                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0319
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EZEKIAL CORTEZ PHILLIPS JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joseph M.

Moothart, District Associate Judge (motion to suppress) and Joel A. Dalrymple,

Judge (trial and sentencing).



      Ezekiel Phillips Jr. challenges the denial of his motion to suppress.

REVERSED AND REMANDED.




      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 State.




      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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DANILSON, Chief Judge.

       Ezekiel Phillips Jr. challenges the denial of his motion to suppress. The

State invoked the automobile exception to search the vehicle, arguing the officers

saw the passenger had an unsealed bottle of alcoholic beverage, which

established probable cause to search the vehicle for more evidence of an “open

container” violation. The warrantless search of the vehicle was unreasonable.

The motion to suppress should have been granted, and the evidence obtained is

inadmissible. We therefore reverse and remand.

       Because Phillips’ challenge to the district court’s denial of his motion to

suppress implicates his constitutional right to be free of unreasonable searches

and seizures, our review is de novo. State v. Kurth, 813 N.W.2d 270, 272 (Iowa

2012). “A de novo review constitutes ‘an independent evaluation of the totality of

the circumstances as shown by the entire record.’” State v. Tyler, 830 N.W.2d

288, 291 (Iowa 2013) (citation omitted).       We give deference to the factual

findings of the district court but we are not bound by such findings. Id.

       “Both the Fourth Amendment to the United States Constitution and article

I, section 8 of the Iowa Constitution prohibit unreasonable searches and seizures

by the government.” Id. Generally, a warrant is required for a search to be

lawful. See State v. Gaskins, 866 N.W.2d 1, 7 (Iowa 2015). “‘A warrantless

search is presumed unreasonable’ unless an exception applies.” Id. (quoting

State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997)).

       At about 12:40 a.m. on June 22, 2014, Waterloo Police Officer Mark

Nissen was on patrol with Sergeant Matt McGeough in what Officer Nissen

referred to as a high-crime area, which had experienced numerous problems in
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the evening hours. The officers observed a vehicle parked on the street with its

windows down. The officers could hear loud music one-half block away from the

vehicle; in passing the vehicle the officers determined the loud music was coming

from the parked vehicle.

      The officers traveled past the vehicle and then returned and observed

Phillips standing next to the vehicle. Sergeant McGeough approached Phillips

and Officer Nissen talked to a person in the passenger seat. Officer Nissen

requested the passenger’s identification. The passenger was reaching toward

the center console.    The officer stated it appeared the person was either

concealing or retrieving something from the center console area. Officer Nissen

knocked on the window and again asked for his identification. The person was

leaning forward and reaching to his left. Officer Nissen opened the door and

drew his Taser. The person was ordered out of the vehicle and was handcuffed.

At this point Officer Nissen observed a one-quarter-full bottle of alcoholic

beverage in the area where the person had been seated. Officer Nissen opened

the bottle and confirmed it contained an alcoholic beverage. Officers searched

the vehicle and discovered in the center console a cup with an alcoholic

beverage.   They also discovered a loaded .38-caliber revolver in the center

console.

      Phillips was charged with carrying a revolver in his vehicle, an aggravated

misdemeanor, in violation of Iowa Code section 724.4(1) (2013).       He filed a

motion to suppress, arguing the police officers found the revolver during an

unconstitutional search. The State invoked the automobile exception, arguing

the officers saw the passenger had an unsealed bottle of alcoholic beverage,
                                          4


which established probable cause to search the vehicle for more evidence of an

“open container” violation.    In response, Phillips argued there was no open-

container violation.

