                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0521
                              Filed March 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VICTORIA LYNN SELLERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.



      Victoria Sellers appeals from her conviction on one count of operating

while intoxicated. She claims the district court erred in denying her motion to

suppress evidence obtained as a result of the stop of her vehicle. REVERSED

AND REMANDED.



      Grant C. Gangestad of Gourley, Rehkemper, & Lindholm, P.L.C., West

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Adria Kester, until withdrawal, and Dan Kolacia, County

Attorney, and Kailyn Heston, Assistant County Attorney, for appellee.



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


POTTERFIELD, P.J.

       Victoria Sellers appeals from her conviction on one count of operating

while intoxicated. She claims the district court erred in denying her motion to

suppress evidence obtained as a result of the seizure of her vehicle.

       I. Factual and Procedural Background

       In the early morning hours of December 1, 2013, a sheriff’s deputy on

patrol observed a car facing the opposite direction on the roadway.                As he

passed the car, the deputy observed that the car was stopped. He was unsure

whether the car was stopped on the side of the road or on the traveled portion of

the road. He turned around to approach the car from behind because, in his

words, it “[j]ust seemed suspicious that there would be a car stopped . . . with the

lights on.” When he approached the vehicle from behind, he saw it was pulled

over completely onto the shoulder of the road. The officer believed the car was

about a quarter-mile to a half-mile farther down the road than it had been when

he had first observed it.

       As he pulled in behind the car, he turned a plain white spotlight onto the

car but did not turn on his forward-facing overhead lights to indicate he was an

officer or that the car was being stopped.1 After a pause, the driver used the left

turn signal to indicate her intention to merge back onto the road and go on her

way. The car shifted into gear and began to pull forward. The deputy then




1
  The officer did turn on his rear-facing flashing overheads to indicate to any oncoming
traffic that the patrol car was stopped on the side of the road. However, the officer
believed this would not have been visible to the driver of the stopped car in front of him.
                                           3


turned on his flashing overhead lights and seized the car. The driver immediately

ceased her attempt to merge back onto the road and fully complied with the stop.

          As a result of evidence obtained during the seizure, Sellers, the driver of

the car, was charged with operating while intoxicated (OWI). Sellers moved to

suppress all evidence obtained as a result of the stop, claiming the seizure was a

violation of her constitutional protection against unreasonable searches and

seizures. The district court held a hearing on the motion on January 28, 2014.

The evidence presented at the hearing consisted of a video recording of the

incident taken from the deputy’s patrol car camera and the testimony of the

deputy himself.

          In addition to the deputy’s testimony that it “[j]ust seemed suspicious that

there would be a car stopped . . . with the lights on,” he further testified he pulled

up behind the vehicle “to make sure whoever was in the vehicle was okay, didn’t

need medical attention.” He testified, “I was just stopping to check to see if she

needed assistance with anything.” However, after he pulled in behind Sellers’s

car, he did not check on her medical condition but instead called dispatch to run

her plates.

          After Sellers had signaled her intention to merge back onto the road and

proceed on her way, the deputy testified he then had a suspicion “[o]f either

medical condition or possibly OWI or an impaired driver at that time in the

morning.” He described the facts giving rise to his suspicion of an impaired

driver:

          Just the way that she stopped. Looked to me like [she] was
          stopped the first time in the traveled portion of the road. She had
          left where she was stopped the first time and then drove quarter to
                                          4


      half mile and then stopped again. That just raised my suspicions
      that something was going on.

He additionally noted that her attempt to go on her way and the early morning

hour contributed to his suspicions.

      The district court orally denied the motion to suppress at the end of the

hearing.   It explained, “The time of day, the manner of the stop just is very

unusual.” The court found the deputy had a reasonable suspicion that criminal

activity—i.e. OWI—was afoot under the circumstances.            It also found the

deputy’s seizure was supported as part of his community-caretaking function

because “there could be medical reasons for all of this to take place.”

      The court issued a written order confirming its oral denial of the motion to

suppress. Sellers waived a jury trial. She was convicted following a stipulated

trial on the minutes of testimony. She now appeals, asserting the district court

erred when it failed to suppress all evidence flowing from the traffic stop because

the seizure was unconstitutional.

      II. Standard of Review

      Sellers argues the stop violated her constitutional rights under both the

United States Constitution and the Iowa Constitution. U.S. Const. amend. IV;

Iowa Const., art. I, § 8. We review her claim de novo. State v. Kurth, 813

N.W.2d 270, 272 (Iowa 2012).          We make an independent evaluation of the

totality of the circumstances unique to her case as shown by the record. Id.

