               IN THE SUPREME COURT OF IOWA
                               No. 17–1232

                         Filed October 19, 2018


STATE OF IOWA,

      Appellee,

vs.

JEREMY M. WERNER,

      Appellant.



      Appeal from the Iowa District Court for Iowa County, Patrick R.

Grady (motion to suppress), Andrew B. Chappel (trial), and Mitchell E.

Turner (sentencing), Judges.



      Defendant appeals his conviction for driving while his license was

revoked, claiming the district court erred in denying his motion to

suppress. REVERSED AND REMANDED.


      Brandon Brown and Gina Messamer of Parrish, Kruidenier, Dunn,

Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, and Peter

Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.



      Thomas J. Miller, Attorney General, David S. Gorham, Special

Assistant Attorney General, and Robin G. Formaker, Assistant Attorney

General, for appellee.
                                     2

MANSFIELD, Justice.

      This case, although procedurally different from Rilea v. Iowa

Department of Transportation, ___ N.W.2d ___ (Iowa 2018), presents many

of the same issues. A motorist was stopped in August 2016 by an Iowa

Department of Transportation (IDOT) Motor Vehicle Enforcement (MVE)

officer for speeding in a construction zone.        The MVE officer then

determined that the motorist’s driver’s license had been revoked pursuant

to Iowa Code chapter 321J. He arrested the motorist and took him to jail.

The motorist was charged with, and later convicted of, driving while

revoked in violation of Iowa Code 321J.21 (2016).

      This appeal presents the question of whether the motorist’s motion

to suppress evidence resulting from the stop should have been granted.

Echoing the arguments in Rilea, the motorist maintains that the district

court erred in finding the IDOT MVE officer had authority to stop and

arrest him.     He contends that IDOT MVE officers lacked authority in

August 2016 to engage in general traffic enforcement under Iowa Code

chapter 321.     He also contends that the stop and arrest cannot be

sustained as a citizen’s arrest under section 804.9.

      We conclude the motorist’s legal position is correct and, therefore,

reverse the denial of the motion to suppress and vacate the conviction and

sentence. In reaching this conclusion, we rely mostly on today’s decision

in Rilea, although we pause to consider a number of arguments raised only

in this case.

      I. Facts and Procedural History.

      On August 18, 2016, Ryan Glade, a MVE officer with the IDOT, was

on patrol in Iowa County. He saw a black BMW traveling eastbound on

I-80 at what appeared to be in excess of the posted speed limit of fifty-five

miles per hour for a construction zone. Officer Glade used a LIDAR (laser
                                       3

scanning) unit to detect the vehicle’s actual speed of seventy-two miles per

hour.

        Officer Glade pulled over the vehicle.      The defendant, Jeremy

Werner, was the driver and sole occupant of the vehicle. Werner admitted

that he did not have a driver’s license. Officer Glade ran a license check,

which indicated that Werner’s driving privileges had been revoked. Officer

Glade gave Werner a citation for speeding. Officer Glade also arrested

Werner and transported him to the Iowa County Jail in Marengo. That

day, Officer Glade filed a complaint charging Werner with driving while

revoked, a serious misdemeanor. See Iowa Code § 321J.21(1). A trial

information was filed on August 30.

        On December 20, Werner filed a motion to suppress, asserting that

Officer Glade was not authorized to make the traffic stop of his vehicle.

Following a hearing, the district court denied the motion to suppress on

April 27, 2017, for two reasons. First, the court explained that Officer

Glade was a peace officer within the meaning of Iowa Code sections

321.1(50) and 801.4(11). The court noted that Iowa Code section 321.492

authorizes a peace officer “to stop a vehicle to require exhibition of the

driver’s license of the driver” and “to serve a summons or memorandum of

traffic violation.” See id. § 321.492(1). Second, the court concluded that

“even if [Officer] Glade did not have the authority as an IDOT officer to stop

Werner’s vehicle, his conduct still resulted in a valid citizen’s arrest.” See

id. § 804.9(1).

        Thereafter, the parties agreed to a trial on the minutes of testimony,

and Werner was convicted of driving while under revocation. On July 17,

Werner was sentenced to serve two days in jail and to pay a $1000 fine

plus surcharges.
                                     4

      Werner appealed his conviction and sentence, claiming that his

motion to suppress should have been granted, and we retained the appeal.

      II. Standard of Review.

      When suppression of evidence is urged on statutory grounds, we

review for correction of errors at law. See State v. Lamoreux, 875 N.W.2d

172, 176 (Iowa 2016). We will affirm if “the court correctly applied the law

and substantial evidence supports the court’s fact-finding.” Id. (quoting

State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011)).

      III. Analysis.

      This appeal requires us to determine the lawfulness of a stop

performed by an IDOT MVE officer for speeding on August 18, 2016, before

Iowa Code section 321.477 was amended. The State maintains that the

IDOT was authorized to make the stop by virtue of authority previously

conferred by either Iowa Code chapter 321 or Iowa Code section 804.9. We

have generally explained why we disagree with those arguments in another

case decided today—Rilea.      Rather than repeat that discussion, we

incorporate it here by reference.

      This case presents some additional arguments not raised in Rilea,

however. We will now turn to them.

      A. Iowa Code Sections 801.4(11) and 321.492. First, the State

argues that Iowa Code section 801.4(11) and Iowa Code section 321.492,

when read together, gave Officer Glade the authority to pull over Werner’s

vehicle. The former defines “peace officers” to include “[s]uch employees

of the [IDOT] as are designated ‘peace officers’ by resolution of the [IDOT]

under section 321.477.” Iowa Code § 801.4(11)(h). The latter states, “A

peace officer is authorized to stop a vehicle to require exhibition of the

driver’s license of the driver, [and] to serve a summons or memorandum
                                       5

of traffic violation.” Id. § 321.492. Therefore, according to the State, IDOT

officers can stop vehicles for any “traffic violation.”

