                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1025
                                Filed July 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PEDRO IBARRA MURILLO JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Paul R. Huscher

(suppression) and Randy V. Hefner (trial and sentencing), Judges.



      The defendant appeals from the denial of his motion to suppress.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                          2


POTTERFIELD, Judge.

       Pedro Ibarra Murillo Jr. appeals from the denial of his motion to suppress.

He maintains his constitutional rights were violated when police officers detained

him without reasonable suspicion to prolong the stop after arresting the passenger

of his vehicle. He asks that we reverse the denial of his motion and suppress all

evidence obtained from his vehicle.

I. Background Facts and Proceedings.

       On the afternoon of September 30, 2016, Deputy Sheriff Adam Jacobs was

getting into his patrol car when he noticed a truck pulling a trailer as it drove by

him. He recognized the man sitting in the passenger seat as Michael Feller, whom

the deputy knew had an outstanding warrant for arrest. The officer followed the

truck for a number of miles before initiating a stop of the vehicle. After the driver—

Murillo—pulled over, Deputy Jacobs approached the passenger side of the truck.

As he got near, Jacobs noticed that Feller had reclined his seat and was laying

down in the truck; a manner in which he had not been seated before the officer

initiated the stop. Jacobs instructed Murillo to roll down the window or unlock the

doors of the vehicle so he could extract Feller from the truck, but Murillo refused

to do so. The officer advised Murillo that he had stopped the vehicle because he

had a warrant for the arrest of his passenger, but Murillo still refused to comply.

After the officer radioed for a second unit and withdrew his service weapon, Murillo

unlocked the doors. Feller then exited the vehicle. Deputy Jacobs patted down

Feller, finding a knife and small bag of methamphetamine1 in Feller’s pocket.


1
  Jacobs testified he recognized the substance as methamphetamine at the time he found
it based on his training; later testing of the substance confirmed his identification.
                                          3


Jacobs handcuffed Feller and put him in the back of his squad car. According to

the call-for-service-detail report created and kept by the police department, this

occurred at 17:00 hours or 5:00 p.m.

       After Feller had been detained, Jacobs returned to Murillo’s vehicle to speak

with him, asking Murillo for his license, registration, and proof of insurance.

“Unprompted,” Murillo told Deputy Jacobs that he did not want the officer to search

his vehicle. Additionally, he reported he did not have his registration card or current

insurance information with him. Jacobs noted that Murillo had not checked the

center console for the documents and asked him if he intended to do so; Murillo

responded that it was locked. At that point, at 5:11 p.m., Deputy Jacobs called for

a K-9 unit.

       Deputy Behnken and the drug-sniffing dog, Kaia, arrived at the scene at

5:26 p.m. Within a few minutes, Deputy Behnken took Kaia around the vehicle;

she “indicated” by sitting near the rear passenger door.

       Deputy Jacobs and Deputy Behnken then decided to conduct a search of

the interior of the vehicle. They were initially unable to begin the search, as Murillo

had intentionally locked the keys in the vehicle when he was asked to step out so

the dog sniff could be conducted. The officers used a tool to gain entry into the

vehicle. Once inside, the officers used the ignition key for the vehicle to open the

locked center console. The search uncovered:

       a loaded Sig P238 with a leather holster located in the center
       console, along with a plastic bag full of U.S. currency, a couple glass
       pipes with green leafy plant substance, . . . believe[d] to be
       marijuana, a tear dropper full of brown liquid, . . . believe[d] to be
       THC oil, and a large amount of U.S. currency in the back seat of the
       pickup truck.
                                          4


According to the complaint and affidavit filed by Deputy Jacobs, the officers also

found “a clear plastic baggie containing an amount of a crystal like substance . . .

on the driver’s side floor board,” which field tested positive for methamphetamine.

       Deputy Jacobs then placed Murillo under arrest. Murillo was charged with

possession of a firearm by a felon, possession of a controlled substance

(methamphetamine), and possession of a controlled substance (marijuana).

