                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0726
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellant,

vs.

THADDEUS JOHN ELLENBECKER,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Winnebago County, DeDra L.

Schroeder, Judge.



      The State appeals the district court’s order granting the defendant’s

motion to suppress. AFFIRMED.



      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellant.

      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellee.



      Heard by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       The State appeals the district court’s order granting the defendant’s

motion to suppress statements made by Thaddeus Ellenbecker to law

enforcement.    The State claims the statements were voluntary and, if the

statements were not voluntary, the evidence would have inevitably been

discovered. We affirm the district court’s order.

I.     BACKGROUND FACTS AND PROCEEDINGS

       This is the second appeal arising from Ellenbecker’s November 2011

charges of burglary in the second degree and arson in the second degree.

Ellenbecker was tried separately on each charge and eventually convicted of

both charges. He appealed to our court and we reversed the convictions and

remanded for a new trial. See State v. Ellenbecker, No. 12-2229, 2014 WL

1999291, at *8–9 (Iowa Ct. App. May 14, 2014) (Ellenbecker I).          The facts

leading to Ellenbecker’s charges are detailed in our first opinion. Id. at *1–6. We

find it unnecessary to repeat the facts herein.

       In Ellenbecker I, we found the hospital interviews of Ellenbecker by law

enforcement were custodial interrogations in violation of his Miranda rights and

we remanded for a new trial, reasoning:

               Ellenbecker was in police custody at the time he was
       physically restrained and shot at his apartment complex. Not only
       did the DCI agents initiate contact with Ellenbecker in the hospital,
       their prior custodial actions put him in the hospital and an officer
       accompanied him on the ambulance ride to the hospital. Although
       the DCI agents were dressed casually and did not threaten or
       coerce Ellenbecker during questioning, it is undisputed there was a
       significant police presence at the hospital—basically he was “under
       guard.” For example, two officers, one of whom rode with
       Ellenbecker in the ambulance, were in the room when the DCI
       agents arrived. The ambulance-ride officer remained on the floor,
                                         3


       although he was not in the room during the agents’ questioning.
       But he returned to the room during both breaks the DCI agents took
       in their two-hour interrogation on that first night.
               Also on the first night, the DCI agents took the initiative to
       contact medical staff and arrange for Ellenbecker to have medical
       staff constantly present in his room after they left the hospital at
       1:35 a.m. The hospital complied and the medical staff person was
       in the room when different DCI agents returned in the morning to
       question him. Ellenbecker was arrested at 12:30 p.m., shortly after
       this questioning concluded.
               While the DCI agents told Ellenbecker the arrangement with
       medical staff was to insure he would not harm himself, objectively
       such a medical decision is within hospital expertise. The initiation,
       specific direction, and arrangements for staffing made by law
       enforcement leads to the conclusion Ellenbecker’s custody
       continued uninterrupted during his hospitalization. At no point
       during his hospital stay was Ellenbecker left alone in his room.
       Clearly, law enforcement acted to “monitor” his hospital stay. See
       [United States v.] Martin, 781 F.2d [671,] 673 [(9th cir. 1985)].
               Based on these facts and circumstances and using an
       objective test, a reasonable person in Ellenbecker’s position would
       have understood that he remained in police custody at the hospital,
       in spite of the agents’ frequent and continued assurances he had
       not been arrested when handcuffed and was not under arrest or in
       custody at the hospital. The October 20–21 hospital interrogations
       constituted custodial interrogations that needed to be preceded by
       Miranda warnings. No one fact is controlling but taken together, the
       facts compel this conclusion. Any statements made by Ellenbecker
       after he was taken into custody at the apartment complex are
       therefore inadmissible

Id. at *8–9.    We declined to address whether Ellenbecker’s incriminating

statements were involuntary because we found the custodial issue dispositive of

the appeal. Id. at *1 n.1.

       On remand, Ellenbecker demanded a jury trial and change of venue; both

were granted. Ellenbecker filed a motion in limine (which was later treated as a

motion to suppress) claiming the evidence from his illegally obtained statements,

specifically about a gun store and a gun part, should be excluded. The State
                                             4


resisted, claiming the evidence would have been discovered even without the

information obtained from Ellenbecker.

