                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0051
                              Filed March 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FRANCO ALEXANDER ARELLANO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Deborah F.

Minot, District Associate Judge.



      Franco Arellano appeals from his conviction for possession of marijuana.

AFFIRMED.



      Christopher J. Foster of Foster Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Janet Lyness, County Attorney, and Rachel Zimmerman-

Smith, Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                        2


DOYLE, J.

      Franco Arellano appeals from his conviction for possession of marijuana,

challenging an impound and inventory search of his vehicle, in which he was a

passenger, and claiming any evidence gained as a result of the search should

have been suppressed.     Because the search of the vehicle was reasonable

under the impound and inventory exception to the warrant requirement, we affirm

the suppression ruling.

I.    Background Facts and Proceedings

      At approximately 2:00 a.m. on January 3, 2013, Franco Arellano was a

passenger in the backseat of his Honda Accord near downtown Iowa City when it

was stopped for an expired registration. The driver of the car was unable to

produce proof of valid insurance. The officer issued a citation for one of the

violations and a warning for the other. The car’s occupants were informed the

car was going to be impounded and towed. Officers offered Arellano and the

other occupants of the car an opportunity remove any property they wished from

the car. No one retrieved any property before leaving the scene.

      Officers inventoried the contents of the car before it was towed. In the

backseat, they found a backpack.      Upon opening the backpack, the officers

discovered a grinder, a scale, small baggies, 9.24 grams of marijuana, and mail

addressed to Arellano. The State filed a trial information charging Arellano with

possession of marijuana, in violation of Iowa Code sections 124.401(5) and

124.204(4)(m) (2013), a serious misdemeanor.

      Arellano filed a motion to suppress, alleging the officers’ search of the

car—based    on   the impound     and   inventory exception to the       warrant
                                          3


requirement—violated his rights against unreasonable search and seizure under

the Fourth Amendment of the United States Constitution and Article I, Section 8

of the Iowa Constitution.      Three Iowa City police officers testified at the

suppression hearing; the officer who conducted the stop and the two officers who

conducted the search. The district court entered a ruling denying the motion to

suppress.

       Arellano stipulated to a trial on the minutes of testimony. The district court

found him guilty as charged, entered judgment, and imposed a two-day jail

sentence and a fine of $315. Arellano appeals.

II.    Scope and Standard of Review

       We review this constitutional claim de novo; that is, we make an

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

entire record. See State v. Allensworth, 748 N.W.2d 789, 792 (Iowa 2008). A

person is protected against unreasonable searches and seizures, and therefore,

a search conducted without prior court approval is per se unreasonable unless it

falls into a category that is an exception to the Fourth Amendment’s warrant

requirement. Id.

III.   Discussion

       Arellano contends the district court erred in denying his motion to

suppress, asserting the search was unreasonable under the Fourth Amendment

of the United States Constitution and article I, section 8 of the Iowa Constitution.1


1
  Arellano refers to the “greater protections” provided by the Iowa Constitution, but
makes no specific argument relating to how a more stringent standard should be used in
this case. Consequently, we will confine our analysis to the grounds raised in his
appeal. See Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 494 (Iowa 2010) (applying the
                                            4


Specifically, Arellano claims the State “failed to meet its burden” of proving that

the police had a “reasonable standardized procedure” for impounding vehicles

and conducting inventory searches and “that the procedure was followed,” and

that any evidence obtained in the search should have been suppressed.

       We first address Arellano’s standing to challenge the impound and search.

He was a passenger in the car when it was stopped. A passenger with neither a

possessory nor a property interest in a vehicle does not have a legitimate

expectation of privacy in the vehicle. Rakas v. Illinois, 439 U.S. 128, 148-49

(1978); State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995); see also State v.

Nucaro, 614 N.W.2d 856, 859 (Iowa Ct. App. 2000); State v. Hungerford, 311

N.W.2d 699, 700 (Iowa Ct. App. 1981). Arellano makes no assertion in any court

filing that he owned the car he was riding in as a passenger. All his filings are

silent on the matter. But, the State asserts Arellano was the owner of the car.

Although the record is not as crystal clear as we would prefer, we accept the

State’s assertion.