       Murillo filed a motion to suppress, arguing he had been seized when he was

detained so the officers could call for and complete a dog sniff of his vehicle without

officers having the requisite level of suspicion. Murillo later filed an amended

motion, in which he argued—under the recently decided State v. Coleman, 890

N.W.2d 284, 301 (Iowa 2017)—that the purpose of the stop was resolved once the

officer detained Feller, so the officer could not then extend the traffic stop by

returning to the vehicle and asking Murillo for his license and registration.

       At the suppression hearing, Deputy Jacobs testified that at the time he

initiated the stop, he was personally aware of Feller’s history of involvement with

illegal drugs, as he had previously been involved in a high-speed chase with Feller

that ultimately resulted in the recovery of a half pound of marijuana and some

amount of methamphetamine from Feller’s vehicle. Additionally, the deputy knew

the current arrest warrant for Feller’s arrest stemmed from Feller’s violation of that

probation. Additionally, Jacobs testified he had “been provided information from

several sources that Mr. Murillo was involved in the sale and trade of illegal

narcotics and that he was currently—that Mr. Feller was an associate of his and

that Mr. Feller was hiding out at his farm residence.” Jacobs also claimed his

unnamed sources told him, “Murillo was known to carry weapons,” and that
                                          5


Murillo’s vehicle—the truck and trailer that Jacobs pulled over—“match[ed] the

description” of the vehicle his contacts told him Feller was using “while he was on

the run.” He conceded this information was more than two weeks old at the time

of the traffic stop.

       In the written ruling, the court noted the State asserted “reasonable

suspicion to prolong the stop and to perform a drug dog sniff” “arose from [Murillo’s]

actions, including refusing to unlock the doors for officers, locking his own keys

inside the vehicle, and stating that he would not give consent to a search prior to

officers asking for a search.” The court rejected a number of the officer’s reasons

justifying the stop, including his claims that he was unable to read the license plate

on the trailer, that Murillo and Feller had said there was a death in the family that

required them to go to Denison yet they were not on the most direct route, and that

“several sources” had previously told him Murillo was known to carry a weapon

and to be involved in drug activity.     Yet the court denied Murillo’s motion to

suppress, ruling the deputies had reasonable suspicion at the time Feller was

arrested to extend the stop of Murillo. In reaching its decision, the court relied on

the following:

               Upon stopping the vehicle, it was Murillo who refused to open
       a window or door until the officer pulled his weapon. Upon removing
       Feller from the pickup, and finding controlled substances on his
       person, the request that the driver produce the registration and proof
       of insurance was not impermissible. Murillo’s response that he
       wouldn’t look in the console because it was locked, his statement
       regarding refusing a search when none was requested, and his
       failure to produce documents required to be maintained in the vehicle
       provided a sufficient basis for his further detention.
               ....
               The court finds [Murillo’s] suspicious behavior, his association
       with Feller, and the presence of drugs on Feller, provide enough,
       reasonable suspicion for a dog sniff.
                                             6



       Following the denial of his motion to suppress, Murillo waived his right to a

jury trial, and the case proceeded to a bench trial on the stipulated minutes of

evidence. The court found Murillo guilty as charged as to each of the three counts.

Murillo was later sentenced to a term of incarceration not to exceed five years.

Murillo appeals.

II. Standard of Review.

       “We review the district court’s denial of a motion to suppress on

constitutional grounds de novo.” Coleman, 890 N.W.2d at 286. “This review

requires ‘an independent evaluation of the totality of the circumstances as shown

by the entire record.’” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011) (quoting

State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)). We give deference to the fact

findings of the district court “due to its opportunity to evaluate the credibility of the

witnesses,” but we are not bound by the findings. Id. (citation omitted).

III. Discussion.

       Pursuant to Coleman, a law enforcement officer making a valid traffic stop

supported by reasonable suspicion must terminate the stop when the underlying

reason for the stop has been resolved and there is no other basis for reasonable

suspicion. 890 N.W.2d at 301. As the district court found, the underlying reason

for the stop was to arrest Feller.2 It is undisputed this was completed before the

officer turned his attention to Murillo. Thus, the initial question before us is whether



2
  At the suppression hearing, Deputy Jacobs testified that he was unable to see Murillo’s
rear license plate on the trailer while he was following the vehicle, suggesting another
basis for the stop. However, the trial court found this claim lacked merit, as the video from
Jacob’s police car—which was admitted as an exhibit—showed otherwise. The State has
not renewed this argument on appeal.
                                          7


Deputy Jacobs had some other basis for reasonable suspicion to extend the stop

at the time he returned to Murillo’s vehicle and asked him for his license,

registration, and proof of insurance.