       The court held a suppression hearing on January 21, 2014, and entered a

ruling on January 26, granting Ellenbecker’s motion. The State filed a motion to

reconsider. Upon the State’s request, the district court held a full evidentiary

hearing on the motion. The court reaffirmed its earlier ruling. The State filed an

application for discretionary review, which was granted on June 5, 2015.

II.    STANDARD AND SCOPE OF REVIEW

       “Under both the State and Federal Constitutions,” we review constitutional

claims de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). This

review requires us to make an independent evaluation of the totality of the

circumstances as shown by the entire record, including the evidence presented

at the suppression hearing. State v. Lowe, 812 N.W.2d 554, 566 (Iowa 2012).

Because of the district court’s opportunity to evaluate the credibility of witnesses,

we will give deference to the factual findings of the district court, but we are not

bound by them. Id.

III.   MERITS

       A.      Voluntariness

       The State claims the district court improperly suppressed the statements

obtained from Ellenbecker because they were voluntary.1 Specifically, the State


1
  The State claims error is not preserved on any issue involving the Iowa Constitution
since it was not argued by Ellenbecker below. An issue must be raised and decided by
the district court to preserve error for appeal. Lamasters v. State, 821 N.W.2d 856, 863–
64 (Iowa 2012). “However, when a party does not indicate the specific constitutional
basis for a claim to which parallel provisions of the federal and state constitutions apply,
we regard both the federal and state constitutional claims as preserved.” State v. Ary,
___ N.W.2d ___, ___, 2016 WL 1391878, at *9 (Iowa 2016). We find Ellenbecker’s
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makes three claims on why the suppression was improper: (1) the confessions

were voluntary under controlling state and federal precedent because only the

most extreme instances of police coercion—the functional equivalent of torture—

require suppression under the Due Process Clause; (2) the precedent set by

United States v. Patane, 542 U.S. 630, 637 (2004), requires vacating the district

court’s suppression order; and (3) even if the statements were involuntary, the

State was permitted to use the statements for impeachment purposes.

       The State carries the burden of proof, by a preponderance of the

evidence, to demonstrate Ellenbecker’s statements were voluntarily. State v.

Hodges, 326 N.W.2d 345, 347 (Iowa 1982). The test for voluntariness is whether

the “totality of circumstances demonstrates that the statement was the product of

an essentially free and unconstrained choice, made by the defendant at a time

when his will was not overborne nor his capacity for self-determination critically

impaired.” State v. Vincik, 398 N.W.2d 788, 790 (Iowa 1987). “[C]oercive police

activity is a necessary predicate to the finding that a confession is not ‘voluntary’”

under the Fourteenth Amendment. Id. (quoting Colorado v. Connelly, 479 U.S.

157, 167 (1986)); see also State v. Hibdon, 505 N.W.2d 502, 505 (Iowa Ct. App.

1993). Other factors in determining voluntariness include:

              The defendant’s knowledge and waiver of his Miranda rights,
       the defendant’s age, experience, prior record, level of education
       and intelligence, the length of time defendant is detained and
       interrogated, whether physical punishment was used, including the
       deprivation of food or sleep, defendant’s ability to understand the
       questions, the defendant’s physical and emotional condition and his
       reaction to the interrogation, whether any deceit or improper


constitutional references in his motion in limine and the district court’s reliance on case
law invoking both the United States and Iowa Constitutions adequate to preserve error
for our review.
                                          6


       promises were used in gaining the admissions, and any mental
       weakness the defendant may possess.

Vincik, 398 N.W.2d at 790 (citation omitted); see also State v. Whitsel, 339

N.W.2d 149, 153 (Iowa 1983).

       Here, Ellenbecker claims the statements made to police officers at the

hospital, following being shot by law enforcement, were not voluntary. He relies

on the following reasons to show his statements were involuntary: he was in pain

from the gunshot wound, tired, and under the influence of pain medication; he

was interviewed multiple times throughout the night with little sleep; at times he

did not understand the officer’s questions; he was depressed and suicidal; and

he was in a vulnerable position due to being in the hospital.

       The State disagrees and claims in order for the court to exclude evidence

on voluntariness grounds it must be an extraordinary case where the police

conduct essentially amounts to torture of the defendant. We disagree.

