                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0250
                           Filed December 18, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALEXANDER WILLIAM BERTRAND,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt

(suppression hearing) and Carol L. Coppola (trial and sentencing), District

Associate Judges.



      Alexander Bertrand appeals his conviction for operating while intoxicated.

AFFIRMED.

      Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

       Alexander Bertrand appeals his conviction for operating while intoxicated

(OWI), first offense, challenging the denial of his motion to suppress. He maintains

his constitutional right to be free from unreasonable searches and seizures was

violated because there was no probable cause or reasonable suspicion for the

traffic stop. On our de novo review of the facts here, we find there was reasonable

suspicion justifying the traffic stop.

I.     Facts and Prior Proceedings.

       At about 1:50 in the morning, Des Moines Police Officer Jeremy Engle

encountered Bertrand’s car travelling in the left-hand northbound lane of East 14th

Street. He noticed the car “was driving very slow” and “was weaving back and

forth within his lane.” Officer Engle followed the car for about ten blocks recording

it with his dashboard video camera. The officer determined the car was going

about 18 miles per hour in a 35-mile-per-hour speed zone. Several vehicles

passed Bertrand’s car in the right-hand lane. When passed by a semi-truck,

Bertrand’s car “almost swerves into the semi and then overcorrects to the left.”

The car comes close to the center line a couple of times and touches, but does not

cross, the centerline one time. Considering the car’s slow speed, its weaving, and

the time of day (about the time when the bars close), Officer Engle thought the

driver of the car was either impaired or had a medical condition. The officer began

a traffic stop of the car. The officer’s investigation led to Bertrand’s arrest for OWI.

       After being charged with first-offense OWI, Bertrand moved to suppress “the

fruits of the unlawful traffic stop” arguing Officer Engle lacked reasonable suspicion

or probable cause to stop Bertrand’s car. After a hearing, the district associate
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court overruled the motion under both probable cause and reasonable suspicion

analyses. In its reasonable suspicion analysis, the court determined:

               The actions of Officer Engle in stopping [Bertrand]’s vehicle is
       justified in light of a review of a totality of the circumstances. In this
       case, [Bertrand] was driving 18 M.P.H. in a 35 M.P.H. zone.
       [Bertrand]’s vehicle continually weaved within its lane of travel for 10
       blocks. During the continual weaving, [Bertrand] drove on the double
       yellow line divider and on the broken white lane divider. Considering
       the totality of the circumstances, those observations justified Officer
       Engle’s belief that the driver of the vehicle was impaired.

Bertrand then stipulated to trial on the minutes of testimony and was found guilty

of first-offense OWI. Bertrand appeals. He maintains there was no probable cause

or reasonable suspicion to justify the traffic stop.

II.    Standard of Review.

       Bertrand argues the traffic stop violated both his state and federal

constitutional rights to be free from unreasonable search and seizure. See U.S.

Const. amend. IV; Iowa Const. art. I, § 8. Because he raises constitutional claims,

we review it de novo. See State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013). De

novo review entails an “independent evaluation of the totality of the circumstances

as shown by the entire record.” Id. (quoting State v. Pals, 805 N.W.2d 767, 771

(Iowa 2011)). While we give deference to the district court’s factual findings, we

are not bound by them. Id.

III.   Analysis.

       The Fourth Amendment and article I, section 8 both prohibit law

enforcement from conducting unreasonable searches and seizures. Id. A traffic

stop is a seizure and is unreasonable unless the State shows it was supported by

probable cause or reasonable suspicion. Id. at 292-93. “If the State fails to carry
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its burden, all evidence obtained from the investigatory stop must be suppressed.”

State v. Vance, 790 N.W.2d 775, 781 (Iowa 2010). The State argues both probable

cause and reasonable suspicion support the stop here. Because we find there

was reasonable suspicion justifying the traffic stop, we need not discuss the

parties’ probable cause arguments.

          “[R]easonable suspicion of a crime allows a peace officer to stop and briefly

detain a person to conduct a further investigation.” State v. McIver, 858 N.W.2d

699, 702 (Iowa 2015). “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.”     Id.   “[W]e do not evaluate reasonable suspicion based on each

circumstance individually, but determine the existence of reasonable suspicion by

considering all the circumstances together.”         Id.   Put another way, “Whether

reasonable suspicion exists for an investigatory stop must be determined in light

of the totality of the circumstances confronting the officer, including all information

available to the officer at the time the officer makes the decision to stop the

vehicle.” State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004).

