                    IN THE COURT OF APPEALS OF IOWA

                                  No. 12-0977
                              Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL LOMAX,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



       Michael Lomax appeals his convictions for vehicular homicide and four

counts of serious injury by vehicle. AFFIRMED.



       James S. Nelsen of James Nelsen P.L.C., West Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Darrell Mullins, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County

Attorney, for appellee.



       Heard by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.

       Michael Lomax appeals his convictions for vehicular homicide and four

counts of serious injury by vehicle. Lomax asserts the district court erred in

denying his motion to suppress due to the warrantless entry into the hospital

emergency room and the insufficient basis to invoke implied consent. Lomax

further claims the district court erred in denying his motion in arrest of judgment

because the State withheld impeachment evidence that an officer involved in the

case was later charged with possession of a controlled substance. We conclude

the district court properly denied Lomax’s motion to suppress because Lomax

had no expectation of privacy in a hospital emergency room and reasonable

grounds existed to invoke implied consent.         We further conclude the court

properly denied Lomax’s motion in arrest of judgment as the officer’s conduct

was wholly unrelated and immaterial to Lomax’s case. Consequently, we affirm

Lomax’s convictions.

I. Factual and Procedural Background

       On August 28, 2011, at 3:00 a.m., Lomax was involved in a car accident

that resulted in the death of Jennifer Garcia and the serious injury of four of her

passengers.    It was determined through the car’s data retrieval system that

Lomax was driving approximately 100 miles per hour at the time of the accident. 1

The accident occurred at an intersection with a stoplight, and it was later

determined Lomax accelerated through a red light.

1
  Sergeant Randy Bulver, a collision reconstructionist for the Des Moines Police
Department, was able to ascertain that Lomax “was traveling in excess of 100 miles per
hour in the seconds before the crash. When the last recorded documentation was
obtained, it showed that the defendant’s speed was 130 miles per hour and that the
brakes were being applied.”
                                         3


       Officer Colin Boone conducted the initial investigation. Upon arriving at

the scene, Officer Boone observed that Garcia’s SUV was overturned and on

fire, and Lomax’s Dodge Charger was compressed to the passenger

compartment.     Witnesses reported they had seen Lomax’s vehicle driving

erratically at a high rate of speed.2     Officer Boone described the scene as

“chaotic,” with various officers securing the scene, managing witnesses, and

controlling traffic. Lomax appeared to be badly injured and was trapped in his

vehicle until the medics could remove him. Neither the odor of alcohol nor empty

containers were observed in Lomax’s vehicle. Lomax was transported to the

same hospital as two of the other injured people.

       On his way to the hospital, Officer Boone contacted dispatch to request

that the medical examiner be prepared to obtain a blood or urine sample from

Lomax. He was also in contact with Officer Brandon Singleton, who had been

working traffic control near the accident scene. Officer Singleton informed Officer

Boone that he had spoken with Lomax’s relatives. Specifically, Officer Singleton

recalled Lomax’s brother3 stating: “I can only assume that they’ve been out

partying. That’s why I don’t go out with them. They get f***** up and act a fool.”

       Officer Boone entered the hospital trauma center, which he described as

“a big, open bay” divided by curtains. This is an area he routinely enters when

investigating an accident unless asked to step out by hospital staff, when his

presence may impede treatment. Officer Boone discovered Lomax in the left-

2
  Officer Christopher Mock was the officer who interviewed the witnesses, and at the
scene, he reported to Officer Boone that witnesses had seen the Dodge Charger driving
erratically at high rates of speed.
3
  Two of Lomax’s brothers were at the scene of the accident—Marcus Lester and Lonell
Kinchelow. Lester denied making this statement.
                                         4


most area and detected the smell of alcohol, which appeared to be coming from

Lomax or from the area in which he was laying. Lomax’s family later stated they

were not permitted to enter the emergency room.

       A doctor informed Officer Boone that Lomax was not capable of consent.

Consequently, Officer Boone requested that Amy Williamson, a nurse with the

medical examiner, obtain a sample of Lomax’s blood. Williamson also obtained

a urine sample from the catheter that was already in place. It was determined

Lomax’s blood alcohol content was .175.

