                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1615
                           Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN PENN-KENNEDY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Todd A.

Hensley, District Associate Judge.



       John Penn-Kennedy appeals the judgment and sentence entered upon his

conviction of operating while intoxicated following a stipulated bench trial.

REVERSED AND REMANDED.




       Robert Tiefenthaler of Tiefenthaler Law Office, P.C., Sioux City, for

appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Patrick Jennings, County Attorney, and Jacklyn Fox, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vogel and Bower, JJ.
                                          2


DANILSON, C.J.

       John Penn-Kennedy appeals the judgment and sentence entered upon his

conviction of operating while intoxicated following a stipulated bench trial. He

contends the district court erred in denying his motion to dismiss for lack of

speedy indictment. We reverse and remand with instructions to grant the motion

to dismiss.

I. Background Facts and Proceedings.

       On January 19, 2012, officers responded to a 911 dispatch where the

caller stated he worked for the city, was at the Horizon, and there was a guy in

the parking lot that “can’t even walk,” had gotten in a car, and was getting ready

to leave. When police responded, John Penn-Kennedy was sitting behind the

steering wheel in a vehicle with the ignition on and the engine running.

According to Penn-Kennedy’s motion to dismiss, he was arrested for operating

while intoxicated (OWI) on January 19, 2012, and therefore the trial information

charging him with OWI filed on August 7, 2012, was untimely under Iowa Rule of

Criminal Procedure 2.33(2)(a).1 The State resisted, contending Penn-Kennedy

was arrested for public intoxication on January 19, and the subsequent trial

information for OWI was timely filed.

       Following a hearing at which testimony was presented, the district court

made the following findings:




1
  Rule 2.33(2)(a) provides: “When an adult is arrested for the commission of a public
offense, . . . and an indictment is not found against the defendant within 45 days, the
court must order the prosecution to be dismissed, unless good cause to the contrary is
shown . . . .”
                                 3


       1. That on January 19, 2012, Officer [Jeffrey] Harstad was
dispatched to the Horizon Restaurant due to a 911 call received by
the Communications Center.
       2. That the 911 caller indicated he saw a guy at the Horizon
who was stumbling around, that couldn’t walk, that was getting into
a car, and that was probably getting ready to leave.
       3. That Officer Harstad arrived at the Horizon Restaurant at
approximately 2:06 a.m.
       4. That Officer Harstad observed that Defendant smelled of
alcohol, had red watery eyes, and that he had a “sway” to his
person.
       5. That Officer Harstad performed the [horizontal gaze
nystagmus] HGN test on the Defendant who failed said test scoring
6 of 6 points.
       6. That Officer Harstad administered a [preliminary breath
test] PBT to Defendant which registered a .153 BAC.
       7. That Officer Harstad did not believe the area they were at
was conducive to conducting further field sobriety tests.
       8. That Defendant was arrested at the scene for Public
Intoxication and taken to the Law Enforcement Center.
       9. That Defendant was not advised at the time as to what
charge he was being arrested for.
       10. That Defendant fell down in the alleyway outside the [law
enforcement center] LEC and injured his foot.
       11. That Defendant was taken to the Emergency Room at
Mercy Medical Center.
       12. That Defendant was treated for his injury.
       13. That Officer Harstad invoked Implied Consent at
approximately 3:05 a.m.
       14. That Officer Harstad requested a blood sample from
Defendant at approximately 3:09 a.m.
       15. That Defendant then requested an opportunity to and
was allowed to call his attorney, Mr. Tiefenthaler, who he spoke to
for an extended period of time on the phone.
       16. That at around 4:00 a.m. Mr. Tiefenthaler arrived at the
hospital and spoke with the Defendant for five minutes or less.
       17. That Defendant refused to give a blood specimen but
agreed to provide a urine sample.
       18. That a urine sample (the first void) was collected at
approximately 4:10 a.m.
       19. That Officer Harstad made no effort to collect a second
void.
       20. That Defendant was booked into jail on the charge of
Public Intoxication.
                                        4