       In Iowa, “[w]e strongly favor the warrant requirement, subject only to

‘jealously and carefully drawn exceptions.’” Id. at 286 (quoting State v. Strong,

493 N.W.2d 834, 836 (Iowa 1992)). “One of the well-established exceptions to the

warrant requirement is that formulated in Terry v. Ohio, which allows an officer to

stop an individual or vehicle for investigatory purposes based on a reasonable

suspicion, supported by specific and articulable facts, that a criminal act has

occurred or is occurring.” State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (citing

Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). Here, the State maintains the officer

could extend the stop and expand the scope to Murillo because “Deputy Jacobs

discovered facts that gave rise to a reasonable suspicion that Murillo was either

committing or concealing evidence of a crime” before Feller was detained.

Specifically, the State maintains Murillo’s refusal to unlock or open the doors to

allow the officer to extract Feller from the vehicle; the fact that drugs were found

on Feller, as well as Murillo’s association with the known drug dealer; and the

information Deputy Jacobs had previously learned about Murillo from “tips” or

“sources” was enough to give rise to reasonable suspicion. It is the State’s burden

to prove by a preponderance of the evidence that the officer had the requisite level

of suspicion necessary to continue the stop. See State v. Tyler, 830 N.W.2d 288,

293 (Iowa 2013).     “The existence of a reasonable suspicion is based on an

objective standard: whether the facts available to the officer at the time of the stop

would lead a reasonable person to believe that the action taken by the officer was
                                          8

appropriate.” Kinkead, 570 N.W.2d at 100. “If the State fails to carry its burden,

the evidence obtained through the investigatory stop must be suppressed.” Id.

       In determining whether the basis for reasonable suspicion existed, “we do

not evaluate . . . based on each circumstance individually, but determine the

existence of reasonable suspicion by considering all the circumstances together.”

State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015). Like the district court, we find

the officer’s testimony that he had received uncorroborated tips from unnamed

sources weeks before about Murillo carrying a weapon and being engaged in the

narcotics trade to be without value for the purpose of providing reasonable

suspicion. “An anonymous tip, alone, does not ordinarily contain sufficient indicia

of reliability to provide reasonable suspicion, let alone probable cause.” See State

v. Kern, 831 N.W.2d 149, 175 (Iowa 2013). Additionally, while we take into account

the fact that the officer found drugs on Feller’s person, we find this fact of limited

value when considering whether it provides reasonable suspicion since, in his

testimony, Deputy Jacobs agreed he had not seen or smelled evidence of illegal

drugs in the vehicle when he detained Feller; the officer also did not provide

testimony of any behavior from Murillo that indicated he was under the influence

of narcotics. Cf. State v. Predka, 555 N.W.2d 202, 207 (Iowa 1996) (finding

probable cause to search a vehicle based on the odor of marijuana emanating from

the vehicle, the driver’s “nervous state and heavy breathing,” and the officer’s

observation of plastic bags in the car”). That being said, we recognize that a

suspect’s association with a known drug dealer is a relevant consideration in

determining whether reasonable suspicion exists. See State v. Dougherty, No. 09-

0812, 2011 WL 441551, at *9 (citing State v. Bergmann, 633 N.W.2d 328, 333
                                          9


(Iowa 2001) (finding reasonable suspicion to conduct a search when the suspect

“was spotted in a known drug area alongside a nefarious drug dealer,” when the

drug dealer retreated once he saw the police and the suspect then drove away

quickly, and when the officers recognized the suspect from a past weapon and

drug arrest and the suspect lied to the officer and acted nervous)). The State

maintains that Murillo’s initial refusal to unlock the doors of his vehicle “raised a

strong inference” that “Murillo believed that evidence that would be discovered if

Feller were arrested would also implicate Murillo.” The State argues Murillo’s

avoidant behavior “can be used to establish reasonable suspicion.” See, e.g.,

State v. Wilson, 878 N.W.2d 203, 211, 213 (Iowa 2016) (“It is well-settled law that

the act of avoiding law enforcement after a crime has been committed may

constitute circumstantial evidence of consciousness of guilt that is probative of guilt

itself. . . .   [T]he probative value of evidence showing a defendant avoided

apprehension turns on the circumstances under which the avoidance occurred.”).

