                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-007 / 12-1897
                            Filed February 19, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALEJANDRO SOILO MANZANARES,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Richard D.

Stochl, Judge.



      A defendant appeals a district court’s denial of a motion to suppress.

AFFIRMED.



      Ryan Mitchell of Orsborn, Milani, Mitchell & Goedken, L.L.P., Ottumwa, for

appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Brad Waltz, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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MULLINS, J.

          Alejandro Manzanares appeals from the district court’s denial of a motion

to suppress. He argues Officer Zubak did not have reasonable suspicion of a

crime to execute an investigatory vehicle stop. We affirm the district court’s

denial.

I.        Background Facts and Proceedings

          On March 16, 2011, Investigator Ryan Bellis of the Tri-County Drug Task

Force gave information to Waterloo Police Officer Joseph Zubak that a light-

skinned man from Minnesota would be trafficking drugs at Flirt’s Gentleman’s

Club in downtown Waterloo that day. Officer Zubak surveyed the area around

Flirt’s that evening and saw a white Lincoln-Mercury Cougar with Minnesota

license plates parked close to Flirt’s. He did not see any other vehicle in Flirt’s

parking lot with Minnesota license plates.          Through the use of his in-car

computer, Officer Zubak determined that the registered owner of the vehicle with

that license plate was Alejandro Manzanares.

          Officer Zubak then left Flirt’s and returned approximately four hours later,

at 12:45 a.m. on March 17, 2011.           He watched the same white Minnesota

Cougar pull into the Flirt’s parking lot. The driver of the Cougar turned off the

engine and sat in the vehicle for five or ten minutes. No one approached the

vehicle or exited it during that time. The Cougar then drove away from Flirt’s,

north on Highway 63. Officer Zubak followed the Cougar and ran Manzanares’s

name and date of birth through his in-car computer in an effort to obtain driver’s
                                        3



license information from the Iowa and Minnesota databases. The search turned

up no records for Manzanares.

      While Officer Zubak was following the Cougar, he pulled up next to the

vehicle and looked at the driver. Officer Zubak could see the profile of the driver

and determined he appeared to be the same age as the registrant. The Cougar

subsequently pulled off the road into the parking lot of a closed video store.

Officer Zubak drove past the video store parking lot but watched in the rearview

mirror as the Cougar pulled out of the parking lot and continued driving north.

Officer Zubak did a u-turn in order to follow the Cougar.       As Officer Zubak

followed the Cougar, he ran Manzanares’s name and date of birth through the

Iowa and Minnesota databases again. His search again turned up no driver’s

license records.

      Officer Zubak then stopped the Cougar and asked the driver, Manzanares,

to produce his driver’s license. Manzanares could not find it in his pockets, so

Manzanares gave Officer Zubak his name, date of birth, and social security

number. While standing at the Cougar, Officer Zubak could smell marijuana from

inside the vehicle. Officer Zubak then had dispatch search using the information

Manzanares gave, but dispatch still did not find a driver’s license record in the

Iowa or Minnesota databases. After going back to the Cougar, Officer Zubak

asked Manzanares for anything with his name on it, and Manzanares pulled out

his Minnesota driver’s license. A backup officer, Officer Nissen, showed up, and

Officer Zubak asked him to see if he smelled anything coming from the vehicle.
                                          4



While Officer Nissen spoke with Manzanares, Officer Zubak contacted his

dispatcher, who ran Manzanares’s driver’s license number and found it was valid.

       Officer Nissen asked Manzanares whether there was anything illegal in

the vehicle, and Manzanares handed him marijuana and a device for smoking it.

The officers placed Manzanares under arrest and searched his person. The

officers found two baggies of cocaine in Manzanares’s pockets and then

proceeded to search the vehicle.       The officers found numerous items in the

vehicle, including $752 in cash, more marijuana, and ecstasy pills.

       The State charged Manzanares with (1) possession of ecstasy with intent

to deliver, (2) possession of marijuana with intent to deliver, (3) failure to affix a

drug tax stamp, and (4) possession of cocaine.

       In May 2011 Manzanares filed a motion to suppress all evidence from the

traffic stop. He filed amendments to the motion in February 2012 and April 2012.

Following a June 19, 2012 suppression hearing, the district court denied the

motion. Manzanares then agreed to a trial on the minutes. On July 6, 2012,

Manzanares was found guilty of all charges. Manzanares now appeals, alleging

the stop of his vehicle was unreasonable and all evidence should be suppressed.