      III. Discussion

      The Fourth Amendment to the United States Constitution provides, “The

right of the people to be secure in their persons, houses, papers, and effects,
                                           5


against unreasonable searches and seizures, shall not be violated.”               That

provision is made applicable to the states through the Fourteenth Amendment.

See Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Iowa Constitution includes the

same relevant language as the Fourth Amendment. See Iowa Const., art. I, § 8.

         To comply with these constitutional mandates, “a search or seizure must

be conducted pursuant to a warrant issued by a judge or magistrate . . . [u]nless

an exception to the warrant requirement applies.” State v. Kreps, 650 N.W.2d

636, 641 (Iowa 2002). The deputy in this case had no warrant to seize Sellers,

so the district court relied upon two exceptions to the warrant requirement to

support the seizure. Sellers asserts that neither exception is applicable on the

facts of this case.

         A. Reasonable Suspicion

         First, a well-established exception to the warrant requirement “allows an

officer to briefly stop an individual or vehicle for investigatory purposes when the

officer has a reasonable, articulable suspicion that a criminal act has occurred, is

occurring, or is about to occur.”2 State v. Vance, 790 N.W.2d 775, 780 (Iowa

2010).     For an investigatory stop to qualify under the reasonable-suspicion

exception, “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
2
   Because the reasonable-suspicion exception only supports a stop to investigate
criminal activity, a seizure under this exception cannot be supported by the deputy’s
stated reason that he wanted to see if Sellers “needed assistance with anything” or by
his suspicion of a “medical condition.” These motivations could only support a
warrantless seizure under the community-caretaker exception discussed below. As to
the scope of our reasonable-suspicion analysis, therefore, we are limited to whether the
deputy’s suspicion of a possible OWI was reasonable.
                                              6

afoot.” Id. at 781 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “A mere hunch,

unparticularized suspicion, or curiosity will not justify an investigatory stop.” Id.

       We do not agree with the district court that the deputy had a reasonable

suspicion of criminal conduct. As to specific and articulable facts, the deputy

testified he was unsure of precisely what he saw upon his initial sighting of

Sellers’s car as he passed. He testified,

       [T]he first time I observed the vehicle I don’t know if it was over the
       side of the road or if it stopped in the traveled portion of the road;
       so all I can say is that when I pulled in behind the vehicle, it was
       pulled over off the highway at that point.

(Emphasis added.)        As the district court itself noted, “there [were] plenty of

reasons the car could be stopping.”

       The fact that Sellers had pulled over to the side of the road—even taken

together with the fact that Sellers attempted to go on her way prior to the formal

seizure—does not give rise to a reasonable suspicion that criminal activity is

afoot. Neither are there any rational inferences of such activity. The deputy’s

testimony was clear that he did not observe any traffic violations. 3 He did not



3
  The State argues for the first time on appeal the stop was supported by reasonable
suspicion because the deputy observed Sellers violating Iowa Code section
321.366(1)(f) (2013), which provides:
        It is unlawful for a person . . . on a fully controlled-access
        facility . . . [to s]top, park, or leave standing a vehicle, whether attended or
        unattended, upon the shoulders, or the right-of-way except at designated
        rest areas or in case of an emergency or other dire necessity.
Sellers argues she did not violate this provision because the road in question was not a
fully controlled-access facility, and section 321.366 therefore has no application to the
facts of this case. See Iowa Admin. Code r. 761-112.2(306A) (defining “fully controlled
access highway” as a highway with no permanent at-grade access and with permanent
access points only at interchange locations). However, we may not pass upon the
question of this provision’s applicability because the State did not raise it before the trial
court and the trial court did not consider or rely upon it. “Issues on appeal not raised in
                                            7


observe any suspect driving, such as Sellers having any difficulty maintaining her

lane. The vehicle was in working order, and there were no equipment failures

that violated the law.

       Based on the few specific and articulable facts in the record, the deputy

claimed the circumstances “just raised my suspicions that something was going

on.” We find the deputy’s expressed reasons for seizing Sellers with regard to

any criminal activity to be a “mere hunch” and “an unparticularized suspicion.”

See id. The State has not shown by a preponderance of the evidence that a

reasonable suspicion of criminal activity arose from the facts of this case;

therefore, the reasonable-suspicion exception to the warrant requirement cannot

support the deputy’s seizure of Sellers’s vehicle.