      Based upon these findings, the district court rejected Penn-Kennedy’s

argument that a reasonable person in his situation on January 19 would have

believed he was under arrest for OWI. The court concluded,

             Based on the statements of the 911 caller and his personal
      observations of Defendant, Officer Harstad had probable cause to
      arrest Defendant for Public Intoxication. Defendant was booked
      into the jail on a Public Intoxication charge and the Complaint and
      Affidavit was filed as to that charge (Exhibit 1). Officer Harstad’s
      statement to another Officer at the scene to save the video “under
      an OWI” was not an indication that Defendant was being arrested
      for an OWI, but was for the purpose of getting the video preserved
      for the longest period of time. Furthermore, Officer Harstad
      indicated on the Implied Consent Form (Exhibit 3) that the reason
      Implied Consent was being invoked was because of the PBT result,
      NOT because Defendant was being arrested for OWI. Additionally,
      the court agrees with the State’s argument that Defendant was (and
      can be) detained for OWI investigative purposes. See State v
      Dennison, 571 N.W.2d 492 (Iowa 1997). Based on all of the above,
      the court CONCLUDES Defendant was arrested for Public
      Intoxication and not OWI and therefore the 45 day rule was not
      violated.
             The court has reviewed State v. Miller, 818 N.W.2d 267
      (Iowa Ct. App. 2012), cited by Defendant. The court is unable to
      conclude that a reasonable person in Defendant’s position would
      have thought he was being arrested for OWI. Instead, like in Miller,
      a reasonable person would have thought he was being investigated
      further for OWI when he was being taken to the LEC. See Miller,
      818 N.W.2d at 276-77 (applying the State v. Wing, 791 N.W.2d 243
      (Iowa 2010), “reasonable person” test).

      The defendant filed a motion to enlarge. After arguments were heard, the

court made one additional finding of fact, “That when the first Officers arrived on

scene, Defendant was seated in his vehicle and the vehicle was running.”

However, the district court again denied the motion to dismiss.

      Penn-Kennedy was convicted of OWI after trial to the court on stipulated

evidence. He now appeals.
                                          5


II. Scope and Standard of Review.

         We review the district court’s denial of a motion to dismiss for lack of

speedy indictment for correction of errors at law. Wing, 791 N.W.2d at 246. “The

trial court’s findings of fact upon conflicting evidence are binding upon us if

supported by substantial evidence.” State v. Bond, 340 N.W.2d 276, 279 (Iowa

1983).

III. Discussion.

         Rule 2.33(2) provides:

                 It is the public policy of the state of Iowa that criminal
         prosecutions be concluded at the earliest possible time consistent
         with a fair trial to both parties. Applications for dismissals under
         this rule may be made by the prosecuting attorney or the defendant
         or by the court on its own motion.
                 a. When an adult is arrested for the commission of a public
         offense, . . . and an indictment is not found against the defendant
         within 45 days, the court must order the prosecution to be
         dismissed, unless good cause to the contrary is shown or the
         defendant waives the defendant’s right thereto.

         In Dennison, 571 N.W.2d at 493, the supreme court considered whether

the speedy indictment rule was violated under the following circumstances. On

April 6, 1996, an officer saw Dennison driving in a parking lot. Dennison, 571

N.W.2d at 493. The officer knew Dennison did not have a valid license, and

when the officer approached the car, he smelled alcohol and marijuana. Id. The

officer informed Dennison he was being arrested for driving with a revoked

license and open container. Id. He was read his Miranda rights, handcuffed, and

taken to the jail. Id. He was then taken to a room where another officer invoked

implied consent and obtained a urine sample from him. Id. Dennison was then

booked on the driving while revoked and open container charges and released.
                                           6

Id. More than two months later, on June 28, the officer received the toxicology

report results showing Dennison had marijuana in his system. Id. A complaint

was then filed charging Dennison with OWI, he was arrested, and the State filed

a trial information. Id. at 493–94. The district court granted Dennison’s motion to

dismiss. Id. at 494.

       On appeal, our supreme court determined Dennison was not arrested for

OWI purposes on April 6:

               In this case, we find it significant that the officers did not
       issue a citation or complaint charging Dennison with OWI on April
       6, the detention was for OWI testing, Dennison was detained for
       investigative purposes for a relatively short period of time, and
       Dennison was lawfully arrested on other charges. Clearly, his
       arrest on the other charges did not preclude the State from filing
       separate charges arising out of the same incident or episode after
       the forty-five-day period had expired.