       The minutes of testimony say nothing about ownership of the car. At the

suppression hearing, the court stated to Arellano’s counsel, “[W]hat I’m hearing

you tell me is that there’s no dispute that this vehicle was not owned by

[Arellano]; is that correct?” Arellano’s counsel responded, “That is correct, Your

Honor.” The court also confirmed that Arellano was a passenger in the car and

not the driver.      Iowa City police Officer Hektoen testified during cross-

examination at the suppression hearing:



general principles of the federal constitution where the defendant had “not advanced a
[different] standard for interpreting the due process clause under the Iowa Constitution”).
                                         5


       Q. And do you recall if the driver of the vehicle was the owner of
       the vehicle?” A. “I don’t think he was.”
       Q. And do you recall if the owner of the vehicle was at the scene?
       A. I believe it’s your client [Arellano].
       Q. That’s your recollection? . . . That my client [Arellano] was the
       owner of the vehicle? A. That’s my recollection, yes.

Inexplicably, the vehicle owner information box provided on the police impound

report was left blank. The district court’s ruling denying the motion to suppress is

silent on the matter of the car’s owner. The district court’s ruling regarding the

stipulated trial is also silent on the matter. As stated above, Arellano’s appellate

brief is silent on the matter. But, the State asserts in its appellate brief that

Arellano was owner of the car. That assertion is supported by the unrebutted

police officer’s sworn testimony. We therefore conclude the record supports a

finding that Arellano owned the car. As owner of the car, he has standing to

challenge the impoundment and search of his car.

       The Fourth Amendment of the United States Constitution protects against

unreasonable searches and seizures. Cady v. Dombrowski, 413 U.S. 433, 439

(1973). The State had the burden to prove by a preponderance of the evidence

that the warrantless search falls within one of the recognized exceptions. See

State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011).             One well-recognized

exception to the warrant clause is a vehicle inventory search.         Colorado v.

Bertine, 479 U.S. 367, 371 (1987); State v. Huisman, 544 N.W.2d 433, 436 (Iowa

1996). This exception responds to the practical problems arising when police

remove a vehicle’s operator and are then left to care for that vehicle. In such

circumstances, police act in a caretaking capacity rather than as criminal
                                            6

investigators. State v. Jackson, 542 N.W.2d 842, 845 (Iowa 1996); see South

Dakota v. Opperman, 428 U.S. 364, 368 (1976).

       “The legality of an inventory search depends on two overlapping inquiries:

the validity of the impoundment and the scope of the inventory.               If either is

unreasonable, the search violates the Fourth Amendment and evidence

discovered in the search must be suppressed.” Huisman, 544 N.W.2d at 436.

“Before a valid inventory search can be conducted, however, the government

official must first properly seize or impound the defendant’s vehicle.” State v.

Jackson, 542 N.W.2d 842, 845 (Iowa 1996). The impoundment is reasonable if

there are “reasonable standardized procedures and a purpose other than the

investigation of criminal activity.” Huisman, 544 N.W.2d at 437.

       In the context of an inventory search, the State had to produce evidence

that the impoundment and the inventory search procedures were in place and

that law enforcement complied with those procedures.                  United States v.

Kennedy, 427 F.3d 1136, 1144 (8th Cir. 2005). Although presumably readily

available, the State failed to introduce the written impound/inventory policy

utilized by the Iowa City police department.2 Nevertheless, failure to introduce

the written policy is not necessarily fatal to the State’s case. See People v.

Gipson, 786 N.E.2d 540, 544-46 (Ill. 2003) (an officer’s testimony describing the

standard procedure can be sufficient).

       At the suppression hearing, the State presented evidence to support its

assertion the impound and inventory-search procedures were in place and that


2
 It would be better for a prosecutor seeking to prove the existence of a written policy to
put a copy into evidence. See People v. Walker, 980 N.E.2d 937, 940 (N.Y. 2012)
                                        7


the officers complied with those procedures. Officer Hektoen testified he stopped

the vehicle because its license plates were expired.         Officer Kelly identified

“General Order 99-01” as the departmental policy providing for the impoundment

of uninsured vehicles, stating “if the driver is unable to prove they have valid

insurance for the vehicle, then the vehicle may be impounded for community

safety issues.” The officer stated the driver was unable to produce proof of valid

insurance, and that he issued the driver a warning and citation. The vehicle’s

occupants were informed the car would be towed and were an opportunity to

retrieve anything they wanted from the car.       The State presented sufficient

evidence establishing a reasonable standardized impoundment procedure and

sufficient evidence that the procedure was followed. See State v. Bitker, No. 13-

