                       IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1980
                             Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CONNOR WILLIAM CLAR STEFFENS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Jeffrey L.

Harris (motion to suppress), James D. Coil (bench trial), and Joseph M. Moothart

(judgment and sentence), District Associate Judges.




       Steffens appeals his conviction for possession of marijuana. DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.



       David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

City, for appellant.

       Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                       2


DOYLE, Judge.

       Connor Steffens appeals his conviction for possession of marijuana, first

offense. He contends the district court erred in denying his motion to suppress

the evidence seized following the stop of his vehicle. He argues the stop was

unlawful and therefore unconstitutional. Upon our de novo review, we reverse

and remand for further proceedings.

       I. Background Facts and Proceedings.

       In March 2014, law enforcement officials executed a search warrant at a

house and located a small marijuana grow operation and other drug

paraphernalia. Steffens was one of four persons present at the house during the

search.     Although probable cause existed at that time to arrest him for

possession of marijuana, a serious misdemeanor, and possession of drug

paraphernalia, a simple misdemeanor, Steffens agreed to cooperate with law

enforcement and was not arrested that night.

       On November 2, 2014, La Porte City Police Department Officer Jordan

Ehlers was working third-shift patrol when he observed Steffens driving his

vehicle. Officer Ehlers was involved in the execution of the March 2014 search

warrant and knew his police department “had been looking for [Steffens in]

reference [to] drug charges [the department] had on him from an incident

involving a search warrant.”    For this reason, he initiated a traffic stop of

Steffens’s vehicle. However, there was no existing arrest warrant for Steffens

related to the March 14 incident. Upon contact with Steffens, Officer Ehlers

“immediately . . . detected a strong odor of marijuana coming from inside the

vehicle.”   The officer searched Steffens’s vehicle, found a pipe containing
                                          3


marijuana, and arrested Steffens for possession of marijuana. The next day, a

criminal complaint was sworn by Officer Ehlers accusing Steffens of possession

of marijuana, first offense, in violation of Iowa Code section 124.401 (2013),

based upon the November 2 traffic stop and search.1 Later, the State filed a trial

information charging Steffens with the November 2 possession offense.

       In February 2015, Steffens filed a motion to suppress the evidence

obtained during the search of his vehicle. He asserted the stop, search, and

questioning of him violated the Federal and Iowa Constitutions. The State did

not file a written resistance. At a hearing on the motion, the parties stipulated to

the underlying facts of the case, as the district court found:

               The parties stipulate that on or about the 14th day of March
       2014, the [officer] had probable cause to arrest [Steffens] for
       possession of a controlled substance, a misdemeanor offense. The
       [officer] elected at this time, however, not to arrest [Steffens] in
       exchange for [Steffens’s] cooperation with law enforcement.
               ....
               The parties further stipulate that the officer’s stop of
       [Steffens] in November 2014 was based upon the officer’s interest
       in determining when and whether [Steffens] would comply with the
       terms of the March 2014 agreement to cooperate with law
       enforcement. Between [Steffens’s] March 2014 misdemeanor
       offense and [Steffens’s] stop in November 2014 and his eventual
       arrest later that month, [Steffens] had not met with enforcement and
       had essentially failed to comply with his agreement.

Steffens conceded he was stopped because he “had fallen out of contact with the

officer . . . when he was supposed to be cooperating.” However, he argued his

prior actions, for which he could have been arrested, did not constitute probable

cause or reasonable suspicion to justify the stop of his vehicle in November


1
 An arrest warrant was later obtained for Steffens based upon the March 14 incident,
and he was arrested on that warrant on November 25, 2014. Those charges are not the
subject of this appeal.
                                         4


2014. Conversely, the State asserted there was probable cause for the stop,

arguing:

              In this case, here we don’t actually have an arrest. This is
       an encounter between police and the defendant. Yes, they did
       exercise force by turning on lights. However, this is no different an
       interaction than if they would have seen him on the side of the
       street and he started to walk away. They would have told him to
       stop and talked to him.
              So, this is certainly a different type of situation than what we
       normally run into. However, if there is probable cause to arrest
       someone and the officer has probable cause, even for a
       misdemeanor, the officer can arrest that person without an arrest
       warrant. So, in other words, he can stop and detain that person.
              Now, whether he decides to arrest that person at that time or
       not, he still has the probable cause to stop them. . . . As long as
       the probable cause is there for the original March incident in this
       case, the officer could have stopped the defendant at any point to
       place him under arrest. When he stops him, if he chose not to
       place him under arrest at that time, that would also be the officer’s
       prerogative, as long as there’s probable cause for an arrest.

