                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1535
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARJAN STOJANOV,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Palo Alto County, Ann M. Gales,

District Associate Judge.



      Marjan Stojanov appeals the denial of his motion to suppress and

subsequent conviction for operating while under the influence. AFFIRMED.




      Jared R. Weber, Orange City, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

       Marjan Stojanov appeals the denial of his motion to suppress and

subsequent conviction for operating while under the influence (OWI).

       Stojanov was approached by Deputy Eric Ring while Stojanov was parked

in a gas station parking lot. The officer had located Stojanov driving a vehicle

matching the description of a citizen’s report of a suspected intoxicated driver

and followed the vehicle to the gas station. The officer did not observe any traffic

violations. Stojanov failed field sobriety tests, and a later breath test indicated a

blood alcohol content of more than twice the legal limit. Stojanov was charged

with OWI.     He filed a motion to suppress, asserting he was seized without

reasonable suspicion or probable cause and the results of the seizure should be

suppressed.

       Our review of the denial of a motion to suppress is de novo. State v.

Turner, 630 N.W.2d 601, 606 (Iowa 2001). “Under this review, we ‘make an

independent evaluation of the totality of the circumstances as shown by the

entire record.’” Id. (citation omitted). “The fact findings of the district court are

not binding; however, because the district court had the opportunity to assess the

credibility of the witnesses, we do give deference to those findings.” State v.

Shanahan, 712 N.W.2d 121, 131 (Iowa 2006).

       At the hearing on the motion to suppress, Stojanov and Deputy Ring

presented very different versions of their encounter. Deputy Ring testified he

parked next to the vehicle Stojanov had been driving. He then approached the

vehicle and engaged Stojanov in friendly conversation by saying “hello” and

asking, “Would you mind stepping out of the car for me?” After Stojanov did so,
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Deputy Ring asked, “Mind if I speak with you?”           According to the deputy,

Stojanov’s decision to engage in conversation with him was entirely voluntary up

until the point when Deputy Ring observed signs of intoxication and developed

reasonable suspicion to justify further detention for investigatory purposes.

       Stojanov testified, however, Deputy Ring’s unmarked vehicle partially

blocked him in, and when Stojanov got out of his vehicle and started walking

towards the store, the deputy yelled in a commanding voice, “Go back in the

vehicle.”    Stojanov described the deputy’s tone of voice as “very scary,

commanding, loud.” According to Stojanov, Deputy Ring gave the command for

Stojanov to get back in the vehicle while Deputy Ring was walking towards the

vehicle with his hand near his gun.

       The district court concluded Deputy Ring’s testimony was credible and

Stojanov’s was not, and Stojanov was not seized when the deputy approached

the vehicle but only after the deputy had cause to believe Stojanov was under the

influence.

       The trial court’s specific credibility finding was based upon this reasoning:

       Deputy Ring is a trained officer with over [thirteen] years of law
       enforcement experience. His testimony was reasonable and
       internally consistent. His memory of events was clear and
       unimpaired. There is no evidence that he had a preexisting bias
       against Stojanov—or that he had any previous knowledge of
       Stojanov whatever. He testified that he was well aware he did not
       have grounds to detain Stojanov during the initial encounter and for
       that reason he was careful not to use police coercion to restrain
       Stojanov’s movement. These factors cause the Court to believe
       that Deputy Ring was cognizant of his constitutionally permissible
       boundaries and was careful not to cross them.
              Stojanov, on the other hand, had a clear motivation to testify
       untruthfully in order to avoid a conviction for operating while
       intoxicated. In addition, unlike Deputy Ring, Stojanov was impaired
       on the night in question, as evidenced by his failure of field sobriety
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       tests and the open containers of alcohol in his vehicle. It is likely
       that Stojanov’s perception of events and memory were impaired by
       his alcohol consumption. For all these reasons, the court rejects
       Stojanov’s version of events and accepts the deputy’s testimony as
       true.

In light of the deference owed to the district court’s specific credibility

determination and its superior position to examine and view the witnesses, we

adopt the findings as our own. We conclude Stojanov’s initial encounter with

Deputy Ring was not a seizure. See State v. Wilkes, 756 N.W.2d 838, 842 (Iowa

2008) (“Only when the officer, by means of physical force or show of authority,

has in some way restrained the liberty of a citizen may we conclude that a

‘seizure’ has occurred.” (citation omitted)). We therefore affirm.

       AFFIRMED.