       While intoxication is not singularly enough to render a confession

involuntary,2 the totality of the circumstances—including the involuntary nature of

Ellenbecker’s intoxication, the officers’ coercive treatment of him before and after

the shooting, and Ellenbecker’s mental state—supports a finding Ellenbecker’s

confessions were not voluntary.


2
  The common theme shared by these cases is the defendants voluntarily took some
sort of controlled substance, which induced their intoxicated state. See State v.
Countryman, 572 N.W.2d 553, 558–59 (Iowa 1997) (finding defendant, who voluntarily
ingested controlled substances, gave voluntary statements); State v. Edman, 452
N.W.2d 169, 171 (Iowa 1990) (finding the statements made by a drunk driver were
voluntary); State v. Wilson, 264 N.W.2d 614, 614 (Iowa 1978) (finding a defendant’s
statements, made while possibly under the influence of heroine, were voluntary due to a
lack of police coercion); State v. Rank, 214 N.W.2d 136, 137 (Iowa 1974) (finding
defendant’s unelicited statements made while high on a controlled substance were
voluntary).
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       In finding Ellenbecker’s statements were not voluntary, the district court

relied on the somewhat analogous case State v. Vincik.            While there are

differences between the factual background in Vincik and Ellenbecker, we find it

controlling. In Vincik, the defendant (Vincik) shot his wife and then shot himself

in the head. Vincik, 398 N.W.2d at 790. Vincik called 911 and was brought to

the hospital where he underwent “major surgery.”            Id.   Vincik remained

hospitalized following the surgery, and was arrested a few weeks later at the

hospital. Id. At that time, hospital personnel released Vincik (in a wheelchair) to

police custody; they believed Vincik was being taken to the Oakdale Medical

Classification Center for further treatment and a psychiatric evaluation. Id. at

791. Instead, the police took Vincik to the police station where he read and

signed “a standard rights waiver form.” Id. at 790. Vincik was then interviewed

for three hours. Id. He admitted to having “recent suicidal thoughts brought on

by” his past Vietnam War experiences and to murdering his wife. Id. At trial, a

neurosurgeon testified the type of brain damage suffered by Vincik usually

results “in a lack of inhibition and a lack of appropriate response to questions and

situations.” Id. at 791. The medical records showed Vincik had undergone a

“surgical procedure” and twenty milligrams of valium had been administered. Id.

The neurosurgeon testified this amount would make the “average male” “not

responsible” for any statements for six hours following this dosage. Id. Vincik

was also being administered the medications phenobarbital and Dilantin. Id. Our

supreme court found Vincik’s waiver of his Miranda rights and the statements

made to the police were involuntary. Id. at 793. In a combined analysis of the

two issues, the court reasoned:
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              Vincik’s confession was the product of tough police
       interrogation and a mind enfeebled by brain damage, a surgical
       procedure, fatigue, medication and drugs. We find credible the
       medical testimony concerning the severity of Vincik’s brain
       damage, the adverse effects upon him of the medication and drugs
       administered during the surgery that afternoon, and his infirm and
       fatigued mental and physical condition that evening. Vincik was not
       capable of giving to the interrogating police officers, and did not
       give, the kind of knowing and voluntary statement that could
       constitutionally be used in evidence against him.

Id.

       Here, reviewing the “totality of the circumstances,” we find Ellenbecker

received a similar “tough police interrogation,” amounting to the necessary

“coercive police activity.” See Connelly, 479 U.S. at 167. The length of the

police interrogation alone would be insufficient for our finding.        However, the

length of the interrogation, compounded by the fact law enforcement had shot

Ellenbecker prior to his confessions, the fact the officers declined to Mirandize3

Ellenbecker, and the continuous presence of law enforcement during

Ellenbecker’s hospital stay support our finding.

