                   IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1678
                             Filed November 12, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYAN JAMES ELDER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Mahaska County, Rose Anne

Mefford, Judge.



      A defendant convicted of operating while intoxicated appeals the ruling on

his motion to suppress evidence. REVERSED AND REMANDED.



      Grant C. Gangestad of Gourley, Rehkemper & Lindholm, P.L.C., West

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Jean Pettinger,

Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.

      Bryan Elder appeals his conviction for operating while intoxicated, second

offense, challenging the district court’s denial of his motion to suppress. He

alleges the police stop of his vehicle infringed his constitutional right against

unreasonable search and seizure and contends police conduct at the station

violated his rights under Iowa Code section 804.20 (2013). Because the vehicle

stop was not justified by reasonable suspicion or by the officer’s community

caretaking function, we reverse the suppression ruling.

I.    Background Facts and Proceedings

      As part of his routine patrol in the early morning hours of December 14,

2013, police officer Blaine Shutts performed “building checks” at various

locations in Oskaloosa. At about 1:45 a.m., the officer drove by a car dealership

and the VFW Hall, a local bar. In VFW parking lot he saw two vehicles, “one

facing northbound, one facing southbound.” He recalled the vehicles’ lights were

on, but he did not see anyone in the vehicles.

      The officer proceeded to do his “building check” at a nearby farm

implement store and then drove back by the VFW parking lot. He saw the lights

of one of the vehicles, a black Hyundai, were now turned off and he saw

“movement inside the vehicle with moisture on the windows.” After seeing the

movement, the officer “circled back around and got in behind the car, saw the

vehicle was running.” He activated his overhead lights and pulled in behind the

Hyundai.
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       The officer walked up to the parked car and found Elder in the driver’s

seat and a female passenger. The occupants told the officer they were “just

talking” while they waited for “her vehicle to warm up.” The officer noticed the

smell of alcoholic beverages from inside the car. Elder told the office he had

consumed five or six beers.     During his investigation, the officer allowed the

passenger to enter the VFW, which was still open, to use the restroom.

       The officer asked Elder to submit to field sobriety tests and a preliminary

breath test. Based on the results of those tests, Officer Shutts placed Elder

under arrest and transported him to the Mahaska County jail where the officer

invoked implied consent.    A DataMaster test measured Elder’s blood alcohol

level at .143.

       The State filed a trial information charging Elder with operating while

intoxicated, second offense, an aggravated misdemeanor, in violation of Iowa

Code section 321J.2. Elder filed a motion to suppress evidence obtained as a

result of the stop, citing the Fourth Amendment of the United States Constitution

and Article I, Section 8 of the Iowa Constitution.      Elder also challenged the

admission of the DataMaster test results under section 804.20 based on

statements the officer made to him at the jail. The district court held a hearing on

the motion to suppress; Officer Shutts was the sole witness.

       At the suppression hearing, the State’s only justification for the stop was

the officer’s community caretaking function. Both in a written brief and an oral

closing argument, the prosecutor asserted the officer “had a duty as a community

caretaker to investigate this situation.” The prosecutor argued the officer had
                                           4



probable cause to investigate only after smelling alcohol on the defendant and

hearing his admission to drinking five to six beers.      The defense argued the

officer lacked reasonable suspicion to “stop” Elder’s vehicle and “[n]o evidence

was presented to show a factual basis for the officer’s belief that the driver was in

need of assistance.”

       The district court denied Elder’s motion to suppress. The written ruling

described the officer’s stop as follows:

       Here, Officer Shutts, while assigned to patrol a specific non-
       residential area of the community for evidence of burglaries, etc.,
       immediately noted the presence of the defendant’s vehicle, motor
       running and lights on, with an apparent absence of occupants, at
       1:45 in the morning, next to another apparently empty running
       vehicle. Officer Shutts passed by and then returned to the
       suspicious vehicle and this time observed occupants trying to duck
       under the door panel at his approach. Officer Shutts was unsure
       what was happening in the vehicle and decided to approach to
       investigate.

       The court determined from the totality of the circumstances that the officer

had reasonable suspicion to conduct an investigatory stop.                  As key

circumstances, the court listed:

       the time of night, 1:45 a.m.; the location, a non-residential area of
       the city patrolled nightly by the city police department for evidence
       of burglaries, etc.; the location of the defendant at the farthest edge
       of the parking area from the VFW, while the building lights are out;
       and the furtive action taken by the occupants of the vehicle in
       attempting to duck below the door panel when Officer Shutts made
       his second approach.