Additionally, Murillo’s refusal to unlock the doors of the vehicle after he was

advised that Deputy Jacobs had a warrant for Feller’s arrest provided Deputy

Jacobs with probable cause Murillo had interfered with official acts. See Iowa

Code § 719.1(1)(a), (b) (2016) (providing that a person commits interference with

official acts when the persons knowingly resists or obstructs anyone known by the

person to be a peace officer in the performance of an act which is within the scope

of the lawful duty or authority, which is a simple misdemeanor.). Deputy Jacobs’s

witnessing of Murillo’s infraction provided a basis for the lawful continuance of the

stop—even if it was not actually Deputy Jacob’s reason for continuing the stop.

See Pals, 805 N.W.2d at 774 (noting federal courts are split on whether a police
                                         10

officer may stop a vehicle based only on reasonable suspicion of a completed

misdemeanor but reiterating the well-settled notion that police may pull over a car

based on probable cause of an ongoing infraction); see also State v. Freeman,

705 N.W.2d 293, 297 (Iowa 2005) (“We base our assessment of a law enforcement

officer’s conduct on an objective standard. The legality of the search does not

depend on the actual motivations of the law enforcement officers involved in the

search.” (citation omitted)).

       Because Deputy Jacobs had a basis to lawfully continue the stop, Murillo’s

constitutional rights were not violated when the officer approached his vehicle after

detaining Feller and asked for Murillo’s license, registration, and proof of

insurance. See Coleman, 890 N.W.2d at 299 (“[I]t is possible when there is a valid

ongoing traffic stop officers may properly seek driver’s identification, registration,

and insurance information.”).

       Next, we must consider whether Deputy Jacobs had the requisite suspicion

to detain Murillo while the officer called for a K-9 unit to conduct an open-air sniff

of Murillo’s vehicle. Because “a dog sniff that occurs outside a vehicle is not a

search under the meaning of the Fourth Amendment,” “neither probable cause nor

reasonable suspicion must be present to justify it.” Bergmann, 633 N.W.2d at 333.

However, pursuant to Rodriguez v. United States, 135 S. Ct. 1609, 1612, 1615

(2015), “a police stop exceeding the time needed to handle the matter for which

the stop was made violates the Constitution’s shield against unreasonable

seizures” “absent the reasonable suspicion ordinarily demanded to justify

detaining an individual.” “Beyond determining whether to issue a traffic ticket”—or

here, a citation for interfering with official acts—“an officer’s mission includes
                                            11

‘ordinary inquiries incident to [the traffic] stop.’” Rodriguez, 135 S. Ct. at 1615

(alteration in original) (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)).

“Typically such inquiries involve checking the driver’s license, determining whether

there are outstanding warrants against the driver, and inspecting the automobile’s

registration and proof of insurance.” Id. “Lacking the same close connection to

roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as

part of the officer’s traffic mission.” Id. “The critical question . . . is not whether the

dog sniff occurs before or after the officer issues a ticket . . . but whether conducting

the sniff ‘prolongs’—i.e., adds time to—‘the stop.’” Id. at 1616.

       It is undisputed that calling the K-9 unit and performing the dog sniff “added

time” to the stop. Feller was detained at 5:00 p.m., and Deputy Jacobs then

approached Murillo in his vehicle and asked for his identification. Only after this

initial contact with Murillo was completed did Deputy Jacobs call for the K-9 unit—

at 5:11 p.m.—which did not arrive until 5:26 p.m., with the dog sniff apparently

occurring a few minutes later. Thus, the question is whether Deputy Jacobs had

reasonable suspicion to detain Murillo for the prolonged stop.