       In addition to the evidence supporting police coercion is the evidence

concerning Ellenbecker’s mental and physical state during the interrogation. The

evidence showed Ellenbecker received multiple dosages of various opioid based

pain killers immediately prior to the officers’ questioning.       Dr. Ron Larsen, a

psychiatrist and former chief medical officer at the hospital that provided

treatment to Ellenbecker, testified about Ellenbecker’s mental and physical state


3
  “[W]hether the State proved by a preponderance of the evidence that the statement
received was made by defendant after an effective waiver of his Miranda rights and
whether such statement was voluntary” are separate issues. Whitsel, 339 N.W.2d at
152. However, as previously noted, a failure to issue Miranda warnings is a factor to be
considered in the totality of the circumstances.
                                         9


during this time. Dr. Larson described the effect the opioid pain killers would

have on a patient in Ellenbecker’s condition:

              Given the amounts of medicines and the pain that we are
       talking about here, I do not let law enforcement agents speak to
       patients when they’re under this—the effects of opioids. To
       explain, opioids are known to cause euphoria, as I mentioned. It’s
       that up, floaty feeling. But they can also cause dysphoria. That’s a
       sadness or a down feeling or just a not being here kind of feeling.
              There’s also side effects. As I mentioned, these medicines
       cause side effects of what we call opioid intoxication, delirium.
       Now, we can talk more about delirium, but delirium is acute
       confusional state, so the medicines themselves cause confusions.
              And so what I’m concerned about is that due to these
       effects, then, any questions or statements or perceptions while
       under the effect of opioids can’t be counted on to be accurate.
       My—a person, you can’t count on their dreams or their nightmares
       to be accurate representations of what really happened. So the
       information that law enforcement would obtain, given the
       medications that we’ve talked about, would not likely be from the
       individual but from the altered mental state. I don’t know how to
       read that. Nobody knows how to do that. But I think it’s more likely
       to be from an altered mental state than—than from the person’s
       individual voluntary statements.
              And—and so I—I don’t see any benefit really for law
       enforcement to be involved until the opioids have been decreased,
       which we do in 24 to 48 hours, and then I would allow enforcement
       agents to speak with—with a patient to gather accurate information.

       Due to Ellenbecker’s mental and physical state, compounded by our

findings concerning the officers’ custodial interrogation in Ellenbecker I and the

officer’s coercive treatment, we conclude Ellenbecker’s statements to police were

not the product of an “essentially free and unconstrained choice.” See Vincik,

398 N.W.2d at 790. His “capacity for self-determination” was “critically impaired”

by the impact of the opioid drug on his already weakened mental and physical

condition—Ellenbecker’s will was overborn by the officers’ conduct. See id. We

affirm the district court’s suppression of Ellenbecker’s statements.
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       Because we have found Ellenbecker’s statements were involuntary, we

find Patane inapplicable.    Patane, 542 U.S. at 637 (“The [Self-Incrimination]

Clause cannot be violated by the introduction of nontestimonial evidence

obtained as a result of voluntary statements.”); see, e.g., State v. Chiavetta, No.

05-1911, 2007 WL 1828323, at *5 (Iowa Ct. App. June 27, 2007) (finding Patane

applicable since the defendant’s statements were voluntary).        Therefore, the

“fruits” of Ellenbecker’s statements are inadmissible.

       The State also claims, in the alternative, even if we find Ellenbecker’s

statements the evening of October 20 and the early morning hours of October 21

were involuntary, his statements made to police at 10:40 a.m. on October 21

were voluntary. We find error has not preserved on this issue as it was not

raised or ruled upon by the district court. See Lamasters, 821 N.W.2d at 863–64

(Iowa 2012).

       B.      Inevitable Discovery

       The State claims if Ellenbecker’s statements were not voluntary, the

physical evidence would have been inevitably discovered from an independent

source. Ellenbecker claims the State has not preserved error on this claim.

       “It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When a district

court fails to rule on an issue properly raised by a party, the party who raised the

issue must file a motion requesting a ruling in order to preserve error for appeal.”

Id.   “If the court’s ruling indicates that the court considered the issue and
                                         11


necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the

issue has been preserved.” Lamasters, 821 N.W.2d at 864 (citation omitted).

       Here, the State raised its inevitable-discovery argument in its resistance to

Ellenbecker’s motion to suppress. The issue was not explicitly raised at any of

the hearings leading up to the district court’s ruling on the motion to suppress.

The district court did not discuss this issue, even tangentially, in its ruling

granting Ellenbecker’s motion to suppress.       The State did not file a motion

requesting the district court to rule on this issue. Therefore, we find error has not

been preserved.

IV.    CONCLUSION

       We affirm the district court’s order granting Ellenbecker’s motion to

suppress. We find the State’s claim concerning the inevitable-discovery doctrine

has not been preserved for our review.

       AFFIRMED.