       The court did not address the community caretaking justification.         The

court also rejected Elder’s arguments under section 804.20.
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       Elder was found guilty following a trial on the minutes of evidence. The

court entered judgment and sentenced Elder to an indeterminate two-year term,

suspending all but seven days. Elder now appeals.

II.    Scope and Standards of Review

       We perform a de novo review of the suppression ruling to the extent that it

raises the constitutional right to be free from unreasonable searches and

seizures.   State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). In doing so, we

independently evaluate the totality of the circumstances found in the suppression

and trial record. Id.

       If we were to reach the portion of the suppression ruling based on section

804.20, our review would be for errors at law. See State v. Walker, 804 N.W.2d

284, 289 (Iowa 2011).

III.   Analysis of Constitutional Suppress Issue

       It is undisputed that when Officer Shutts activated his lights and pulled in

behind the Hyundai parked in the VFW lot, he executed a traffic stop, triggering

Elder’s protections under the Fourth Amendment and article I, section 8. 1 On

appeal, the State argues the officer had reasonable suspicion to seize Elder’s

vehicle and, alternatively, the officer’s actions constituted “legitimate community

caretaking activity.” Neither argument is supported by the suppression or trial

record.



1
  Elder cites to both constitutional provisions but does not argue we should interpret the
state constitution differently. Accordingly, for purposes of our analysis, we assume the
legal principles governing the parallel provisions are the same. See State v. McNeal,
867 N.W.2d 91, 99 n.1 (Iowa 2015).
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       A.     Reasonable Suspicion

       “Reasonable suspicion to stop a vehicle for investigative purposes exists

when articulable facts and all the circumstances confronting the officer at the

time give rise to a reasonable belief that criminal activity may be afoot.” State v.

McIver, 858 N.W.2d 699, 702 (Iowa 2015).          An investigatory stop based on

reasonable suspicion is a well-established exception to the search warrant

requirement. State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010) (citing Terry v.

Ohio, 392 U .S. 1, 21 (1968)). In deciding if the officer had reasonable suspicion,

it is important to consider the circumstances collectively. McIver, 858 N.W.2d at

702.

       As the district court correctly noted, it was relevant that the stop occurred

at 1:45 a.m., just around the time that bars were closing. See id. But the early

morning hour does not alone support reasonable suspicion. See id.

       The court next cited the location of the stop, describing a business parking

lot where the police patrolled nightly “for evidence of burglaries.” The court also

noted the VFW building lights were “out”—a finding not supported by the record.

Officer Shutts testified there was a light, turned on, on the side of the building at

the time of the stop and the sign out front was still on. The officer also testified

the doors of the VFW building were unlocked and “[t]here were people still there.”

He did not know what time the VFW closed that night, and testified “apparently” it

was still open to the public at the time of the stop. The officer testified other

vehicles were parked at the VFW and Elder’s car was not parked behind the

building or concealed in any way.
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      The officer also addressed the issue of the routine patrol for evidence of

burglaries; he acknowledged he did not have any reports of burglaries in that

vicinity that night nor did he see any evidence of a possible burglary. This was

not a case like State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993), where

reasonable suspicion arose from the defendant’s action of pulling out from the

area of a closed business that had been frequently burgled.

      The officer did not articulate why the presence of the two cars, one of

which had its lights on the whole time, gave rise to a reasonable belief that

criminal activity was afoot.    He agreed nothing about the moisture on the

windows of Elder’s car indicated somebody was doing something wrong inside.

      In its suppression ruling, the court relied in part on the “furtive action taken

by the occupants of the vehicle in attempting to duck below the door panel when

Officer Shutts made his second approach.” The ruling overplays the significance

of the movement seen by the officer, who testified he did not know if Elder

ducked in response to seeing the patrol car or if he was just reaching down for

something on the floor. The officer agreed there was “nothing criminal about

moving around in a car.” Our cases have identified “furtive movement” as a

viable consideration in an officer’s decision whether to stop a vehicle. See State

v. Haviland, 532 N.W.2d 767, 769 (Iowa 1995) (discussing evasive movement of

driver in reaction to seeing another private citizen). In this case, the suppression

record did not support the presumption that the movement was an attempt to

evade police attention.
                                          8



       Ultimately, under cross-examination, the officer agreed he had a “hunch”

something might be going on in Elder’s car, but “did not know if they’d done

anything criminal. I was just checking on them.” Our case law makes clear: “A

mere hunch, unparticularized suspicion, or curiosity will not justify an

investigatory stop.” Vance, 790 N.W.2d at 781. The evidence of reasonable

suspicion was so weak in this suppression proceeding that the trial prosecutor

did not even pursue that basis for upholding the stop. On appeal, we conclude

the State did not show by a preponderance of the evidence that a reasonable

suspicion of criminal activity arose from the facts available to Officer Shutts.