       Here, after Feller had been detained, Jacobs returned to Murillo’s vehicle

and asked him for his license, registration, and proof of insurance. According to

Deputy Jacobs’s testimony, Murillo then told the officer, unprompted, that he did

not want him to search his vehicle. Additionally, Murillo reported he did not have

his registration card or current insurance information with him. Jacobs noted that

Murillo had not checked the center console for the documents and asked him if he

intended to do so; Murillo responded that it was locked. It was then that Deputy

Jacobs called for the K-9 unit. We must determine if these actions, along with the
                                          12


others Murillo had already taken since the stop was initiated, provided a basis for

reasonable suspicion that allowed Deputy Jacobs to detain Murillo while he called

the K-9 unit.

       While the State maintains—and the district court found—that Murillo’s

refusal to give consent to the search of his vehicle before it was even requested

was a basis for reasonable suspicion, “neither the invocation of constitutional rights

nor the refusal to grant consent to an officer to perform a search can be used alone

to support either reasonable suspicion or probable cause.” State v. Kern, 831

N.W.2d 149, 175 (Iowa 2013); see also Florida v. Bostick, 501 U.S. 429, 436

(1991) (“We have consistently held that a refusal to cooperate, without more, does

not furnish the minimal level of objective justification needed for a detention or a

seizure.”). Additionally, we do not accept the State’s invitation to consider Murillo’s

invocation of his legitimate privacy right “along with all the other factors” in

determining whether reasonable suspicion existed, as such an invitation cannot

pass constitutional muster. While the case law denouncing such an approach is

clear, we take this opportunity to “emphasize that refusal to consent should not

have been considered in determining reasonable suspicion.” United States v.

Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998).             As our supreme court

expounded:

                       Any other rule would make a mockery of the
                reasonable      suspicion   and    probable     cause
                requirements, as well as the consent doctrine. These
                legal principles would be considerably less effective if
                citizens’ insistence that searches and seizures be
                conducted in conformity with constitutional norms
                could create the suspicion or cause that renders their
                consent unnecessary.
                                        13


             We agree. If such a refusal of consent or invocation of
      constitutional rights could supply officers with the requisite suspicion
      or cause to conduct a search, then citizens would be exposed to a
      dangerous catch-22 when officers request consent to conduct a
      search. If consent is given, the search occurs. If consent is refused,
      the officer may nevertheless conduct the search pursuant to the
      probable cause generated by the refusal. This is an unacceptable
      consequence under our constitutional framework.

Kern, 831 N.W.2d at 175–76 (quoting Hunnicut, 135 F.3d at 1350).

      We are, however, persuaded by the State’s argument that Murillo’s

indication that he was unable to open the locked center console—when a rational

inference led Deputy Jacobs to conclude the ignition key would unlock the

compartment—considered in conjunction with his association with Feller, a known

drug dealer who was found to have drugs on his person at that time, and Murillo’s

initial refusal to open or unlock the doors, provided a basis for reasonable

suspicion there were drugs in Murillo’s vehicle. See State v. Vance, 790 N.W.2d

775, 781 (Iowa 2010) (“For an investigatory stop to comply with the protections of

the Fourth Amendment, the State must prove by a preponderance of the evidence

the officer had specific and articulable facts that, taken together with rational

inferences from those facts, would lead the officer to reasonably believe criminal

activity is afoot.”); see also State v. Lindsey, 881 N.W.2d 411, 426 (Iowa 2016)

(recognizing “‘common-sense conclusio[ns] about human behavior’ upon which

‘practical people’—including government officials—are entitled to rely” (citations

omitted)). While it was possible Murillo had another, not unlawful reason for

disingenuously claiming he could not unlock the center console, “‘reasonable

suspicion’ is a less demanding standard than probable cause and requires a

showing considerably less than preponderance of the evidence.”             Illinois v.
                                        14

Wardlow, 528 U.S. 119, 123 (2000). Moreover, “reasonable cause may exist to

investigate conduct which is subject to a legitimate explanation and turns out to be

wholly lawful.” State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993).

       Because the officer had a reasonable suspicion Murillo was concealing

narcotics in his vehicle, Murillo’s constitutional rights were not violated when

Deputy Jacobs detained him to call the K-9 unit. As Murillo has not challenged the

constitutionality of the remainder of the stop—including when the officers

conducted a warrantless search of the interior of the vehicle after the K-9 unit

indicated near the vehicle—we affirm the district court’s denial of Murillo’s motion

to suppress the evidence found in his truck.

       AFFIRMED.