       In its order, the court found the stop of Steffens’s vehicle “was incident to

the [officer’s] interest in determining when and whether [Steffens] would comply

with the ‘cooperation’ agreement.” It further found that Steffens’s eventual arrest

in November was not vitiated by the eight-month lapse since the initial

justification for his arrest in March. The court found the probable cause to arrest

Steffens related to the March 2014 incident existed until Steffens’s eventual

arrest on November 25. Also, the court found that Iowa Code section 804.7 did

“not require a peace officer to make a warrantless arrest within a certain period of

time after the offense has been committed in the officer’s presence.” In denying

Steffens’s motion, the court necessarily concluded, without specifically saying so,

that the probable cause to arrest arising out of the March incident still existed at

the time of the November 2 stop, and though Steffens was not arrested at that
                                          5


time for the March 2014 incident, his failure to cooperate with law enforcement as

agreed permitted Officer Ehlers to stop Steffens’s vehicle.

         Thereafter, Steffens agreed to a bench trial on the minutes of testimony.

The court found Steffens guilty as charged. Steffens now appeals, challenging

the court’s denial of his motion to suppress.

         II. Standard of Review.

         We review the constitutionality of the stop de novo, which requires us to

independently evaluate “the totality of the circumstances as shown by the entire

record.” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). The State bears the

burden of proving a stop and subsequent search did not violate the Fourth

Amendment.        See State v. Jackson, 878 N.W.2d 422, 437 (Iowa 2016)

(discussing warrantless search); State v. Tyler, 830 N.W.2d 288, 293, 298 (Iowa

2013) (discussing probable cause and reasonable suspicion for an investigatory

stop).    “If the State fails to carry its burden, all evidence obtained from

the . . . stop must be suppressed.” State v. Vance, 790 N.W.2d 775, 781 (Iowa

2010); see also Tyler, 830 N.W.2d at 293. “In our review of the suppression

ruling, we consider not only the evidence at the suppression hearing but also the

evidence at trial.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).

         III. Discussion.

         “Both the Fourth Amendment to the United States Constitution and article

I, section 8 of the Iowa Constitution prohibit unreasonable searches and seizures

by the government.”         Tyler, 830 N.W.2d at 291.   “Because the search and

seizure clause of the Iowa Constitution is nearly verbatim to the language of the

Fourth Amendment,” we generally “interpret the scope and purpose of the Iowa
                                        6


Constitution’s search and seizure provisions to track with federal interpretations

of the Fourth Amendment.” State v. Christopher, 757 N.W.2d 247, 249 (Iowa

2008). Steffens has not proposed a standard for interpreting our search and

seizure provisions under the Iowa Constitution differently from its federal

constitutional counterpart, so we will apply the general standards as outlined by

the United States Supreme Court for addressing a search-and-seizure challenge

under the Iowa Constitution. See Tyler, 830 N.W.2d at 291-92.

      “The Fourth Amendment protects persons from unreasonable intrusions

by the government upon a person’s legitimate expectation of privacy.         This

protection includes unreasonable intrusions by law enforcement officers.” State

v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004) (internal citation omitted).

      It is well-settled law that when a police officer stops a motor vehicle and

detains the occupant, the stop constitutes a seizure that implicates the Fourth

Amendment. See, e.g., Brendlin v. California, 551 U.S. 249, 255 (2007); Whren

v. United States, 517 U.S. 806, 809-10 (1996); United States v. Sharpe, 470 U.S.

675, 682 (1985); see also Tyler, 830 N.W.2d at 292 (“A traffic stop is

unquestionably a seizure under the Fourth Amendment.”).         This is because

“occupants of motor vehicles, whether drivers or passengers, ordinarily have a

legitimate expectation of privacy which is invaded when the vehicle is stopped by

the government.” State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984). Consequently,

Officer Ehlers’s stop of Steffens’s vehicle—no matter the reason—was a

“seizure” contemplated by the Fourth Amendment.

      Nevertheless, the inquiry does not end here, because “[t]he Fourth

Amendment is not . . . a guarantee against all searches and seizures.” Sharpe,
                                        7


470 U.S. at 682.      “The essential purpose of the proscriptions in the Fourth

Amendment is to impose a standard ‘reasonableness’ upon the exercise of

discretion by government officials, including law enforcement agents, in order ‘to

safeguard the privacy and security of individuals against arbitrary invasions.’”

Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (footnote and citations

omitted).    Simply put, the Fourth Amendment only prohibits searches and

seizures that are unreasonable.     See id.; see also Whren, 517 U.S. at 810;

Sharpe, 470 U.S. at 682.      Thus, whether the stop of Steffens’s vehicle was

unconstitutional hinges upon whether the stop was “reasonable.”

      Determining if a particular law enforcement practice was reasonable

necessitates “balancing its intrusion on the individual’s Fourth Amendment

interests against its promotion of legitimate governmental interests.” Prouse, 440

U.S. at 654 (footnote omitted). “Reasonableness . . . is measured in objective

terms by examining the totality of the circumstances.” Ohio v. Robinette, 519

U.S. 33, 39 (1996).

      “As a general matter, the decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic violation has

occurred,” Whren, 517 U.S. at 810, or have probable cause “to believe that the

individual has committed a crime,” Bailey v. United States, 133 S. Ct. 1031, 1037

(2013).     See also Tyler, 830 N.W.2d at 293.    Even absent probable cause,

officers can still stop persons under certain circumstances, including the brief

stop of one’s “moving automobile to investigate a reasonable suspicion that its

occupants are involved in criminal activity.” United States v. Hensley, 469 U.S.

221, 226 (1985); see also Tyler, 830 N.W.2d at 292. The reasonable-suspicion
                                         8


standard “is more than a hunch or unparticularized suspicion, but less

demanding than showing probable cause.” State v. King, 867 N.W.2d 106, 123

(Iowa 2015); see also Lewis, 675 N.W.2d at 525 (“The reasonable and articulable

suspicion standard of Terry [v. Ohio, 392 U.S. 1 (1968),] is less than probable

cause.”). In the context of a vehicular stop for investigatory purposes, mere

reasonable suspicion is all that is required. See King, 867 N.W.2d at 123. But,

probable cause is generally required to “effect a seizure.” See id.

       The State argues on appeal the stop was lawful as Officer Ehlers had

reasonable suspicion to believe that criminal activity was afoot, but the State then

goes on to assert “the stop of [Steffens’s] vehicle was not made on mere

reasonable suspicion of a completed misdemeanor; rather, the parties stipulated

that the officer had probable cause.” The reasonable-suspicion argument was

not raised before or addressed by the district court as a justification for the stop.

Additionally, beyond this statement in its brief, the State makes no claim the stop

was supported by reasonable suspicion. Insofar as the State claims the stop

was supported by reasonable suspicion, we find the State has not preserved the

argument for our review. See, e.g., State v. Gaskins, 866 N.W.2d 1, 4 (Iowa

2015) (not considering any other theory because the “State did not assert that

any other theory or exception to the warrant requirement justified the warrantless

search the officers performed”); State v. Short, 851 N.W.2d 474, 479-80 (Iowa

2014) (not considering consent on appeal because “the State did not argue that

Short voluntarily consented to the search”); Tyler, 830 N.W.2d at 295 (noting

State’s argument on appeal was not raised before the district court below and did

not require its review but addressing argument because it had no merit); State v.
                                         9

Ochoa, 792 N.W.2d 260, 291 (Iowa 2010) (“An argument not made on an issue

before the district court is ordinarily waived.”). In any event, the State failed to

present any evidence that Officer Ehlers had reasonable suspicion to believe

criminal activity was afoot at the time of the stop.     Consequently, the higher

standard of probable cause was required to effectuate a constitutional seizure

here. See King, 867 N.W.2d at 123.

       A. Stipulation.

       The State argues the stop was reasonable because “the parties stipulated

that the officer had probable cause.” If only it were that easy for the State. The

record here evidences that Steffens only stipulated that probable cause existed

on March 14, 2014, to arrest Steffens for possession of a controlled substance.

Steffens’s argument at the motion-to-suppress hearing was that the officer did

not have probable cause to stop his vehicle in November 2014. Even the State’s

appellate brief, in its rendition of the facts, specifies that Steffens was in the

house and was in possession of a controlled substance during the March 2014

search, and the “parties stipulated that officers had probable cause to arrest

Steffens for possession of a controlled substance at that time.”         (Emphasis

added.) Consequently, the stipulation does not resolve the issue of whether,

under the specific facts of this case, the existence of probable cause in March

2014 made it reasonable to stop Steffens almost eight months later.

       B. Probable Cause.

       “Probable cause exists if the totality of the circumstances as viewed by a

reasonable and prudent person would lead that person to believe that a crime

has been or is being committed and that the arrestee committed or is committing
                                         10

it.” Lewis, 675 N.W.2d at 525 (citation omitted). In essence, “the purpose of a

probable cause stop is to seize someone who has already committed a crime.”