Id. at 497 (emphasis added).

       In Wing, 791 N.W.2d at 247, the supreme court noted the statutory

definition of arrest found in Iowa Code section 804.52 and the “rigid notification

requirements” of arrest found in section 804.14.3 Emphasizing the question must

be determined on a case-by-case basis, Wing, 791 N.W.2d at 248, the court

stated:


2
  “Arrest is the taking of a person into custody when and in the manner authorized by
law, including restraint of the person or the person's submission to custody.” Iowa Code
§ 804.5 (2011).
3
  Iowa Code section 804.14(1) provides:
                A person making an arrest must inform the person to be arrested
        of the intention to arrest the person, the reason for arrest, and that the
        person making the arrest is a peace officer, if such be the case, and
        require the person being arrested to submit to the person’s custody,
        except when the person to be arrested is actually engaged in the
        commission of or attempt to commit an offense, or escapes, so that there
        is no time or opportunity to do so.
                                         7


              When an arresting officer does not follow the protocol for
       arrest outlined in section 804.14 and does not provide any explicit
       statements indicating that he or she is or is not attempting to effect
       an arrest, we think the soundest approach is to determine whether
       a reasonable person in the defendant’s position would have
       believed an arrest occurred, including whether the arresting officer
       manifested a purpose to arrest.

Wing, 791 N.W.2d at 249.

       In Miller, 818 N.W.2d at 268, this court was required to consider how Wing

applied to a situation where law enforcement “arguably had probable cause to

place the defendant under arrest for more than one offense.” We set out in detail

the facts surrounding Miller’s arrest for interference with official acts on October

15, 2010, and his subsequent arrest on April 15, 2011, for OWI arising from the

October 15 incident. See Miller, 818 N.W.2d 268-71. In district court, Miller

successfully moved to dismiss the OWI charge. Id. at 271. The district court

“relied on Wing . . . to determine that a reasonable person in Miller’s position

would have believed an arrest occurred.” Id.

       On appeal we observed, “Courts must determine on a case-by-case basis

whether a seizure constitutes an arrest, considering whether the suspects are

informed of their arrest, are handcuffed or booked, submit to authority, or believe

they are free to leave.” Id. at 272 (citing Wing, 791 N.W.2d at 248). We held,

       Because officers manifested a purpose to arrest [the defendant] for
       interference with official acts by issuing him a citation for that
       offense, but did not communicate an intention to arrest him for
       OWI, we conclude a reasonable person in [the defendant’s] position
       would not have believed he had been taken into custody on that
       second offense.

Id. at 268.
                                             8


       Keeping the above principles in mind, we review the circumstances

confronting Penn-Kennedy. Penn-Kennedy was approached by police while in

his vehicle, with the engine running. See State v. Lake, 476 N.W.2d 55, 56 (Iowa

1991) (holding there is no public intoxication violation where a “defendant was

occupying the privately owned motor vehicle either on the public street or in the

public parking lot” as the defendant “was in a conveyance to which the public

was not permitted access”). We note Officer Harstad agreed that if an individual

is in a vehicle they are not considered to be in public for purposes of public

intoxication.   Notwithstanding, the State contends the defendant was only

arrested for public intoxication.

       We decline to determine that a reasonable person would conclude he or

she was being arrested for public intoxication under these facts. Iowa Code

section 804.7 permits a warrantless arrest for a non-indictable public offense—

such as public intoxication—only when the public offense has been committed or

attempted in the officer’s presence, see Iowa Code § 804.7(1), or the offense has

in fact been committed and the officer has reasonable grounds to believe the

person committed it. Iowa Code § 804.7(2). Neither applies here because Penn-

Kennedy was not in public when the officers came upon the scene nor did the

officer have evidence that the offense of public intoxication “had in fact been

committed.”4 However, the officer had authority to make a warrantless arrest for


4
  At best, the officer had reasonable grounds to believe Penn-Kennedy had earlier been
in public by walking to his vehicle in a public parking lot before entering the vehicle—via
the statements of others. The dissent suggests that Iowa Code section 804.7(2) is
meaningless if the officer is unable to rely upon the statements of others. We disagree.
For example, an officer observing an individual with facial red marks and a bloody nose
may conclude that the individual was a victim of assault even though the officer did not
observe the assault. Similarly, an individual outside a retail store in possession of stolen
                                           9


