                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0027
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRAVIS C. NIERLING,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Stephanie C.

Rattenborg, District Associate Judge.



      Travis Nierling appeals his conviction for operating a motor vehicle while

intoxicated. AFFIRMED.



      Jeremy L. Thompson of Putnam Fern & Thompson Law Office, P.L.L.C.,

Decorah, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson and Tyler J. Buller,

Assistant Attorneys General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                          2


VAITHESWARAN, Presiding Judge.

       Travis Nierling appeals his conviction for operating a motor vehicle while

intoxicated. His primary contention is that the officer who stopped him lacked

reasonable suspicion to make the stop.

I.     Background Facts and Proceedings

       A woman called 911 and told the dispatcher she wished to report “drunk

driving” by someone at a pizza shop. She identified the make, color, and license

plate number of the car, told the dispatcher the person was “getting in the car now

to leave,” continued her observation, then advised “[H]e’s leaving now.” The

person identified herself and gave the dispatcher her address and phone number.

       While the known tipster was still on the line, the 911 dispatcher called law

enforcement to advise of a possible drunk driver. A uniformed, holstered deputy

sheriff in a marked vehicle fell in behind the car. In a few minutes, the car pulled

into a private driveway, and the deputy pulled in behind it. Travis Nierling got out

of the car. The deputy observed signs of intoxication and took Nierling into

custody.

       The State charged Nierling with operating a motor vehicle while intoxicated,

first offense, in violation of Iowa Code section 321J.2 (2016). Nierling moved to

suppress the evidence on the ground that “the anonymous tip provided to Clayton

County Sheriff Department did not have the requisite indicia of reliability to justify

an investigatory stop.” He raised the issue under the Fourth Amendment to the

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

Following an evidentiary hearing, the district court denied the motion. Nierling
                                          3


agreed to a bench trial on the minutes of evidence. The district court found him

guilty as charged and imposed sentence. This appeal followed.

II.    Suppression Ruling

       “Stopping an automobile and detaining its occupants constitutes a seizure

under the Fourth Amendment.” State v. Kooima, 833 N.W.2d 202, 206 (Iowa

2013).” “The Fourth Amendment permits brief investigative stops . . . when a law

enforcement officer has ‘a particularized and objective basis for suspecting the

particular person stopped of criminal activity.’” Navarette v. California, 134 S. Ct.

1683, 1687 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

       At the suppression hearing, Nierling argued the informant’s tip did not afford

the deputy sheriff reasonable suspicion to stop him. The State countered that

there was no seizure under the Fourth Amendment. See State v. Harlan, 301

N.W.2d 717, 720 (Iowa 1981) (finding no evidence the officer stopped the car); see

also State v. Wilkes, 756 N.W.2d 838, 844 (Iowa 2008) (concluding no seizure

occurred). The district court adopted the State’s argument. Although the court did

not expressly rule on the reliability of the informant’s tip, the State concedes error

was preserved on the issue by virtue of Nierling’s motion to suppress and the

district court’s denial of the motion. See Harlan, 301 N.W.2d at 719 (“The adverse

ruling at the suppression hearing preserved any alleged error for our review.”).

       On appeal, Nierling reiterates the drunk-driving tip fell “well short of the

requisite indicia of reliability needed to conduct an investigatory stop.” The State

preliminarily responds with a “no seizure” argument but asserts, if there was a

seizure, “the deputy had reasonable suspicion because the tip was not

anonymous.”
                                          4


       We assume without deciding the deputy “seized” Nierling. We proceed to

the question of the informant’s reliability. Id. at 720 (stating we may “uphold the

conclusion of the trial court, even if we do not adopt its reasoning”). Our review of

this constitutional issue is de novo. See Wilkes, 756 N.W.2d at 841.

        Nierling incorrectly characterizes the tip as anonymous. As noted, the

informant identified herself by name and provided her phone number and address.

She was not an anonymous tipster, and the identification alone was an indicator

of reliability. Cf. Alabama v. White, 496 U.S. 325, 329 (1990) (noting veracity of

anonymous tips is “largely unknown, and unknowable”).

       The tipster also “claimed eyewitness knowledge of the alleged dangerous

driving.” Navarette, 134 S. Ct. at 1689. She gave the dispatcher a detailed

description of the car Nierling was driving, including the license plate number, and

observed Nierling as he got into his car and left. Id. (stating a “contemporaneous

report has long been treated as especially reliable”). While Nierling asserts the

dispatcher did not convey all those details to the deputy, our precedent allows the

dispatcher’s knowledge to be imputed to the deputy. See State v. Owens, 418

N.W.2d 340, 342 (Iowa 1988) (“[W]hen police officers are acting in concert, the

knowledge of one is presumed shared by all.”). Notably, the deputy saw the car

precisely where the tipster said it would be and pulled in behind it, providing further

corroboration of the tipster’s report.

       On our de novo review, we conclude the tipster’s information was reliable.

We further conclude the information provided by the tipster furnished reasonable

suspicion that “criminal activity [was] afoot.” See Navarette, 134 S. Ct. at 1690
                                            5

(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).1 We affirm the district court’s denial

of Nierling’s suppression motion, and we affirm his conviction for operating while

intoxicated.2

       AFFIRMED.




1
 We reach the same conclusion under the Iowa Constitution.
2
 Nierling failed to preserve error on his additional challenge to the deputy’s entry onto a
private driveway.