Accordingly, the reasonable-suspicion exception to the warrant requirement

cannot support his seizure of Elder’s vehicle.

       B.      Community Caretaking

       We now turn to the State’s argument that Officer Shutt’s seizure of Elder’s

car was justified under the community-caretaking exception to the warrant

requirement.    The United States Supreme Court recognized this exception

because local police officers “frequently investigate vehicle accidents in which

there is no claim of criminal liability and engage in what, for want of a better term,

may be described as community caretaking functions, totally divorced from the

detection, investigation, or acquisition of evidence relating to the violation of a

criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973).

       Community caretaking cases follow a three-step analysis.              State v.

Crawford, 659 N.W.2d 537, 543 (Iowa 2003). Initially, we ask whether a seizure
                                          9



occurred within the meaning of the Fourth Amendment. If so, we inquire whether

the police were conducting “bona fide community caretaker activity.” And if so,

we ask whether the needs and interests of the public in that activity outweigh the

intrusion upon the privacy of the citizen. Bona fide community caretaker activity

can fall into three categories: emergency aid, impoundment and inventory, and

the public servant exceptions. See State v. Kurth, 813 N.W.2d 270, 277 (Iowa

2012). Our supreme court has explained the “narrow distinction” between the

first and third doctrines:

       Under the emergency aid doctrine, the officer has an immediate,
       reasonable belief that a serious, dangerous event is occurring. . . .
       [I]n contrast, the officer in a public servant situation might or might
       not believe that there is a difficulty requiring his general assistance.
       For example, an officer assists a motorist with a flat tire under the
       public servant doctrine, but an officer providing first aid to a person
       slumped over the steering wheel with a bleeding gash on his head
       acts pursuant to the emergency aid doctrine.

Crawford, 659 N.W.2d at 541-42 (quoting Mary E. Naumann, The Community

Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J. Crim.

L. 325, 330–41 (1999)).

       In this case, Officer Shutts testified he did not see any damage to either

vehicle, did not see the driver slumped over the steering wheel, did not see any

blood, and did not believe the occupants were injured. Accordingly, the State

appears limited to the public servant situation, where the officer believes a

motorist might be having “a difficulty requiring his general assistance.”

       The State argues Officer Shutts was engaged in bona fide community

caretaking activity when “he saw two cars parked in a relatively-deserted area
                                        10



late on a December night when temperatures were below freezing, and the lights

of one of the cars were first on, then off, and then on again.” The State contends

these circumstances suggested the possibility that one of the cars was having

mechanical difficulties and needed assistance. The State’s contention is belied

by the officer’s testimony. He did not testify the area was relatively deserted;

rather he recalled other vehicles being present in the parking lot. He testified

Elder’s vehicle did not appear to be disabled, did not have any flat tires, did not

have its flashers on, and the engine was running. The situation did not suggest

mechanical trouble to the officer; rather he testified he was motivated to make

the stop because he saw the occupants “duck underneath the door panel, like

they saw me.”

       Even if the officer was acting as a bona fide public servant in checking

whether Elder needed assistance, the detention of Elder, the passenger, and the

vehicle “exceeded the scope of reasonably necessary community caretaking

activity.” See Kurth, 813 N.W.2d at 278. In Kurth, the court decided it was not

necessary for the officer to block in an already parked vehicle, when all the

officer “needed to do was to park next to him and approach him.” Id. (noting any

purported community care-taking function could have been accomplished

through a consensual encounter rather than an investigatory stop).             The

community-caretaker exception to the warrant requirement does not support the

officer’s seizure of Elder’s vehicle.

       Because we order the exclusion of all evidence of Elder’s intoxication

based on the improper stop, we do not need to address the suppression issue
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involving his rights under section 804.20. We reverse and remand for further

proceedings consistent with this opinion.

      REVERSED AND REMANDED.
