20 (1968) (“We do not retreat from our holdings that the police must,

whenever practicable, obtain advance judicial approval of searches and seizures

through the warrant procedure . . . .”); State v. Ochoa, 792 N.W.2d 260, 285 (Iowa

2010) (“We have also generally endorsed the warrant-preference requirement.”).

As our supreme court recently affirmed in State v. Pettijohn, 899 N.W.2d 1, 22-23
                                         4


(Iowa 2017), “Whenever practicable, the state should obtain a warrant prior to

conducting a search.”

       Our legislature enacted Iowa’s implied consent law “to protect public safety

and eliminate intoxicated driving from Iowa roads.” State v. McIver, 858 N.W.2d

699, 704 (Iowa 2015). Under the law, Iowa drivers have impliedly consented to

chemical testing when there are “reasonable grounds to believe that the person

has been operating a motor vehicle in violation of section 321J.2 or 321J.2A.” Iowa

Code § 321J.6(2); accord McIver, 858 N.W.2d at 705. The implied consent law

provides an incentive for drivers to consent to chemical testing by subjecting those

who refuse to voluntarily provide a sample for testing to license revocation. See

McIver, 858 N.W.2d at 704-05. It does not, however, require a driver to submit to

chemical testing. See id. at 704. Consent to chemical testing obtained under the

implied consent statute falls under the voluntary consent exception to the warrant

requirement. See State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991) (finding

Stanford voluntarily consented to chemical testing after reading implied consent

advisory); see also State v. Palmer, 554 N.W.2d 859, 861 (Iowa 1996); cf.

Pettijohn, 899 N.W.2d at 29 (analyzing whether, under the totality of the

circumstances, the defendant consented to submit to chemical testing pursuant to

Iowa Code chapter 462A—Iowa’s implied consent statute for boating—after

holding the chapter does not automatically permit warrantless searches consistent

with the Iowa Constitution). Therefore, it is imperative that the decision to provide

a sample for chemical testing be reasoned and informed. See State v. Overbay,

810 N.W.2d 871, 876 (Iowa 2012).
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          In State v. Higgins, 294 N.W.2d 686, 687-88 (Iowa 1980), the supreme court

held that if a driver refuses a chemical test after being offered one under the implied

consent law, the officer cannot then go “outside the statute” to obtain a warrant for

chemical testing. It is undisputed that Frescoln was never presented with an

opportunity, through the invocation of implied consent or otherwise, to consent or

refuse evidentiary chemical testing.       The Higgins decision is distinguishable

because here, Officer Cusack never invoked the implied consent procedures and

Frescoln never refused a chemical test.

          Frescoln argues the procedures outlined in chapter 321J are the only

means by which law enforcement may obtain chemical testing of an OWI suspect.

He attempts to construe the statute in a manner making it the exclusive means by

which law enforcement can obtain chemical testing of persons suspected of OWI.

However, nothing in the statute expressly requires this finding. “We do not read a

requirement into a statutory scheme when none exists because ‘[i]t is not our

province to write such a requirement into the [implied consent] statute.’” State v.

Fischer, 785 N.W.2d 697, 705-06 (Iowa 2010) (alteration in original) (quoting

Gottschalk v. Sueppel, 140 N.W.2d 866, 872 (Iowa 1966)).

          The explicit language of chapter 321J and our supreme court’s prior

decisions indicate the implied consent statute is not the exclusive means by which

law enforcement may obtain chemical testing. The final provision of the chapter

states:

                 This chapter does not limit the introduction of any competent
          evidence bearing on the question of whether a person was under the
          influence of an alcoholic beverage or a controlled substance or other
          drug, including the results of chemical tests of specimens of blood,
                                            6


       breath, or urine obtained more than two hours after the person was
       operating a motor vehicle.

Iowa Code § 321J.18. Our supreme court has said this provision “expresses our

legislature’s intent that the chapter ‘not . . . be construed as limiting the introduction

of competent evidence bearing on whether an accused was intoxicated.’” State v.