       B. Community Caretaking

       Second, the United States Supreme Court has crafted another exception

to the warrant requirement commonly known as the community-caretaking

exception. See Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Local police do

not run afoul of the constitution if they make a seizure pursuant to any proper

community caretaking functions, which “are totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal

statute.”4 Id. The Iowa Supreme Court has applied the exception to find some


the district court are deemed waived.” State v. Meyers, 799 N.W.2d 132, 147 (Iowa
2011).
4
  As a corollary to the limit of our scope of review on the matter of reasonable suspicion,
the scope of our review on the matter of the community-caretaker exception is likewise
limited to the deputy’s expressed intention to see if Sellers “needed assistance with
anything” or was experiencing medical issues. The deputy’s suspicion or investigation of
OWI is a criminal consideration and is therefore subject to the reasonable-suspicion—
and not the community-caretaker—exception to the warrant requirement.
                                           8

traffic stops proper—see, e.g., State v. Crawford, 659 N.W.2d 537, 543–44 (Iowa

2003)—and others improper—see, e.g., State v. Tague, 676 N.W.2d 197, 205–

06 (Iowa 2004).5

              [C]ommunity caretaking cases require a three-step analysis:
       (1) was there a seizure within the meaning of the Fourth
       Amendment?; (2) if so, was the police conduct bona fide
       community caretaker activity?; and (3) if so, did the public need and
       interest outweigh the intrusion upon the privacy of the citizen?

Crawford, 659 N.W.2d at 543. Only if we can answer all three inquiries in the

affirmative will the seizure be considered proper as an exception to the warrant

requirement. Id. The analysis is an objective one in which we consider the

unique circumstances confronting the deputy and determine whether his actions

were reasonable under those circumstances. Kurth, 813 N.W.2d at 277.

       As to the first step, it is uncontested that a seizure occurred when the

officer turned on his flashing overhead lights after Sellers signaled that she

intended to merge back onto the road.

       As to the second step, we must determine whether the officer’s conduct

constituted “bona fide community caretaker activity.”          Bona fide community

caretaking activity can take three forms: (1) emergency aid, (2) automobile


5
  Sellers argues the Iowa Constitution’s protection against unreasonable seizures should
be greater than that provided by the U.S. Constitution and the scope of the community-
caretaker exception should therefore be constrained in Iowa. Our supreme court has
used the community-caretaker exception in both the federal and state constitutional
context; however, it has not determined whether the “analysis would differ under the
Fourth Amendment” of the United States Constitution as opposed to analyses under the
analogous provision of the Iowa Constitution. See Kurth, 813 N.W.2d at 275 n.1;
compare Crawford, 659 N.W.2d at 543 (analyzing the exception under the Federal
Constitution), with Tague, 676 N.W.2d at 204–05 (analyzing the exception under the
state constitution). Without a definite distinction between the two analyses, we do not
reach Sellers’s challenge to the scope of the community-caretaker exception under the
state constitution.
                                           9

impoundment/inventory, and (3) public servant actions.            See Crawford, 659

N.W.2d at 541. Sellers’s vehicle was not being impounded or inventoried, so the

deputy’s seizure was only permissible if his actions reasonably constituted

emergency aid or public service.6

       To determine whether the deputy’s actions constituted bona fide

community caretaking activity, “we consider what [the deputy] knew at the

moment he stopped the [vehicle].” Id. at 543. The stop is not permitted unless

“the facts available to the officer at the moment of the seizure would have

warranted a reasonable person to believe an emergency [or public service need]

existed.” Id.

       In this case, there was no indication that any emergency was taking place.

The deputy testified the car appeared to be in good working order and he had not

observed any traffic violations, suspect driving, or anything else to suggest the

driver was injured.       His decision to first run Sellers’s plates instead of

immediately checking on her condition is inconsistent with his claim that he

suspected the driver might have needed medical assistance. See Kurth, 813

N.W.2d at 279 (“That action [of calling the driver’s plates in] seems inconsistent

with a public safety purpose but is certainly consistent with an investigative

purpose.”).     Neither was there any indication Sellers needed the deputy to

perform any public service function or to assist her. When Sellers signaled her




6
 As examples, “assisting a motorist with a flat tire might be an example of the public
servant doctrine, whereas providing first aid to a person slumped over the steering wheel
with a bleeding head gash would fall under the emergency aid doctrine.” Kurth, 813
N.W.2d at 277–78.
                                         10


intent to merge back onto the road and carry on her way, she also indicated she

did not require or expect any assistance from whoever had stopped behind her.