          When there is a challenge based on reasonable suspicion, “the State must

show by a preponderance of the evidence that the stopping officer had specific

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

facts, to reasonably believe criminal activity may have occurred. Mere suspicion,

curiosity, or hunch of criminal activity is not enough.” Id. (citations omitted). When

a traffic stop is not justified, “all evidence flowing from the stop is inadmissible.” Id.

at 206.
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       Bertrand argues “Officer Engle’s observations of slow speed and weaving

within a single lane do not constitute reasonable suspicion to believe Bertrand was

driving while impaired.” To be sure, “The mere observation of a car being operated

at a slow rate of speed would not warrant a person of reasonable caution to believe

that criminal activity was occurring or about to occur.” State v. Wiese, 525 N.W.2d

412, 416 (Iowa 1994), overruled on other grounds by State v. Cline, 617 N.W.2d

277, 281 (Iowa 2000).      And weaving within a lane of travel “alone does not

necessarily support a reasonable suspicion to stop a vehicle, but adds to the

totality of the circumstances.”    McIver, 858 N.W.2d at 703.        Additionally, our

supreme court in Tague determined an officer did not have reasonable suspicion

to stop a vehicle when the tires of the vehicle “briefly crossed the left edge line” of

the road and then returned to the roadway one time. Tague, 676 N.W.2d at 200.

Furthermore, “The early morning hour and the slow driving do not alone provide a

predicate for [a] stop.” State v. Duitscher, Nos. 19999-437, 9-694, 98-1174, 1999

WL 1255721, at *2 (Iowa Ct. App. Dec. 27, 1999). Taken separately, each of the

observations made by Officer Engle may not have been enough to support his stop

of Bertrand, but we must look to the totality of the circumstances surrounding the

traffic stop. See McIver, 858 N.W.2d at 702 (“[W]e do not evaluate reasonable

suspicion based on each circumstance individually, but determine the existence of

reasonable suspicion by considering all the circumstances together.”); State v.

Otto, 566 N.W.2d 509, 511 (Iowa 1997) (“[T]he facts and circumstances of each

case dictate whether or not probable cause exists to justify stopping a vehicle for

investigation.”). Weaving back and forth within the driver’s own lane, time of day,

and slow driving are all factors that may be considered in determining whether the
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officer had reasonable cause to stop the car. See State v. Jones, No. 03-0913,

2003 WL 23008803, at *2 (Iowa Ct. App. Dec. 24, 2003).

       We have reviewed all of the evidence presented at the suppression hearing,

including the dashcam video from Officer Engle’s patrol car. The officer observed

Bertrand’s car travelling at roughly half the posted speed limit and weaving within

its lane. The video validates the officer’s testimony. Bertrand’s car, travelling in

the left lane, is discernably slower than the rest of the traffic that passes him in the

right lane. The car constantly weaves within its lane while it travels the some seven

blocks depicted on the video. The car appears to touch the center line once. The

car almost swerves into a passing semi. All of this took place in the early morning

hours—about the time bars close.

       On our de novo review of the evidence, we conclude the officer had a

reasonable belief criminal activity may have been occurring. This case involves

much more than a person just driving slowly or just weaving within their own lane.

The totality of the circumstances, including the officer’s observations of Bertrand’s

driving and the time of the morning, show there were “specific and articulable facts,

which taken together with rational inferences from those facts,” would lead a

person “to reasonably believe criminal activity may have occurred.” See Tague,

676 N.W.2d at 204. So Officer Engle was constitutionally justified in making the

traffic stop.

       The circumstances presented here are in line with other cases in which we

have found there was a reasonable suspicion justifying a traffic stop. See, e.g.,

State v. Keith, No. 17-1044, 2018 WL 2174089, at *2 (Iowa Ct. App. Apr. 4, 2018)

(noting vehicle touched the center line, then the fog line twice at about 2:00 a.m.);
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State v. Torsky, No. 15-0314, 2016 WL 2745908, at *2 (Iowa Ct. App. May 11,

2016) (finding at about 2:30 a.m., defendant swerved towards the center line and

crossed the fog line several times); State v. Ballangee, No. 11-1464, 2012 WL

2407693, at *3 (Iowa Ct. App. June 27, 2012) (noting defendant had crossed the

center line twice “late on a Friday evening”); State v. Rohrer, No. 10-0830, 2011

WL 646905, at *2 (Iowa Ct. App. Feb. 23, 2011) (finding defendant drove on the

center and fog lines “a couple times each” at about 2:00 a.m.); State v. Byrne, No.

09-0254, 2009 WL 3379106, at *3 (Iowa Ct. App. Oct. 21, 2009) (noting at about

1:00 a.m., defendant swerved back and forth, nearly hitting the curb and then

crossing the center line twice); State v. Fischels-Wordehoff, No. 05-0762, 2006 WL

782447, at *3 (Iowa Ct. App. Mar. 29, 2006) (finding defendant drifted from side to

side in the lane and went on the white shoulder marker “late at night”); State v.

Quastad, No. 03-1550, 2004 WL 1396292, at *2 (Iowa Ct. App. June 23, 2004)

(“[D]efendant was weaving both within and outside his lane at a time of day when

officers might expect people to be driving home from bars.”); Jones, 2003 WL

23008803, at *2 (defendant weaving back and forth in own lane, slow driving, and

midnight hour).

       Because we have determined the traffic stop was proper based on

reasonable suspicion, we do not separately address probable cause. The district

associate court properly overruled Bertrand’s motion to suppress. We affirm

Bertrand’s conviction for first-offense OWI.

       AFFIRMED.