OWI—an indictable offense. Iowa Code section 804.7(3) permits an officer to

make a warrantless arrest for an indictable offense such as OWI if the officer has

“reasonable ground for believing that an indictable public offense has been

committed and has reasonable ground for believing that the person to be

arrested has committed it.” Cf. State v. Boleyn, 547 N.W.2d 202, 205 (Iowa

1996) (noting definition of “operate” is the immediate, actual physical control over

a motor vehicle that has its engine running and that the reasonable grounds test

is determined under facts and circumstances known to the officers at the time the

implied consent law in evoked).

       In Miller, the basis for the citation issued was interference with official acts,

an offense that occurred in the officer’s presence. 818 N.W.2d at 275. Here,

Penn-Kennedy’s arrest can only be supported on the reasonable grounds that he

committed OWI. An officer with reasonable grounds to support an indictable

offense may of course charge the arrestee with a non-indictable offense. But

here, the State asks us to allow a law enforcement officer to forego the proper

protocol established in Iowa Code section 804.14 in informing an arrestee that

they are under arrest and the reason for the arrest, place the arrestee into

custody, and then grant the State a tolling of the speedy indictment time period




property from the store may be arrested for shoplifting even though the offense did not
occur in the officer’s presence. See State v. Adams, 554 N.W.2d 686, 690 (Iowa 1996).
In these examples, the officer can rely upon his or her own senses to conclude a
criminal offense has in fact occurred. Here, the officer could not conclude from his own
senses that Penn-Kennedy was ever in “public.” See Veatch v. City of Waverly, No. 13-
0147, 2013 WL 5962970, at *5-6 (Iowa Ct. App. Nov. 6, 2013).
                                         10


for the only offense supporting the arrest. We find this result disingenuous, and it

denies the defendant the benefits of the rule.5

       Our supreme court has stated that once arrested, the officer does not

have the ability to “unarrest” the defendant and thereby permit the State to avoid

the ramifications of the speedy indictment rule. State v. Davis, 525 N.W.2d 837,

840-41 (Iowa 1994) (“The State should not be able to disregard the time

requirements of [Iowa Rule of Criminal Procedure 2.33(2)(a)] just because it

released and said ‘never mind for now’ to defendant after he was arrested,

handcuffed, booked and detained for two hours.”). Similarly, once arrested, we

believe that if a defendant is arrested without a warrant and charged with an

offense for which there was no basis to make a warrantless arrest, the State

cannot rely upon such a charge to escape the ramifications of the speedy

indictment rule. In other words, although the State need not immediately file

charges for every offense for which they have probable cause, and may choose

to charge lesser offenses, the speedy-indictment time period begins unless the

officer was legally authorized to make a warrantless arrest for the actual charge

filed. Under our facts, the officer was not legally authorized to consummate a

warrantless arrest for public intoxication. Accordingly we can only conclude the

arrest was for the purpose of the OWI offense. To reach a contrary conclusion


5
  In Miller, 818 N.W.2d at 272, we stated, “Our cases have held that the speedy
indictment rule is activated when a person is arrested for the commission of a public
offense and does not extend to different offenses which have not resulted in arrest.”
However, our facts here differ from the facts in the cases we cited there, State v.
Edwards, 571 N.W.2d 497, 499-500 (Iowa Ct. App. 1997), and Dennison, 571 N.W.2d at
497, because without the reasonable grounds to arrest for OWI, Penn-Kennedy could
not have been arrested for public intoxication without a warrant. See Iowa Code §
804.7(1) & (2). In Edwards and Dennison independent grounds existed for the arrest on
the “different offenses.”
                                         11


would permit the State to avoid the ramifications of the speedy indictment rule

premised upon an illegal arrest.