       Lomax was charged with vehicular homicide, in violation of Iowa Code

section 707.6A(1) (2011), and four counts of serious injury by vehicle, in violation

of Iowa Code section 707.6A(4). Lomax filed a motion to suppress the evidence

of his blood alcohol test. A hearing was held on March 27, 2012, and the district

court denied the motion. On March 28, 2012, a bench trial was held on the

minutes of testimony, as well as the testimony and exhibits offered during the

motion to suppress hearing. The court found Lomax guilty on all counts. A

motion in arrest of judgment was filed asserting that, because Officer Singleton

was arrested for possession of a controlled substance, a new trial should be held

in which Lomax could cross-examine Officer Singleton on his drug use. The

court heard arguments on May 11, 2012, and denied the motion, stating that

even if it did not consider the testimony of Officer Singleton, probable cause and

the statutory requirements for the invocation of implied consent supported the

blood draw. Lomax appeals.
                                         5


II. Standard of Review

       Because Lomax asserts the district court violated his constitutional rights

when denying his motion to suppress and motion in arrest of judgment, we

review the rulings de novo. See State v. Lane, 726 N.W.2d 371, 377 (Iowa

2007). While we are not bound by the district court’s factual determinations, we

may give them deference given the court’s opportunity to observe the witnesses

first-hand. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). To the extent

Lomax’s arguments rely on the interpretation of statutory requirements, we

review the court’s ruling for correction of errors at law. See State v. Palmer, 554

N.W.2d 859, 864 (Iowa 1996).

III. Motion to Suppress

       Lomax asserts three ways in which the district court erred in denying his

motion to suppress: (1) the warrantless entry into the hospital emergency room

resulted in a violation of his rights under the Fourth and Fourteenth Amendments

of the United States Constitution and article 1, sections 8, 9, and 10 of the Iowa

Constitution,4 (2) there was an insufficient basis to invoke implied consent to test

for Lomax’s blood alcohol content, and (3) the court improperly concluded that,

even giving no weight to Officer Singleton’s testimony, evidence still existed to

support the reasonable grounds determination and statutory requirements for the

invocation of implied consent.




4
 Lomax’s arguments in this section rely on the Fourth Amendment to the United States
Constitution.    Consequently, we will only address that claim, given the other
constitutional arguments are waived. See Iowa R. App. P. 6.903(2)(g)(3).
                                           6


       A. Fourth Amendment

       The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures. U.S. Const. amend. IV. We conduct a

two-part test when determining whether a search was unreasonable. First, the

person challenging the warrantless search must have a reasonable expectation

of privacy in the premises searched, both objectively and subjectively. State v.

Lovig, 675 N.W.2d 557, 562–63 (Iowa 2004). If this expectation exists, we must

then determine whether the State unreasonably invaded the protected interest.

Id. at 563.

       Our court has established that a defendant has a reasonable expectation

of privacy with regard to his personal belongings in a hospital.              State v.

Sheppard, 325 N.W.2d 911, 914–16 (Iowa Ct. App. 1982) (“We think there was

sufficient police involvement in the search and seizure of defendant’s clothing

which had been packaged that the police should have first obtained a warrant

before seizing this property.”).    However, our case law has yet to reach the

question of whether an emergency room is an area in which a patient has a

subjective and objective expectation of privacy. 5 The State argues patients have

no reasonable expectation of privacy because it is the hospital staff—not the

patient—who controls the movement of people in and out of the emergency

room. Therefore, the State asserts a warrant is not required for law enforcement
5
  Lomax cites State v. Carter, 267 N.W.2d 385, 386 (Iowa 1978), for the proposition that
when a private citizen engages with the government, the protections of the Fourth
Amendment still apply. In oral argument, Carter was referenced to support the assertion
that people have a reasonable expectation of privacy even in public spaces. While it is
true Fourth Amendment protections apply when law enforcement searches the
defendant’s person or personal belongings, that is not the issue presently before our
court. Rather, the issue is whether a reasonable expectation of privacy exists in a
hospital room, and therefore, Carter is distinguishable.
                                           7


to enter an emergency room or trauma center. Consistent with that position,

Officer Boone testified he regularly enters the emergency room with only the

approval of the attending doctors or hospital staff. However, Lomax argues a

patient has a privacy interest in an emergency room, as anyone who tries to

enter the area must be buzzed in by hospital staff. The State counters that an

expectation of privacy does not arise simply because security measures are

taken by the hospital staff to maintain supervisory control as to who may enter

any given area of the hospital. We agree with the State that, while a patient has

an expectation of privacy in their belongings brought into the emergency room,

no such expectation of privacy exists in the trauma center locale, which is under

the exclusive control of the hospital staff.