       After a hearing, the district court wrote:

              The court concludes that to the extent that a seizure
       occurred, the officers’ initial approach to the vehicle where the
       defendant was standing was based on specific and articulable
       cause to reasonably believe that music emanating from the car was
       in violation of Waterloo City Ordinance No. 4-5-4(A)(2). Said
       section prohibits operating any radio or similar device in a motor
       vehicle in a public right of way at a noise level in excess of 60 dBa
       at twenty-five feet. Officer Nissen’s observation of a quarter-full
       bottle of liquor provided officers with probable cause to believe that
       the driver and passenger of “a motor vehicle upon a public street”
       possessed an open or unsealed bottle in violation of Iowa Code
       Sections 321.284 and 321.284A. The subsequent search of the
       console area of the vehicle was based on probable cause to
       believe that the vehicle contained additional evidence of violation of
       said sections and the exigency of an automobile. State v.
       Bergmann, 633 N.W.2d 328, 338 (Iowa 2001). The discovery of
       the .38-caliber revolver was not the product of an illegal search and
       seizure.

       Phillips then stipulated to a trial on the minutes, was convicted of carrying

weapons, and now appeals.

       We begin our analysis by pointing out that we are not dealing with a traffic

stop based on a moving vehicle violation. Cf. Tyler, 830 N.W.2d at 298 (“Under

Terry, police may stop a moving automobile in the absence of probable cause to

investigate a reasonable suspicion that its occupants are involved in criminal

activity.” (citation omitted)). The vehicle was parked. We are not provided with a

copy of the noise ordinance, and thus, we are unable to determine the penalty for

a violation. But the State does not claim that the ordinance violation provided
                                               5


probable cause to search the vehicle. Here, the search was predicated on the

actions of the person sitting in the passenger seat of a parked car.

          On appeal, the State asserts, “When Officer Nissen saw [the person in

the passenger seat of the car] attempt to conceal a bottle of alcohol in the

defendant’s passenger seat, he witnessed an ongoing violation of Iowa Code

section 321.284A.” Officer Nissen did not state he made such an observation.

His testimony was: “I requested an identification card from him.” He was then

asked, “Okay.        And then what were [the man’s] actions after that?”               Officer

Nissen stated, “He began to slowly reach around to his left, and it appeared to

me he was trying to conceal something or retrieve something.” Officer Nissen

did not see the bottle until after he had ordered the man out of the vehicle. We

are not persuaded Officer Nissen had probable cause of an ongoing offense that

would allow a warrantless seizure of the man or search of the vehicle.

          Phillips argues the search was unreasonable because there was no “open

container” violation. He asserts the evidence shows the vehicle was parked and

he was not in the vehicle at the time the officers approached.                   Phillips also

asserts that the evidence does not support a finding that the engine was

running,1 which has been found to be an important factor in determining whether

one is operating a motor vehicle while intoxicated.

          Iowa’s open-container law provides, in part:

                 A driver of a motor vehicle upon a public street or highway
          shall not possess in the passenger area of the motor vehicle an
          open or unsealed bottle, can, jar, or other receptacle containing an
          alcoholic beverage. “Passenger area” means the area designed to
          seat the driver and passengers while the motor vehicle is in

1
    The district court did make a finding that the “vehicle had been running.”
                                         6


       operation and any area that is readily accessible to the driver or a
       passenger while in their seating positions, including the glove
       compartment.

Iowa Code § 321.284(1).

       It has been stated, “one can be convicted of operating while intoxicated

without ever having moved the vehicle.” State v. Massick, 511 N.W.2d 384, 387

(Iowa 1994) (citing State v. Webb, 210 N.W. 751, 751-52 (1926) (operating while

intoxicated conviction upheld where defendant was stopped by police just after

starting the car but before driving down the road)). Current case law provides

there is no “operation” of a motor vehicle within the terms of the OWI statute

unless the vehicle is in motion or the engine is running. State v. Boleyn, 547

N.W.2d 202, 205 (Iowa 1996);2 see also State v. Weaver, 405 N.W.2d 852, 853

(Iowa 1987) (finding the defendant was “operating” a motor vehicle when found

parked in the middle of the road with the engine running). “This is because we

have approved the definition of ‘operate’ as ‘the immediate, actual physical

control over a motor vehicle that is in motion and/or has its engine running.’”

State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998) (citation omitted).