       Furthermore, unlike Miller, there were also no announcements by the

officers at the scene suggesting or implying any crime other than OWI would be

charged. In fact, Officer Harstad acknowledged that the defendant could have

had a reasonable interpretation under the circumstances that he was being

arrested for OWI. Penn-Kennedy was given sobriety tests and a PBT. One

officer told the other, within hearing distance of the defendant, to save the video

under OWI. Penn-Kennedy was asked if he had ever been arrested before.

Penn-Kennedy was handcuffed and transported. Implied consent advisory was

invoked, and it states “there existed reasonable grounds to believe the above

person was operating a motor vehicle in violation of Iowa Code section 321J.2.”

A blood sample was requested and Penn-Kennedy ultimately agreed to a urine

test. Based upon these circumstances, we conclude that a reasonable person in

the defendant’s position would have believed they were arrested for OWI, not for

public intoxication as the district court found.        Moreover, Penn-Kennedy’s

warrantless arrest was only supported by reasonable grounds for the offense of

OWI. Consequently, because the indictment was filed beyond the forty-five-day

limit allowed in rule 2.33(2), we reverse the district court’s denial of the motion to

dismiss and remand for dismissal.

       REVERSED AND REMANDED.

       Bower, J., concurs; Vogel, J., dissents.
                                       12


VOGEL, J. (dissenting)

       Because I find the operative facts of this case legally indistinguishable

from Miller, 818 N.W.2d at 268, I must dissent from the majority decision. I would

affirm the decision of the district court finding no violation of the speedy-

indictment rule.

       As in Miller, police arguably had probable cause to place Penn-Kennedy

under arrest for more than one offense at the scene. See 818 N.W.2d at 268.

Police had received information from a witness who had called 911 to report

seeing a man, who was believed to be intoxicated, stumbling around in the

parking lot of a restaurant, getting into a vehicle, and starting it. When police

encountered the man in the running vehicle, they observed obvious signs of

intoxication including a failed field sobriety test and a failed PBT.        This

information supplied officers with probable cause to arrest Penn-Kennedy for

both OWI and public intoxication. However, just because officers had probable

cause to arrest on multiple offenses, did not mean that the arrest started the

speedy-indictment clock for all of the possible offenses. See id. at 272 (“Our

cases have held that the speedy indictment rule is activated when a person is

arrested for the commission of a public offense and does not extend to different

offenses which have not resulted in arrest.”); see also Dennison, 571 N.W.2d at

497 (“Clearly, [the defendant’s] arrest on the other charges did not preclude the

State from filing separate charges arising out of the same incident or episode

after the forty-five-day period had expired.”); Edwards, 571 N.W.2d at 500 (“An

arrest for one offense based upon probable cause but accompanied by other

motives does not convert the arrest into a different offense for the purposes of
                                       13


applying the speedy indictment rule.”).     In order to determine if the speedy-

indictment rule in this case was violated, we must determine what offense Penn-

Kennedy was arrested for.

      As in Miller, the officers did not inform Penn-Kennedy at the scene he was

being arrested for a particular offense.    Compare Miller, 818 N.W.2d at 275

(noting the officer did not make an explicit statement to the defendant that he

was under arrest for interference), with Dennison, 571 N.W.2d at 493 (noting the

officer informed the defendant he was under arrest for driving while his license

was revoked and open container).       So we must apply a reasonable person

standard to determine whether an arrest occurred and to determine for what

offense Penn-Kennedy was being arrested. Miller, 818 N.W.2d at 274. The

court must look to the totality of the circumstances. Id. We do not confine our

evaluation of the facts to a snap-shot in time when the handcuffs were placed on

the defendant at the scene as Penn-Kennedy asks for us to do. Id. at 275–77

(considering the facts of the encounter from the point of initial contact between

the defendant and police through the point the defendant was transported to

another hospital for committal purposes more than five hours later).