       Several other states have reached the same conclusion.                 See

Buchanan v. State, 432 So. 2d 147, 148 (Fla. Dist. Ct. App. 1983) (“Even if

Buchanan had formed a subjective expectation of privacy, it was simply

unreasonable for him to have done so in a busy hospital emergency room where

medical personnel were constantly walking in and out and where he could have

expected to remain only a few hours.”); People v. Torres, 494 N.E.2d 752, 755

(Ill. 1986) (holding the “defendant had no reasonable expectation of privacy in the

hospital emergency room”); State v. Cromb, 185 P.3d 1120, 1126 (Or. Ct. App.

2008) (“[P]revailing social norms do not treat a hospital emergency room, even

curtained areas within it, as space in which privacy rights inhere.”); State v.

Rheaume, 889 A.2d 711, 714 (Vt. 2005) (noting an emergency room “functions

as a freely accessible area over which a patient has no control and where his

privacy is diminished”).
                                        8


      Based on this reasoning, we conclude Lomax had no reasonable

expectation of privacy while in the hospital’s emergency room. Consequently,

Lomax’s Fourth Amendment rights were not violated when Officer Boone entered

the area and detected an odor of alcohol arising from the area in which Lomax

was laying. We therefore affirm the district court’s denial of Lomax’s motion to

suppress on this basis.

      B. Implied Consent

      Iowa Code section 321J.6(1)(b) authorizes an officer to request a blood

test if the officer has reasonable grounds to believe the person was operating a

motor vehicle while intoxicated and if “[t]he person has been involved in a motor

vehicle accident or collision resulting in personal injury or death.” “Reasonable

grounds” means “the facts and circumstances known to the officer at the time

action was required would have warranted a prudent person’s belief that an

offense had been committed.”      State v. Owens, 418 N.W.2d 340, 342 (Iowa

1988). The reasonableness of the suspicion is considered in light of the totality

of the circumstances and “must be viewed through the eyes of a reasonable and

cautious police officer on the scene, guided by his experience and training.”

State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002) (internal citation omitted).

      Several facts support the conclusion Officer Boone had reasonable

grounds to believe Lomax was operating a vehicle while intoxicated. Primarily,

Officer Boone detected a strong odor of alcohol emanating from Lomax in the

emergency room. Furthermore, witnesses at the scene stated they had seen the

vehicle Lomax was driving, a Dodge Charger, traveling erratically at a high rate

of speed. The severity of the accident supported this observation, given Officer
                                            9


Boone’s testimony that, in his experience, accidents of this magnitude only

involve cars traveling very fast. The crash also occurred at 3:00 a.m., a time of

night known to law enforcement to be associated with intoxicated drivers. See

State v. Rosenteil, 473 N.W.2d 59, 62 (Iowa 2000) (observing that the “wee

hours of the weekend” are a time “notorious for drunken driving”), overruled on

other grounds by State v. Cline, 617 N.W.2d 277 (Iowa 2000). The totality of

these circumstances, which include the smell of alcohol on Lomax at the hospital,

the timeframe of the accident, and witnesses’ observations that Lomax was

driving fast and erratically, are consistent with intoxicated driving. Consequently,