Demaray, 704 N.W.2d 60, 64 (Iowa 2005) (quoting State v. Charlson, 154 N.W.2d

829, 833 (Iowa 1967)). In Demaray, a defendant consented to release his medical

records—including the results of a chemical test performed by the hospital for

purposes of treatment—to a law enforcement officer. See id. at 61. Although the

chemical test was not obtained according to the procedures set forth in chapter

321J, the supreme court held the results were not subject to suppression because

the chapter is not the exclusive means by which the State can obtain chemical

testing evidence from a defendant:

       [T]here is no reason to limit the scope of a medical records release
       by a defendant because the State could have invoked implied
       consent procedures. Such rationale is contrary to the legislative
       intent expressed in section 321J.18 for the implied consent statute
       not to limit other competent evidence of intoxication, including
       evidence of other tests.

Id. at 66 (emphasis added).

       Our supreme court has also held that the procedure for obtaining a search

warrant set forth in section 321J.10 “does not limit the State’s authority to obtain a

search warrant under the general search warrant provisions of Iowa Code chapter

808.” See State v. Oakley, 469 N.W.2d 681, 682 (Iowa 1991). In Oakley, the

defendant refused to submit to chemical testing for law enforcement but authorized

a blood withdrawal for the purpose of independent testing. Id. The sample was

retained by law enforcement but was not analyzed until three months after the
                                            7


defendant’s arrest, when the county attorney obtained a search warrant to seize

the sample and have it tested. See id. Oakley sought to suppress the test results

because the State “made no attempt to comply with the procedures and time limits

of section 321J.10.” See id. In rejecting this argument, the supreme court noted

that “section 321J.10(2) expressly provides that search warrants may be obtained

either under the limited circumstances of section 321J.10(3) or in accordance with

chapter 808,” concluding, “The legislature obviously did not intend for chapter 321J

to preempt chapter 808.” Id. at 683. Following Oakley, the court has also held the

results of a chemical test conducted on a sample drawn by hospital personnel for

the purpose of diagnostic treatment and obtained by law enforcement one month

later pursuant to a search warrant were admissible. See State v. Rains, 574

N.W.2d 904, 913-14 (Iowa 1998), overruled on other grounds by State v. Williams,

895 N.W.2d 856 (Iowa 2017).

       In accordance with the above, we find the State’s ability to obtain chemical

testing is not limited to the provisions of chapter 321J so long as the procedure

utilized conforms to constitutional requirements.            Adhering to the warrant

requirement is the best means upon which to conform to the constitutional

protections from unreasonable searches and seizures. Because Officer Cusack

obtained a valid warrant for chemical testing, the results of Frescoln’s chemical

testing are admissible.1



1
  Frescoln alleges that the equal protection clause of the Iowa Constitution compels a
finding that the implied consent procedure applies to all individuals investigated for OWI.
Although Frescoln argued at the suppression hearing that the implied consent law must
apply to every individual in order to prevent indiscriminate chemical testing, the district
court did not specifically address any equal protection argument in denying the motion to
suppress. Accordingly, the issue is not preserved for appeal. See State v. Mitchell, 757
                                          8


       III. The Search Warrant.

       Frescoln next argues the district court erred in denying his motion to

suppress because law enforcement exceeded the scope of the search warrant by

testing the blood sample obtained. He argues that although the warrant allowed

Officer Cusack to obtain a sample of his blood, it never authorized the officer to

perform chemical testing on that specimen.

       We review the constitutionality of a search de novo. See State v. White,

887 N.W.2d 172, 175 (Iowa 2016). De novo review requires an independent

evaluation of the record. See id. Although we defer to the district court’s fact

findings, we are not bound by them. See id.

