                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1089 / 12-1924
                             Filed February 19, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LAURA E. LOOTS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Des Moines County, Michael G.

Dieterich, District Associate Judge.



      Laura Loots appeals the district court ruling denying her motion to

suppress evidence discovered as a result of a traffic stop. REVERSED AND

REMANDED.



      William Monroe, Burlington, for appellant.

      Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney

General, Patrick C. Jackson, County Attorney, and Justin Stonebrook, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
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BOWER, J.

       Laura Loots appeals the district court ruling denying her motion to

suppress evidence discovered as a result of a traffic stop. Loots claims the

record fails to show there was reasonable suspicion she was committing a crime

when stopped for violating a local noise ordinance.       We find the ordinance

requires proof of two separate elements: that the sound be heard fifty feet from

the motor vehicle, and create a noise disturbance. The record does not contain

facts upon which we could objectively conclude there was a noise disturbance.

Accordingly, there was no justification for the stop. We reverse and remand for a

new trial.

I.     Background Facts and Proceedings

       Late in the evening of April 28, 2012, Burlington Police Officer Ryan Smith

(Smith) was parked in a parking lot talking with two reserve sheriff deputies when

he heard a loud sound approach.         Identifying the sound as coming from a

vehicle, later found to be operated by defendant Laura Loots (Loots), Smith

conducted a traffic stop for violation of a local noise ordinance. Upon reaching

Loots’s vehicle, Smith smelled “an intoxicating beverage and marijuana” coming

from inside. Marijuana was discovered as the result of a search of the vehicle.

Loots was given a citation for violating the noise ordinance and later charged with

possession of a controlled substance.

       Loots filed a motion to suppress claiming the vehicle stop was an

unconstitutional seizure.   During the suppression hearing, Smith testified he
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stopped Loots because he could hear the music coming from her car from more

than fifty feet away.1 No other reason for the stop was given. Loots’s attorney

argued the Burlington City Code of Ordinances prohibits noise disturbances

heard from more than fifty feet from the vehicle and further defines a noise

disturbance as, in relevant part, a sound that annoys or disturbs a reasonable

person of normal sensitivities. Arguing the officers had not testified as to any

annoyance or disturbance, but only that the sound could be heard from more

than fifty feet away, Loots’s attorney asked the court to suppress the evidence

located during the search.        In response, the district court replied, “Well, the

officers testified they could hear this noise more than fifty feet away.             I’m

assuming that it annoyed the officer when he made the stop.” Overruling the

motion to suppress, the court also pointed out Loots did not deny the officers

allegation.

         Loots waived her right to a jury trial and was convicted in a trial on the

minutes of testimony. She was sentenced to thirty days in jail with all but two

days suspended, a $250 fine, surcharge, court costs and a 180-day driver’s

license revocation.

II.      Standard of Review

         Constitutional challenges are reviewed de novo.          State v. Kern, 831

N.W.2d 149, 164 (Iowa 2013). We independently evaluate the totality of the




1
    Reserve Deputy Benjamin Nahorny also testified during the suppression hearing.
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circumstances based upon the entire record. Id. Deference is given to findings

of fact made by the district court, but we are not bound by them. State v. Turner,

630 N.W.2d 601, 606 (Iowa 2001).

III.   Discussion

       Loots claims the district court should have suppressed the evidence found

as a result of the search of her car because the vehicle stop was

unconstitutional.   More specifically, she faults the district court for assuming

Smith had reasonable suspicion to conduct the stop.

       The Fourth Amendment protects the right to be free from unreasonable

searches and seizures.2 U.S. Const. amend. IV. The amendment has been

made applicable to the states through the Fourteenth Amendment of the United

States Constitution. See State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000).

Evidence obtained in violation of the Fourth Amendment is inadmissible.             Id.

Police stops of a vehicle are seizures which must not be unreasonable under the

circumstances. Id.