Officer Boone had reasonable grounds to conclude Lomax was operating a

vehicle while intoxicated, and the district court properly denied his motion to

suppress.6

       C. Officer Singleton’s Testimony

       Furthermore, the district court did not err in determining it need not rely on

Officer Singleton’s testimony when deciding whether the blood and urine

samples were obtained in compliance with Iowa Code section 321J.6. The only

unique contribution by Officer Singleton to the investigation consisted of an

6
  In his brief, Lomax consistently refers to the fact that Officer Boone called dispatch to
request that a medical examiner be ready to draw Lomax’s blood before Officer Boone
arrived at the hospital. This, Lomax claims, is the time at which the reasonable grounds
determination was made, and at that point in the night, Officer Boone did not have
reasonable grounds to invoke implied consent. However, the statute requires the
reasonable grounds determination to be made at the time action is required. See
Owens, 418 N.W.2d at 342. Here, action was required when Lomax was at the hospital,
given he was grievously injured at the scene and could not provide a blood sample or
otherwise consent to testing. It was at the hospital when Officer Boone detected the
smell of alcohol on Lomax’s person, which, combined with the other information Officer
Boone possessed, gave rise to the reasonable grounds determination. It was only after
this that Nurse Williamson drew a sample of Lomax’s blood and collected the urine
sample.       Consequently, Officer Boone’s conduct complied with the statutory
requirements of Iowa Code section 321J.6.
                                            10


unsubstantiated conclusion by Lomax’s brother that Lomax had been partying.7

It was not a statement that Lomax had in fact been consuming alcohol the night

of the accident—Officer Singleton himself stated, “I believe it was just an

assumption that [the brother] made.”             This did not negate Officer Boone’s

observation of the horrendous damage at the scene, the knowledge that Lomax’s

car was seen traveling erratically at a high rate of speed, or his detection of the

odor of alcohol emanating from Lomax’s person.               Therefore, the reasonable

grounds determination did not hinge on Officer Singleton’s statement to Officer

Boone, and the district court properly denied Lomax’s motion to suppress.

IV. Motion in Arrest of Judgment

       Lomax’s final argument asserts the district court erred in denying his

motion in arrest of judgment.         Lomax claims the State withheld exculpatory

information—the arrest of Officer Singleton for possession of a controlled

substance—which resulted in a Brady violation.

       Brady v. Maryland, 373 U.S. 83, 87 (1963), held that a due process

violation occurs when the prosecution suppresses evidence favorable to the

defendant that is material either to guilt or punishment.            This includes both

directly exculpatory evidence as well as impeachment evidence. United States v.

Bagley, 473 U.S. 667, 676 (1985). To prove a Brady violation, the defendant

must show: (1) the prosecution withheld evidence willfully or inadvertently, (2) the

evidence was favorable to the defense for either its exculpatory or impeachment

value, and (3) the evidence was material. Cornell v. State, 430 N.W.2d 384, 385


7
 Officer Singleton also testified about his activities immediately following the accident as
well as described the scene, but this was corroborated by other evidence and testimony.
                                         11


(Iowa 1988). Evidence is material to the issue of guilt when there is a reasonable

probability its disclosure would have changed the outcome of the proceeding.

State v. Jones, 817 N.W.2d 11, 22 (Iowa 2012).

       Here, Lomax failed to establish Officer Singleton’s arrest was material,

given there is no reasonable probability the disclosure of this information would

have altered the outcome of the case. The district court specifically stated:

       Even considering or giving no weight whatsoever to Officer
       Singleton . . . the Court finds that upon a review of its notes and the
       record in the matter that the evidence given by the other officers,
       including Officer Boone, was sufficient to support the probable
       cause and statutory requirements for the invocation of the implied
       consent law.

       We agree with the district court’s conclusion that, regardless of Officer

Singleton’s contribution to the case, sufficient evidence existed to support both

the reasonable grounds determination as well as the convictions. Therefore, any

impeachment evidence with regard to Officer Singleton would not have altered

the outcome of the proceedings. Moreover, it is not even clear the State had a

duty to disclose this information to Lomax, considering Officer Singleton’s arrest

was unrelated to Lomax’s case. See, e.g., United States v. Rosner, 516 F.2d

269, 280 (2d Cir. 1975) (holding no Brady violation occurred even though the

prosecution failed to disclose an undercover agent’s perjury in an unrelated

case). Consequently, we conclude no Brady violation occurred, and the district

court properly denied Lomax’s motion in arrest of judgment.

       Having considered Lomax’s arguments, we affirm the opinion of the

district court.

       AFFIRMED.