0520, 2014 WL 468228, at *3 (Iowa Ct. App. Feb. 5, 2014) (“Because our statute

[section 321.20B(4)(a)(4)] allows for impoundment where a driver cannot

produce proof of insurance, we find that when viewed objectively, the officer was

allowed to impound Bitker’s vehicle.”); cf. State v. Baylor, No. 14-0390, 2014 WL

7343738, at *3 (Iowa Ct. App. Dec. 24, 2014) (reversing the district court’s denial

of the defendant’s motion to suppress when the State failed to provide “any

information in the record indicating when and how law enforcement in Walcott

makes the decision to impound vehicles”). In any event, Arellano agreed at the

suppression hearing “that the only issue here is whether there was an

appropriate inventory search.”

      So, we move on to the inventory search issue. Officers Erickson and Kelly

testified that General Order number 99-01 also covered the procedure for

conducting inventory searches. Officer Erickson testified,
                                           8


       Basically our General Orders state that any vehicle that is—that
       shows—that fails to show proof of insurance then has the right to
       be taken off the road. The procedure for that is to, again, ask the
       owner or occupants to get anything of value out of that vehicle and
       take with them at that time, and then we do a full search around the
       vehicle for any issues with the vehicle, dents, scratches, damages,
       and then also a search inside the vehicle for any valuables left
       inside there.

Officer Erickson testified he was required to fill out a report after performing an

inventory search. Specifically, he said,

              We have a tow sheet, tow slip that we have to write down all
       the vehicle information as well as any issues with the vehicle,
       scratches, dents, anything like that, as well as any valuables that
       were inside the vehicle.

See, e.g., Jackson, 542 N.W.2d at 845 (“Inventory searches are justified for three

‘safe keeping’ purposes: (1) to protect the owner’s property while the vehicle is in

police custody; (2) to protect the police officer who performs the inventory search

against claims or disputes over the property; and (3) to protect the police officer

from potential danger.”). Officer Erickson’s impound report of the vehicle was

admitted into evidence.

       Although Officer Hektoen testified he noticed Arellano “was making some

furtive movements into what [Hektoen] later discovered was the area of a black

backpack seated next to [Arellano],” no evidence was presented relating to the

presence of an investigatory motive by the officers. See, e.g., United States v.

Agofsky, 20 F.3d 866, 873 (8th Cir. 1994) (“We decline to speculate about

Sergeant Russell’s subjective intent. The presence of an investigatory motive,

even if proven, does not invalidate an otherwise lawful inventory search.”).

       In considering this evidence and ruling on Arellano’s motion to suppress,

the district court stated:
                                        9


                The only issue is whether the warrantless search of the
       vehicle was lawful. Since the stop of the vehicle was justified, and
       the driver could not produce proof of insurance, the Court finds that
       the police were within their authority in impounding the vehicle.
       The testimony of all of the officers, particularly Officer Kelly,
       established that the search of the vehicle was conducted pursuant
       to standard impound/inventory procedures established by the
       ICPD. Further, the testimony established that the purposes of the
       search were to protect community from uninsured vehicles, to
       protect property rights, and to protect the police department from
       liability, not for any investigative purpose. Thus, the Court finds
       that the search of vehicle was an inventory search of an impounded
       vehicle that falls squarely within a well-recognized exception to the
       warrant requirement.

We agree.

       On our de novo review of these facts and circumstances, we conclude the

State provided the necessary evidence to support its claim the inventory-search

exception applied in this case. See State v. Cowan, No. 10-2100, 2011 WL

5867064, at *5 (Iowa Ct. App. Nov. 23, 2011) (“The officers’ impoundment of

Cowan’s car followed the standardized criteria established by their departments.

The inventory search they conducted before the tow truck arrived was

reasonable in its scope.”).

       Lastly, we consider Arellano’s argument that in the absence of evidence of

any standardized procedure permitting officers to search inside closed

containers, “the officers were not permitted to open or search any closed

containers within the vehicle without running afoul of Arellano’s constitutional

protections.” In State v. Jackson, 542 N.W.2d 842, 845-46 (Iowa 1996), our

supreme court considered the issue of opening closed containers (a suitcase)

during an inventory search. It held that in evaluating the validity of an inventory

search, our law requires an officer to execute the search pursuant to
                                          10

standardized criteria.    Jackson, 542 N.W.2d at 846.            Here, this discrete,

particularized argument was not specifically raised before the district court; we

therefore do not consider the issue for the first time on appeal. See State v.

Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic in the law of

appeal and error than the axiom that a party cannot sing a song to us [on appeal]

that was not first sung in trial court.”). Our error preservation rules are not legal

bramble bush that serve no purpose other than ensnaring unwitting litigants. See

State v. Tidwell, No. 13–0180, 2013 WL 6405367, at *2 (Iowa Ct. App. Dec. 5,

2013). Our error preservation rules preserve judicial resources by allowing the

district court the first opportunity to address an issue. It would be unfair to fault a

district court on an issue it never had the opportunity to consider. See Otterberg

v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 28 (Iowa 2005); DeVoss v. State,

648 N.W.2d 56, 60 (Iowa 2002). Thus, under our error preservation rules, an

issue must ordinarily be raised in and decided by the district court before we will

address it on appeal. See Stammeyer v. Div. of Narcotics Enforcement, 721

N.W.2d 541, 548 (Iowa 2006).

       Accordingly, we affirm the district court’s ruling denying Arellano’s motion

to suppress.

       AFFIRMED.

       Vogel, P.J., concurs specially; McDonald, J., concurs.
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VOGEL, P.J. (concurring specially)

      A poor record can have a dramatic impact on appellate review. In this

case, I only take exception with the majority’s conclusion that Arellano owned the

vehicle. Because, as the majority notes, the record is not “crystal clear” as to

ownership, I would conclude Arellano does not have standing—that is, the right—

to object to the search and subsequent impoundment of the vehicle in which he

was merely a passenger. See Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 864(Iowa

2005) (clarifying “standing” as whether the party has a legally protected interest

that has been invaded). If Arellano lacked that right in the district court, his

appeal should be dismissed.

      The facts are in conflict. While the police officer’s recollection was that

Arellano was the owner of the vehicle, Arellano’s defense counsel made the

exact opposite statement to the court. At the suppression hearing, the following

exchange occurred:

              The Court: [W]hy does your client have standing to argue the
      issue about whether the plate was removed in proper order?
              [Defense Counsel]: Well, my client is stating to make an
      argument based on despite the fact that there was someone else’s
      citation for lack of insurance, because the inventory—the search
      essentially showed a search of my client’s possession. He is
      challenging under recent cases I believe—
              The Court: He has standing to challenge under Fourth
      Amendment cases. This isn’t a Fourth Amendment case.
              ....
              The Court: I’ll direct the State to call witnesses, but what I’m
      hearing you tell me is that there’s no dispute that this vehicle was
      not owned by the defendant; is that correct?
              [Defense Counsel]: That is correct, Your Honor.
              The Court: There’s no dispute that he was not the driver that
      night; that’s undisputed?
              [Defense Counsel]: Correct, Your Honor.
              The Court: All right. So he was a passenger in the vehicle—
              [Defense Counsel]: Correct.
                                        12


(Emphasis added.)

       Although perhaps not as strong as a professional statement, I would

nonetheless rely on counsel’s direct answers to the court’s questions, given

these statements were never challenged nor corrected. See State v. Brewer,

247 N.W.2d 205, 212 (Iowa 1976) (describing a professional statement as a

“technique, used as a matter of convenience and practical necessity, to establish

a record of matters peculiarly within the knowledge of an attorney. In offering a

professional statement an attorney pledges the honor of his profession and his

personal integrity. It has the effect of an affidavit.”). The statements by defense

counsel to the court were that Arellano was not the owner of the vehicle.

Consequently, I disagree with the majority only with respect to its conclusion that

Arellano owned the car. However, because a passenger in a car does not have

standing to challenge an impoundment and search of another’s vehicle, I would

conclude Arellano’s appeal should be dismissed. See Halliburton, 539 N.W.2d at

342.

       Notwithstanding this impediment to appellate review, as a precaution—

that is, if Arellano’s attorney misspoke and Arellano actually was the owner of the

vehicle—it was appropriate for the majority to address Arellano’s issues. To that

end, I agree with the majority’s analysis and conclusion that the district court

properly denied Arellano’s motion to suppress.