       Acknowledging this line of cases, we still must emphasize that in all the

operating-while-intoxicated cases above, there was a person in the car in the

2
 This court has observed,
               In Boleyn, the defendant was found slumped over the steering
        wheel with the keys in the ignition at a cemetery, but Boleyn was not
        operating the vehicle when the officers encountered him. 547 N.W.2d at
        204. After officers aroused Boleyn, he admitted that he drove his vehicle
        to the cemetery where he was found. Id. The supreme court affirmed
        Boley’s [OWI] conviction, concluding there was substantial evidence that
        Boleyn had driven to the cemetery in an intoxicated condition. Id. at 206.
        Although the essence of Justice Snell’s dissent in Boleyn is appealing, it
        has never been adopted by our supreme court, and we leave that
        decision where it rightly belongs, with our supreme court.
State v. Munger, No. 12-0564, 2013 WL 2146454, at *4 (Iowa Ct. App. May 15, 2013).
                                            7


driver’s seat. A “driver” is defined as every person who is in actual physical

control of a motor vehicle upon a highway.” Iowa Code § 321.1(48). What the

open-container provision prohibits is “[a] driver of a motor vehicle upon a public

street or highway” from possessing an open container. Id. § 321.284(1). When

the officers approached the parked vehicle, Phillips was not in the car. There

was no “driver.” Even if the vehicle’s engine was running,3 it cannot be said that

Phillips was a driver when he is standing outside the vehicle.4 Officer Nissen

testified, “As McGeough and I passed, we observed presumably the driver,

Mister, Mr. Phillips standing next to the vehicle.” Because warrantless searches

are unreasonable under all but special circumstances, we are not inclined to

stretch the exceptions so far as to allow the search here on the basis of a

violation of Iowa Code section 321.284. See State v. Brown, No. 13–2054, 2015

WL 4468841, at *2-3 (Iowa Ct. App. July 22, 2015) (determining that “the open

container prohibition contained in Iowa Code section 321.284(1) does not apply

to privately-owned parking lots”).

       The State also relies upon section 321.284A(1), which addresses open-

container violations by passengers. That section states:

              A passenger in a motor vehicle upon a public street or
       highway shall not possess in the passenger area of the motor
       vehicle an open or unsealed bottle, can, jar, or other receptacle
       containing an alcoholic beverage. “Passenger area” means the
       area of a motor vehicle designed to seat the driver and passengers
       while the motor vehicle is in operation and any area that is readily
3
  We note that of the three police recordings of the encounter, there is no music audible.
Nor is there any way we can discern from the audio and video recordings that the
vehicle was running.
4
  The minutes of evidence state that at one point Phillips made his way back to the
driver’s side door and leaned into the vehicle. We do not believe leaning into the driver’s
side door constitutes actual physical control of the vehicle. The police recordings also
fail to support that anyone was in physical control of the vehicle.
                                          8


       accessible to the driver or a passenger while in their seating
       positions, including the glove compartment.

Iowa Code § 321.284A(1). The use of the term “passenger”—“a person who is

traveling from one place to another in a car, bus, train, ship, airplane, etc., and

who is not driving or working on it”5—infers motion of the vehicle. This definition

is consistent with the exceptions noted in Iowa Code section 321.284A(2):

               This section does not apply to a passenger being
       transported in a motor vehicle designed, maintained, or used
       primarily for the transportation of persons for compensation, or a
       passenger being transported in the living quarters of a motor home,
       motorsports recreational vehicle, manufactured or mobile home,
       travel trailer, or fifth-wheel travel trailer.

(Emphasis added.)

       Here, there was no driver, no one in actual physical control of the vehicle,

and no motion. Moreover, we highly doubt the legislature intended to crack down

on passengers more severely than the actual driver or operator of the motor

vehicle by imposing criminal liability without a driver or motion.

       We conclude the motion to suppress should have been granted.             All

evidence obtained in the subsequent search is inadmissible. We reverse the trial

court’s ruling denying the motion to suppress, and remand the case for further

proceedings consistent with this opinion.

       REVERSED AND REMANDED.




5
  See http://www.merriam-webster.com/dictionary/passenger (last visited November 3,
2016).