       Our case law indicates much more is needed to justify a seizure based on

an officer’s role as a community caretaker than appears in the record in this

case. In Kurth, our supreme court noted a community-caretaking function may

have justified a stop immediately after an officer observed a car hit a road sign,

but the community-caretaker need had disappeared prior to the seizure because

the car was already parked and the officer had already ascertained that no

significant damage to the car had occurred.        See id. at 278.    Likewise, the

deputy’s reliance on the community-caretaker exception in this case may have

justified a seizure of Sellers’s car when he first stopped behind her, but he did not

seize the car at that time. It was not until Sellers began to pull back on the

roadway that the officer initiated the seizure.

       In Tague, our supreme court held even a vehicle crossing an edge line of

a divided roadway is not sufficient to give rise to a concern of a fatigued driver

that would support a seizure under the community-caretaker exception. Tague,

676 N.W.2d at 205. Additionally, Tague, like the case before us, involved an

incident occurring in the early morning hours. Id. at 200. We are therefore not

persuaded by the State’s argument that the time of day in this case—

approximately 2:20 in the morning—adds weight to its community caretaker

argument.

       Typically, a seizure justified under the community-caretaker exception

involves either an officer acting on some reported information that a risk to the

community exists or the officer’s own direct observations of an emergency or
                                        11

public service need. See, e.g., Crawford, 659 N.W.2d at 543 (explaining the

officer’s actions resulted from a report that a male subject had taken pills, was

acting in an agitated and physically aggressive manner, was confused as to his

own whereabouts, and wanted the police to take him home); State v. Carlson,

548 N.W.2d 138, 142–43 (Iowa 1996) (discussing the officers’ actions, which

resulted from a missing-person report along with knowledge that the person

missing had been attempting to escape from a physically abusive relationship);

see also Kurth, 813 N.W.2d at 278 (citing favorably case law from other

jurisdictions in which officers’ direct perception of vehicle defects permitted them

to stop the drivers to inform them of the defect or dangerous condition).

However, the officer in this case observed no discernable issues with Sellers’s

car or driving and was not acting on any information or report.

      “[A]ctions under [the community-caretaker] exception must be limited to

the justification thereof, and the officer may not do more than is reasonably

necessary to determine whether a person is in need of assistance, and to provide

that assistance.”   Kurth, 813 N.W.2d at 278 (citations and internal quotation

marks omitted). The deputy in this case testified that he pulled up behind Sellers

“to check to see if she needed assistance with anything.” Once Sellers indicated

she did not need assistance by attempting to go on her way, the justification for

the officer’s community-caretaker function disappeared.

      At the moment he seized the vehicle, the facts available to the deputy

would not have reasonably caused him to believe an emergency existed or

Sellers needed his assistance in a public service capacity.          Therefore the
                                            12


community-caretaker exception to the warrant requirement does not support the

deputy’s seizure of Sellers’s vehicle.7

       IV. Conclusion

       The reasonable-suspicion and community-caretaker exceptions give

officers wide latitude in performing their societal functions, but that latitude

cannot be unlimited lest the exceptions subsume the rule. In this case, the State

has failed to show by a preponderance of the evidence that the deputy’s

suspicion, though he may have had one, rose to the level of a reasonable and

articulable suspicion.     The State has also failed to show the seizure was

necessary for the deputy to perform his role as a community caretaker.

       Therefore, in the absence of a warrant, the seizure of Sellers’s vehicle

runs contrary to her constitutional protection against unreasonable searches and

seizures. Evidence obtained as a result of the seizure must be suppressed. See

State v. McCoy, 692 N.W.2d 6, 23 (Iowa 2005) (“The exclusionary rule bars the

use of both evidence directly seized in an unlawful detention and evidence

discovered indirectly through the use of evidence or information gained in the




7
  Because the State’s reliance on the community-caretaker exception fails at the second
step of the analysis, we need not consider the third step—whether the public need and
interest outweighed the intrusion upon Sellers’s privacy. However, we note that the
weight of the public interest is heavily diminished in this case by the fact that there was
no evidence of a need for police intervention at the time of the seizure. We may not
weigh the value to the public interest retrospectively with the awareness in hindsight that
Sellers was impaired. We must weigh the public interest based on what the deputy
knew at the time of the seizure. See Crawford, 659 N.W.2d at 543. The State argues
that, “[h]ad Sellers not been impaired, the conversation would have quickly ended.” The
State’s use of the benefit of hindsight in its argument is contrary to the state of the law,
and its assertion is therefore unpersuasive.
                                      13


unlawful detention.”). We reverse and remand for further proceedings consistent

with this opinion.

       REVERSED AND REMANDED.