II.    Standard of Review

       Manzanares alleges violations of the Fourth Amendment to the United

States Constitution and article I, section 8 of the Iowa Constitution. We review

constitutional challenges de novo, considering the totality of the circumstances.

State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995). When an Iowa constitutional

claim is made but the court is not urged to consider the Iowa Constitution
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differently than the federal constitution, we will not separately discuss the Iowa

Constitution. See State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012) (“We have

considered the federal and state constitutional provisions ‘as congruent’ for

purposes of appeal when the appellant provides no argument they should be

applied differently.”).

III.   Analysis

       Manzanares argues the stop of his vehicle violated his constitutional

rights. Both the United States Constitution and the Iowa Constitution protect

individuals against unreasonable searches and seizures by the government.

U.S. Const. amend. IV; Iowa Const. art. 1, § 8. Warrantless searches are per se

unreasonable unless an exception applies. Cook, 530 N.W.2d at 731. One well-

established exception to the warrant requirement “allows an officer to briefly stop

an individual or vehicle for investigatory purposes when the officer has a

reasonable, articulable suspicion that a criminal act has occurred, is occurring, or

is about to occur.” State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010). The

police officer must “‘be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that

intrusion.’” State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (quoting Terry

v. Ohio, 392 U.S. 1, 21 (1968)), overruled on other grounds by State v. Turner,

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

       We use an objective standard to determine whether the facts available to

the officer would “lead a reasonable person to believe that the action taken by

the officer was appropriate.” State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997)
                                         6



(citing Terry, 392 U.S. at 21–22). In determining the reasonableness of the stop,

we look at the totality of the circumstances 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) (quoting United

States v. Hall, 525 F.2d 857, 859 (D.C. Cir. 1976)). If the State cannot prove that

the police officer had a reasonable suspicion of criminal activity, all the evidence

recovered from the investigatory stop must be suppressed. Vance, 790 N.W.2d

at 781.

       Manzanares argues there was not reasonable suspicion to initiate an

investigatory stop because there were no articulable facts to suggest a criminal

act had occurred or was going to occur. He asserts that because the officer’s

driver’s license search elicited no records for Manzanares, there were no

articulable facts to indicate Manzanares was actually driving without a valid

license.

       When there is an articulable and reasonable suspicion that a motorist is

unlicensed, an officer may stop the vehicle to check the driver’s license and

registration. Delaware v. Prouse, 440 U.S. 648, 663 (1979). Using information

obtained from a successful vehicle registration check, Officer Zubak ran

Manzanares’s name and date of birth using his in-car computer at least twice to

obtain driver’s license records from Iowa and Minnesota.        Both times Officer

Zubak received no records regarding a driver’s license for Manzanares, the

registered owner. At the time, Officer Zubak presumed the owner of the vehicle

was the operator and believed this lack of records meant Manzanares did not
                                           7



have a driver’s license and was driving illegally. However, he admitted in court

there could have been something wrong with the search and he had not received

information Manzanres’s license had been revoked or suspended.

       Manzanares asserts that because Officer Zubak had no proof of a revoked

or suspended license, there cannot be reasonable suspicion of driving without a

license. Yet,

       “officers [are] not required to rule out all possibility of innocent
       behavior before initiating a brief stop and request for
       identification. . . . Even if it [is] equally probable that the vehicle or
       its occupants were innocent of any wrongdoing, police officers must
       be permitted to act before their reasonable belief is verified . . . .”

Kreps, 650 N.W.2d at 642 (quoting United States v. Holland, 510 F.2d 453, 455

(9th Cir. 1975)). Officer Zubak double checked to make sure he could not obtain

records from the states where he believed Manzanares was most likely to be

licensed. Simply because there are other, innocent explanations for a person’s

actions or for the lack of computer records does not preclude an officer the ability

to investigate. See id.

       Just as Officer Zubak did not obtain a record that Manzanares was in fact

driving without a valid license, the officer did not get confirmation that

Manzanares was driving with a valid license.            This uncertainty justifies an

investigatory stop to determine the legality of Manzanares’s driving. See United

States v. Cortez-Galaviz, 495 F.2d 1203, 1206 (10th Cir. 2007) (“To be sure, the

‘not found’ response Officer Rapela received from the database did not as

definitively indicate criminal activity as a ‘no’ response, but neither did it equate to

an exculpatory ‘yes,’ and the suggestive ambiguity of the particularized and
                                          8



objective information Officer Rapela had at hand justified his decision to warrant

a brief traffic stop—even though it surely would not have sufficed for an arrest.”).