       A general search warrant is unconstitutional. State v. Thomas, 540 N.W.2d

658, 662 (Iowa 1995) (citations omitted). Instead, a warrant “must describe with

particularity the items to be seized.” State v. Hall, 235 N.W.2d 702, 717 (Iowa

1975). But the requirements are practical, not abstract, and “[e]laborate specificity

is not required.” See State v. Bakker, 262 N.W.2d 538, 545 (Iowa 1978). “A

description which points out or identifies the place to be searched with such

reasonable certainty as will obviate any mistake in locating it is all the Constitution

or statute requires.” State v. Moore, 101 N.W. 732, 733 (Iowa 1904). We construe

the language of the warrant “in a commonsense manner, resolving doubtful cases

in favor of their validity.” State v. Angel, 893 N.W.2d 904, 911 (Iowa 2017) (quoting

State v. Sykes, 412 N.W.2d 578, 581 (Iowa 1987)). In other words, there is no

requirement that a “hypertechnical, perfectly accurate description must be



N.W.2d 431, 435 (Iowa 2008) (holding an issue not ruled on by the district court is not
preserved for appeal).
                                         9


provided,” but rather the description in the warrant need only be “sufficiently

definite to enable the searcher to identify the persons, places or things the

magistrate has previously determined should be searched or seized.” Thomas,

540 N.W.2d at 662 (citations omitted).

       The warrant issued states: “You are hereby commanded to take a specimen

of said person and to take such specimens into custody, and to bring a list of seized

specimens before me at my office.” The warrant further describes the “specimen”

as “[a] blood, urine, and/or breath specimen from [Frescoln].” The warrant then

states that the specimen was sought because “[o]fficers have probable cause to

believe that a traffic violation under Iowa Code § 321J.2 has occurred and the

specimen[] sought []is relevant to a criminal investigation into a violation of Iowa

Code § 321J.2.”

       In denying Frescoln’s motion to suppress, the district court found “the

testing of the blood sample in this case did not exceed the scope of the warrant.”

We agree. Although the warrant does not explicitly state that the blood sample

would be subject to chemical testing, the stated reason for obtaining the blood

sample was its relevance to an OWI investigation. The best practice is to state the

purpose for requesting the sample on the warrant. However, a commonsense

reading of the warrant implies the blood sample would be subjected to chemical

testing. See State v. Martines, 355 P.3d 1111, 1116 (Wash. 2015) (holding a

warrant authorizing extraction of a blood sample to obtain evidence the defendant

was driving while under the influence necessarily authorizes testing of that sample

for evidence of the suspected crime).
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      Furthermore, though the issue has not been decided in Iowa, we note that

other courts have held that a defendant loses a privacy expectation in blood after

its lawful removal from the body, and therefore, any testing of that blood does not

violate the constitutional protections from unreasonable searches and seizures.

See United States v. Snyder, 852 F.2d 471, 473-74 (9th Cir. 1988) (holding that

“so long as blood is extracted incident to a valid arrest based on probable cause

to believe that the suspect was driving under the influence of alcohol, the

subsequent performance of a blood-alcohol test has no independent significance

for fourth amendment purposes, regardless of how promptly the test is

conducted”); State v. Fawcett, 877 N.W.2d 555, 561 (Minn. Ct. App. 2016) (“Once

a blood sample has been lawfully removed from a person’s body, a person loses

an expectation of privacy in the blood sample, and a subsequent chemical analysis

of the blood sample is, therefore, not a distinct Fourth Amendment event.”); People

v. King, 663 N.Y.S.2d 610, 614 (N.Y. App. Div. 1997) (“It is also clear that once a

person’s blood sample has been obtained lawfully, he can no longer assert either

privacy claims or unreasonable search and seizure arguments with respect to the

use of that sample. Privacy concerns are no longer relevant once the sample has

already lawfully been removed from the body, and the scientific analysis of a

sample does not involve any further search and seizure of a defendant’s person.”);

see also Andrei Nedelcu, Blood and Privacy: Towards A “Testing-As-Search”

Paradigm Under the Fourth Amendment, 39 Seattle U. L. Rev. 195, 201 (Fall 2015)

(“[N]ational search and seizure jurisprudence is largely in agreement: No express

judicial authorization is needed to analyze a suspect’s blood (or any other

biological sample) once it has already been lawfully procured.”). Because the
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warrant limits the purpose of the testing in this case, we take no position on the

question whether a defendant would retain any expectation of privacy in a blood

sample seized under a search warrant.

      Because we find the search warrant here provided for chemical testing of

the blood sample, we conclude Frescoln’s constitutional rights have not been

violated. We affirm the order denying Frescoln’s motion to suppress the results of

the chemical testing.

      AFFIRMED.