Tyler, 830 N.W.2d at 293.

       Officer Ehlers did not testify at the suppression hearing or trial, but his

police reports were submitted at the hearing. Officer Ehlers’s November 2, 2014

police report merely stated he initiated the stop because he knew the police

department “had been looking for [Steffens] reference [sic] drug charges we had

on him from an incident involving a search warrant.” Officer Ehlers’s later police

report—made after he arrested Steffens concerning the March 2014 incident—

summarized that, “No arrest [sic] were made that night due to a pending drug

investigation. All subjects had agreed to attempt to work off charges. Steffens

was giving [sic] multiple opportunities to work with authorities to conduct

controlled buys but never committed.” There was no written agreement between

Steffens and the police department setting forth his agreed-upon obligations for

full cooperation, but the parties agreed Steffens “had fallen out of contact with the

officer when he was supposed to be cooperating,” “[h]e didn’t do what he had

agreed to do, which was provide information to law enforcement and assist law

enforcement.” There was no explanation in the record of what the officer or the

department had done to contact Steffens between March and November. The

parties agreed Steffens was stopped to “make contact with him, find out if he was

still going to cooperate.”

       We are not directed to any cases directly on point. It is undisputed there

was no traffic violation in this case. It is clear from this record that when pulling

Steffens over, Officer Ehlers had no basis to arrest Steffens for the March
                                         11


offense given the cooperation agreement.        Even had Steffens breached the

cooperation agreement, it was not a crime. The State presented no exigent

circumstances justifying the stop. Though “we recognize the importance to law

enforcement of cooperation from suspects involved in criminal activity,” State v.

Wing, 791 N.W.2d 243, 250 (Iowa 2010), one’s expectation of privacy and

freedom in the operation of an automobile is also a significant consideration.

Courts are “not empowered to suspend constitutional guarantees so that the

[State] may more effectively wage a ‘war on drugs.’ If that war is to be fought,

those who fight it must respect the rights of individuals, whether or not those

individuals are suspected of having committed a crime.” Florida v. Bostick, 501

U.S. 429, 439 (1991) (internal citation omitted). Here, we do not find the State

established Officer Ehlers had grounds to make the warrantless stop of

Steffens’s vehicle.

       Acknowledging it was not directly on point, the State relied on Christopher

at the suppression hearing. In that case, an officer observed Christopher driving

a car. Christopher, 757 N.W.2d at 248. The next day the officer checked on

Christopher’s driving status and learned he was barred from driving. Id. Instead

of filing a police report or obtaining an arrest warrant, the officer decided to

simply arrest Christopher the next time he saw him. Id. Five weeks later, the

officer saw Christopher and arrested him for driving while barred.                Id.

Christopher was searched and marijuana and crack cocaine were found in his

pant pockets.    Id.   After being charged with two counts of possession of a

controlled substance, Christopher filed a motion to suppress, arguing the officer’s

failure to obtain an arrest warrant violated his constitutional right to be free from
                                          12

unreasonable searches and seizures. Id. at 249. The motion was denied. Id.

On appeal, the supreme court concluded Christopher’s warrantless arrest five

weeks after the officer observed him driving while barred did not offend the

Fourth Amendment of the United States constitution or article 1, section 8 of the

Iowa constitution. Id. at 251. We agree Christopher is not on point. In the

present case, law enforcement officers agreed not to arrest Steffens for the

March possession offense in exchange for his cooperation. No such agreement

not to arrest existed in Christopher. With this significant distinction, Christopher

is not dispositive here.2 See id.

       We conclude the stop was unreasonable and therefore violated Steffens’s

rights under the Fourth Amendment and article I, section 8 of the Iowa

Constitution to be free from unreasonable searches and seizures by the

government. Thus, all evidence obtained in the subsequent stop is inadmissible.

Accordingly, we reverse the ruling of the district court denying Steffens’s motion

to suppress, as well as his conviction and sentence, and we remand for further

proceedings consistent with this opinion. See State v. Kurth, 813 N.W.2d 270,

281 (Iowa 2012) (“[W]e reverse the denial of Kurth’s motion to suppress as well

his conviction and sentence and remand for further proceedings.”).

       DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.




2
  We also note the police officer personally observed Christopher driving while barred.
Id. at 248. Such is not the case here because the record does not clearly establish
whether Officer Ehlers personally observed Steffens in possession of marijuana during
the March house search. Officer Ehlers’s March 14, 2014 report states: “After speaking
with the occupants of the house it was determined that Steffens . . . [was] knowingly in
possession of the marijuana and grinder.”