      The facts of this case indicate Penn-Kennedy was questioned by officers

outside of the restaurant. He was in his vehicle when officers arrived, but the

witness at the scene, who had called 911, reported that Penn-Kennedy could not

even walk, indicating he was outside of his vehicle in a public parking lot, and

Penn-Kennedy had retreated to his vehicle, started it up, and was probably

getting ready to leave. Penn-Kennedy admitted to the officers he had just driven

to the restaurant from a downtown bar and he wanted to get something to eat. A
                                           14


field sobriety test and a PBT were administered, and Penn-Kennedy failed both

tests. He was informed he would be transported to the ASAP office 6 to “do some

more stuff.” The officer explained he did not perform any more field sobriety

tests at the scene because it was “extremely frigid” and he did not believe it

would be a fair assessment of Penn-Kennedy’s condition. Penn-Kennedy was

asked if he had ever been arrested before, was handcuffed, and was transported

to the police station.

       Unlike the majority, I find these facts, specifically the officer’s reliance on

the statements of the witnesses at the scene who reported Penn-Kennedy was

outside his vehicle stumbling around unable to walk, sufficient to satisfy Iowa

Code section 804.7(2)—permitting a peace officer to make a warrantless arrest

“[w]here a public offense[7] has in fact been committed and the peace officer has

reasonable ground for believing that the person to be arrested has committed it.”

To hold as the majority does that the facts here are not sufficient to prove a

“public offense has in fact been committed” would mean an officer may not arrest

a person for a non-indictable offense that was not committed in the officer’s

presence. This would render section 804.7(2) meaningless as subsection (1)

already authorizes an officer to conduct a warrantless arrest where the offense

was committed in the officer’s presence. Under what other reading of subsection

(2) could an officer legally conduct a warrantless arrest for an offense not

committed in his presence, if unable to rely on the statements of others, along


6
  This was not defined for Penn-Kennedy.
7
  A public offense is defined under Iowa Code section 701.2 as “that which is prohibited
by statute and is punishable by fine or imprisonment. Clearly, public intoxication, which
is a simple misdemeanor crime, is a public offense.
                                         15


with observations at the scene, that an offense has in fact been committed? The

witnesses’ reports to police of Penn-Kennedy stumbling in public combined with

the officer’s observations of Penn-Kennedy’s apparent intoxicated state were

sufficient for the arrest under section 804.7(2).

       After Penn-Kennedy fell on his way into the police station, it was

discovered his foot needed medical attention. He was transported to the hospital

where the officer invoked the implied consent procedures, requesting first a blood

sample, which was refused, and then requesting a urine sample. See Dennison,

571 N.W.2d at 495 (noting that a defendant’s detention for the purpose of

performing field sobriety tests and the invocation of the implied consent

procedures do not require an arrest). The implied consent form signed by Penn-

Kennedy indicated the request was being made because Penn-Kennedy had

failed the PBT. The officer did not check the box on the form that stated implied

consent was being invoked because the person had been arrested for violating

the OWI statute—section 321J.2.

       Once the medical care was concluded and the urine sample obtained, the

officer informed Penn-Kennedy’s attorney, who had arrived at the hospital to

confer with his client, that Penn-Kennedy was being arrested for public

intoxication. The attorney advised Penn-Kennedy not to answer any questions.

Penn-Kennedy was then transported back to the police station where he was

booked into jail on a public intoxication charge. He was not cited or booked into

jail for OWI.

       While Penn-Kennedy may have considered the officer was investigating a

possible OWI when the implied consent procedures were invoked, that does not
                                        16


mean a reasonable person would think he was being arrested for OWI, especially

when that person is booked into jail on a different offense—public intoxication.

Just as in Miller, I find the determinative factor in this case to be Penn-Kennedy’s

receipt of the complaint and affidavit along with the fact he was booked into jail

for public intoxication, an offense different than the offense he challenges based

on the speedy-indictment rule. See Miller, 818 N.W.2d at 277 (“We find the most

determinative factor was Miller’s receipt of a citation for one offense and not the

other.”).

       These facts are effectively indistinguishable from Miller where a panel of

this court found a reasonable person would not believe the arrest was for OWI.

The district court in Penn-Kennedy’s case found the arrest to be based on the

crime of public intoxication and not OWI for speedy-indictment purposes.

Because       I   conclude substantial evidence    supports the district court’s

determination, I would affirm the district court’s denial of Penn-Kennedy’s motion

to dismiss.