In fact, an investigatory stop’s principal function is to “resolve the ambiguity as to

whether criminal activity is afoot.” State v. Richardson, 501 N.W.2d 495, 497

(Iowa 1993).    Officer Zubak had reasonable suspicion, from the two driver’s

license searches alone, to stop the vehicle in order to resolve the uncertainty of

Manzanares’s driver’s license status.1

       Manzanares next argues that Officer Zubak’s mistake as to Manzanares’s

license status is unreasonable and State v. Jackson, 315 N.W.2d 766, 767 (Iowa

1982), should not control this case. A mistake of fact may justify a traffic stop

when the mistake is objectively reasonable. State v. Lloyd, 701 N.W.2d 678, 681

(Iowa 2005). In Jackson, an officer stopped the Jackson’s vehicle because the

vehicle did not have license plates, which is a violation of Iowa law. 315 N.W.2d

at 767. When the officer spoke to him, Jackson pointed out a properly displayed

department of transportation paper plate. Id. The court held that the officer’s

stop of Jackson’s vehicle was not random or selective but the result of the

officer’s belief that Jackson was breaking the law by not displaying license plates.

Id. The officer’s mistake did not make the stop illegal. Id.

       In the instant case, Officer Zubak perceived facts which made him believe

Manzanares may have been driving without a valid license. Because the Iowa

Supreme Court has already held officers may rely on mistakes of fact to justify


1
  The State also argues Officer Zubak had reasonable suspicion that Manzanares was
involved in drug trafficking. We do not need to reach that issue because Officer Zubak
had reasonable suspicion to stop the vehicle on the driver’s license searches alone.
                                           9



traffic stops, our analysis rests on whether the officer’s mistake was reasonable.

See Lloyd, 701 N.W.2d at 680–82. Even though a “no records” return does not

always mean a person does not have a driver’s license, it is one interpretation of

the search. In Officer Zubak’s experience, a “no records” return indicates the

person does not have a driver’s license. He double checked his in-car search in

case there was an error, but the search continued to come up empty. Upon the

facts available and his experience, Officer Zubak reasonably believed

Manzanares had no driver’s license, and the investigatory stop was therefore

reasonable.

       Manzanares also argues there was not reasonable suspicion to stop his

vehicle because the officer “was not even sure that the registered owner was the

vehicle’s driver.”   However, in Vance, the Iowa Supreme Court rejected this

assertion.    790 N.W.2d at 781; see also Cortez-Galaviz, 495 F.3d at 1207

(“[C]ommon sense and ordinary experience suggest that a vehicle’s owner is,

while surely not always, very often the driver of his or her own car.”). The court

held that there is reasonable suspicion to conduct

       an investigatory stop of a vehicle to investigate whether the driver
       has a valid driver’s license when the officer knows the registered
       owner of the vehicle has a suspended license, and the officer is
       unaware of any evidence or circumstances indicating the registered
       owner is not the driver of the vehicle.

Vance, 790 N.W.2d at 781. The court made this determination for three reasons:

it is reasonable to infer a registered owner of a vehicle will do the majority of

driving the vehicle, requiring verification that the driver is the registrant would limit

an officer’s ability to investigate driver’s license violations, and allowing an officer
                                        10



to infer the registrant is driving ensures the safety of the roadways. Id. at 782.

The Vance court did point out that there would not be reasonable suspicion if the

officer can see that the driver is of a different gender or age than the registrant.

Id.

       This case is controlled by Vance. Officer Zubak noticed that the driver

was of a similar age and gender to the registrant before beginning the

investigatory stop. There were no facts or circumstances to indicate to Officer

Zubak that Manzanares, the registrant, was not driving the vehicle. Therefore, it

was reasonable for Officer Zubak to infer Manzanares was both the registrant

and the driver of the vehicle. The district court correctly denied the motion to

suppress.

       AFFIRMED.

       Vaitheswaran, J., concurs; Danilson, C.J., dissents.
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DANILSON, C.J. (dissenting)

       I respectfully dissent.   Here the State attempts to create suspicion of

criminal activity by its own ineptitude. We could surmise that either the officer

erred in his data entry, an error existed within the database, or some other

technological error prevented the retrieval of the correct information regarding the

status of Manzanares’ driver’s license.      We have no clue what error really

occurred, but once full and accurate information was provided, an accurate

response was obtained. The same can be said about the existence of criminal

activity—the officer had no clue.      The State may not create a reasonable

suspicion of criminal activity because it was prevented from obtaining accurate

information regarding the status of an individual’s driver’s license due to its own

technological error or deficiency. I believe the motion to suppress should have

been granted. I would reverse.
