                   IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1684
                                  Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY EDWARD RUNYON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mills County, James S. Heckerman

(motion to suppress) and Timothy O’Grady (trial), Judges.



      Timothy Runyon appeals his conviction of operating while intoxicated,

second offense, contending the district court erred in denying his motion to

suppress evidence. AFFIRMED.




      Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       Upon our de novo review of the entire record, we make the following factual

findings. On July 30, 2017, at roughly 9:30 p.m., Deputy Joshua England of the

Mills County Sheriff’s Department was on routine patrol when he observed three

individuals riding on two four-wheelers at a crop elevator in Hastings. At this time,

the elevator, which is private property, was closed for business.1 England made

contact with these individuals and, while engaging with them, observed Timothy

Runyon drive from behind one of the elevator’s buildings in a Chevy Tracker.

Runyon initially “came towards” England, proceeding on the direct path out of the

elevator, but then diverted from that avenue, “cut[ting] across” and leaving the area

in a different direction in between two buildings. It appeared to England that

Runyon was trying to avoid him. This “seemed kind of odd” to England. England

decided “to stop and find out what [Runyon] was doing back in that area” and “what

he was doing at a closed business at 9:30 at night.” England conducted a traffic

stop of Runyon’s vehicle, upon which England smelled a strong odor of alcohol

coming from Runyon and noticed he had bloodshot, watery eyes. Runyon was

ultimately charged by trial information with operating while intoxicated (OWI),

second offense.

       Runyon moved to suppress the evidence obtained as a result of the traffic

stop, generally arguing England lacked reasonable suspicion to believe criminal



1
  England has been dispatched to the elevator area on previous occasions relative to
criminal activities, including trespassing on the nearby railroad, a burglary, and stolen
property. There is also a private path, although commonly used by the public, near the
elevator leading to a nearby river where England has encountered individuals engaged in
drug activity. The sheriff’s department has received calls for service regarding use of the
private path by the public.
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activity was afoot.    Following a hearing, the district court concluded England

conducted a “proper investigatory stop based on reasonable suspicion that a crime

may have been occurring,” given the previous criminal activities in the area

coupled with the fact that Runyon “was behind a closed, private business, at

around 9:30 p.m., with no apparent legitimate reason.” The matter proceeded to

a bench trial. Following the State’s case-in-chief, Runyon moved for judgment of

acquittal, arguing England lacked reasonable suspicion to conduct a traffic stop. 2

The court denied the motion. In closing argument, defense counsel simply argued

Runyon could not be convicted because the traffic stop amounted to an

unconstitutional seizure.       In its written verdict, the court addressed the

“suppression issue” and essentially affirmed the initial ruling on Runyon’s motion

to suppress. The court found Runyon guilty as charged.3

       Runyon now appeals, contending the district court erred in denying his

motion to suppress evidence.           He specifically argues England lacked the

reasonable suspicion necessary to conduct an investigatory stop of his vehicle.

Our review is de novo. See State v. Smith, 919 N.W.2d 1, 4 (Iowa 2018). “[W]e

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

record.” Id. (alteration in original) (quoting State v. White, 887 N.W.2d 172, 175

(Iowa 2016)). In evaluating the totality of the circumstances, we are entitled to

consideration of evidence introduced at both the suppression hearing and trial.



2
  We note this is generally an improper basis upon which to move for or grant judgment of
acquittal. See Iowa R. Crim. P. 2.19(8)(a) (requiring entry of judgment of acquittal “if the
evidence is insufficient to sustain a conviction”). Such an argument is properly made in a
pretrial motion to suppress, as was previously made in this case. See Iowa R. Crim. P.
2.11(2)(c).
3
  Runyon stipulated to being previously convicted of OWI.
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See State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015). “Each case must be

evaluated in light of its unique circumstances.” State v. Coffman, 914 N.W.2d 240,

244 (Iowa 2018) (quoting State v. Kurth, 813 N.W.2d 270, 272 (Iowa 2012)). We

give deference to the district court’s findings of fact, but we are not bound by them.

State v. Storm, 898 N.W.2d 140, 144 (Iowa 2017).

       Stopping an automobile and detaining its occupants amounts to a seizure

within the meaning of the state and federal constitutions. See Delaware v. Prouse,

440 U.S. 648, 653 (1979); State v. Coleman, 890 N.W.2d 284, 288 (Iowa 2017);

State v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013). As such, a traffic stop must be

reasonable under the circumstances. See Whren v. United States, 517 U.S. 806,

810 (1996); State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). “The principal

function of an investigatory stop is to resolve the ambiguity as to whether criminal

activity is afoot.” State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010) (quoting State

v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993)). The dispositive inquiry in this

case is as follows: “would the facts available to the officer at the moment of the

seizure . . . ‘warrant a man [or woman] of reasonable caution in the belief’ that the

action taken was appropriate?”      Kreps, 650 N.W.2d at 641 (quoting State v.

Heminover, 619 N.W.2d 353, 357 (Iowa 2000)); accord Terry v. Ohio, 392 U.S. 1,

21 (1968).

       Upon our de novo review of the record, we answer that question in the

affirmative. Although we question the State’s characterization of the area as one

of “high crime,” England was familiar with some criminal activity occurring in the

area in the past. At a somewhat late hour when it was dark outside, England

observed Runyon emerge from the rear area of a closed business on private
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property. Although Runyon initially proceeded in England’s direction, he changed

course from the direct path out of the property and left the area in a different

direction. Under the circumstances, we conclude England’s decision to conduct

an investigatory stop of Runyon’s vehicle was reasonable, which is all that is

constitutionally required. See U.S. Const. amend. IV; Iowa Const. art. I, § 8.

      We affirm the denial of Runyon’s motion to suppress and his conviction of

OWI, second offense.

      AFFIRMED.