       Under Terry v. Ohio, 392 U.S. 1, 21 (1968) an officer may stop an

individual based upon less than probable cause provided the officer can “point to

specific and articulable facts, which taken together with rational inferences from

those facts, reasonably warrant that intrusion.”       We are to use an objective

standard, considering whether a “man of reasonable caution” would believe the

action taken was appropriate, when considering the propriety of a stop. Id. at


2
 Loots also claims the seizure was illegal under the Iowa Constitution. Because she
has not proposed a distinct interpretation for our state constitution as opposed to the
Federal Constitution, we will apply law developed interpreting the United States
Constitution. See State v. Tyler, 830 N.W.2d 288, 229 (Iowa 2013).
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21–22.    The State has the burden of proving, by a preponderance of the

evidence, that probable cause existed to stop the vehicle. State v. Louwrens,

792 N.W.2d 649, 651–52 (Iowa 2010).

       Smith conducted the stop under the belief Loots was violating the

Burlington noise control ordinance. The ordinance makes it illegal to “create a

noise disturbance fifty (50) feet from the device, when operated in or on a motor

vehicle on a public right-of-way . . . .” Burlington, Iowa Code of Ordinances

§ 58.10(1)(B) (2012). A noise disturbance is further defined as “any sound of

such character, intensity, and duration which . . . annoys or disturbs a reasonable

person of normal sensitivities. Burlington, Iowa Code of Ordinances § 58.04(4).

A plain reading of the ordinance requires proof of both a noise disturbance and

the noise disturbance be heard fifty feet from the vehicle. Only noise that meets

this two part definition is considered illegal; not all noise heard fifty feet from the

vehicle would be considered a violation of the ordinance. The question is not,

however, whether Loots was actually violating the ordinance, but whether the

facts, known to Smith at the time of the stop, could lead a person of reasonable

caution to believe Loots was violating the ordinance.          See Heminover, 619

N.W.2d at 361.     We examine the totality of the circumstances to determine

whether “the record discloses articulable objective facts” available to Smith at the

time to justify the stop. State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976).

       Constrained as we are by the record, we are unable to locate facts that

would allow Smith to conclude the noise was both audible from fifty feet from the

vehicle and would annoy or disturb a reasonable person of normal sensitivities.
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The only evidence provided was Smith was able to hear the sound from fifty feet

away; there was no evidence the sound was annoying or disturbing to a

reasonable person of normal sensitivities. We disagree with the district court that

just because Smith stopped the car shows he was annoyed or disturbed by the

sound. Smith justified the stop only by stating the sound could be heard from

more than fifty feet.

       Additionally, assuming Smith believed the only requirement for violation of

the ordinance was sound being heard from such a distance, such an assumption

would be a mistake of law.       Mistakes of law cannot provide justification to

conduct a stop. See Louwrens, 792 N.W.2d at 652–54. In State v. Tyler, a

police officer stopped a vehicle when the officer observed both the front and rear

license plates were covered by tinting. Tyler, 830 N.W.2d at 290–91. In a police

report, the officer explained he stopped the vehicle because the plate was

covered with a tinted material. Id. at 294. Our supreme noted Iowa law does not

prohibit tinted covers, but rather any frame or cover which prevents full view of all

numerals and letters on the plate. Id. The tinting on the plate did not prevent a

full view of all numerals and letters. Id. The officer’s mistaken understanding of

law, when conducting the stop, invalidated the stop and all evidence discovered

from it. Id. at 294–95.

       We are currently presented with a similar situation. The record indicates

Smith believed sound audible from a distance of greater than fifty feet created a

violation of the ordinance, when in fact the sound must also have created a noise

disturbance.    The State has failed to provide any evidence the sound was
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sufficient to constitute a noise disturbance. Accordingly, the stop was improper

and the evidence seized as a result should have been suppressed. We reverse

and remand to the district court for a new trial.

       REVERSED AND REMANDED.