      In Merchants Motor Freight. Inc. v. State Highway Commission, we

held that the enforcement powers of the IDOT’s predecessor were

circumscribed by section 321.477. 239 Iowa 888, 892–93, 32 N.W.2d 773,

775–76 (1948).     In that case, we were not persuaded by the highway

commission’s reliance on Iowa Code section 321.492. Id. at 892–93, 32

N.W.2d at 776. We explained as follows:

      Appellants further contend that under Section 321.492, its
      employees, designated in Section 321.477, are given specific
      authority to act in regard to registration and licenses, it being
      their theory that these employees are peace officers. Section
      321.492 does grant to any peace officer the right to inspect
      registrations, but the fallacy of appellant’s position lies in the
      fact that the employees are not peace officers. Section
      321.1(45) defines a peace officer for the purposes of the
      chapter to mean “every officer authorized to direct or regulate
      traffic or to make arrests for violations of traffic regulations in
      addition to its meaning in section 748.3.” Section 321.1(65)
      defines Traffic to mean “pedestrians, ridden or herded
      animals, vehicles, street cars, and other conveyances either
      singly or together while using any highway for purposes of
      travel.” To say that, when the legislature conferred on certain
      highway commission employees “the authority of peace
      officers to control, direct, and weigh traffic on the highways”
      it intended to vest them with the authority conferred by
      Section 321.1(45) and Section 748.4 is without merit. The
      authority of the defendants, under the motor vehicle statutes,
      is limited to size, weight and load of vehicles and the trial court
      was correct in so holding.

Id.

      The State points out that the relevant statutes have changed since

Merchants Motor was decided in 1948. In 1976, the legislature adopted

our Criminal Code. 1976 Iowa Acts ch. 1245. In the Code, “peace officer”

was defined to include “[s]uch employees of the [IDOT] as are designated

‘peace officers’ by resolution of the [IDOT] under [Iowa Code section

321.477].” Id. ch. 1245, ch. 2, § 104 (codified as amended at Iowa Code
                                            6

§ 801.4(11)(h) (2016)). At the same time, Iowa Code section 321.1 was

amended to provide that “ ‘[p]eace officer’ means every officer authorized

to direct or regulate traffic or to make arrests for violations of traffic

regulations in addition to its meaning in [Iowa Code section 801.4].” Id.

ch. 1245, ch. 4, § 271 (codified as amended at Iowa Code § 321.1(50)

(2016)).     Thus, the State maintains that the 1976 enactment of the

Criminal Code has superseded the holding of Merchants Motor.

       We disagree. We do not believe the general assembly broadened the

authority of IDOT officers to encompass general traffic enforcement when

it adopted the Criminal Code in 1976. Iowa Code sections 80.22, 321.2,

and 321.477 were not changed in 1976. These provisions are specific and

they deny IDOT “peace officers” the authority to engage in general traffic

enforcement. See Iowa Code § 80.22 (“All other departments and bureaus

of the state are hereby prohibited from employing special peace officers or

conferring upon regular employees any police powers to enforce provisions

of the statutes which are specifically reserved by 1939 Iowa Acts, ch. 120,

to the department of public safety.”); see also Iowa Code § 4.7 (noting that

in the event of an irreconcilable conflict between a general provision and a

special provision, the special provision shall prevail).             We read section

321.492 as authorizing IDOT MVE officers “to serve a summons or

memorandum of traffic violation” when the subject matter of the violation

is otherwise within their enforcement power. 1

       Notably, even after the 1976 Criminal Code was adopted, we held

that “DOT officers’ power to intrude on individuals is strictly limited by the


       1As  Werner points out, the State’s interpretation would mean that probation
officers, parole officers, special security officers of regents institutions, conservation
officers, and certain employees of aviation authorities could all set up shop along the
interstate highways and ticket speeding vehicles. See Iowa Code § 801.4(11)(d), (e), (f),
(g), (i).
                                     7

Iowa Code to inspecting for registration, weight, size, load and safety

violations.” State v. A-1 Disposal, 415 N.W.2d 595, 599 (Iowa 1987) (citing

Iowa Code §§ 321.476, .477, .492 (1985)).

      B. School Bus Safety Statutes. Second, the State raises a concern

that IDOT MVE officers would be unable to protect schoolchildren who

have to take school buses to and from school. See Iowa Code §§ 321.372–

.380 (2016) (setting forth school bus-related requirements). But there is

specific language empowering all chapter 321 peace officers to enforce

these statutes. Iowa Code section 321.380 provides, “It shall be the duty

of all peace officers and of the state patrol to enforce the provisions of

sections 321.372 to 321.379.”      Id. § 321.380 (emphasis added).      This

comprehensive language makes clear that not only the department of

public safety, but indeed “all peace officers,” have the duty to enforce the

school bus provisions.

      C. Whether a Citizen’s Arrest Occurred. Third, because this case

(unlike Rilea) involves an actual arrest rather than just a speeding ticket,

the State insists that the actions of the IDOT MVE officer fall easily within

the parameters of a citizen’s arrest. The State notes that Officer Glade

took Werner to the county jail, which meant that he would have received

an initial appearance before a magistrate. See id. § 804.24 (requiring a

private person who has arrested another to take the arrested person before

a magistrate or to deliver the arrested person to a peace officer who may

take the arrested person before a magistrate accompanied by the private

person).

      Two problems exist with this argument. First, Officer Glade made

the stop as part of his official duties, not as a “private person.” See id.

§ 804.9. He detected the violation using LIDAR equipment and relied upon

his official status to pull over Werner. Second, there is no indication that
                                     8

Officer Glade himself went with Werner before a magistrate, as is required

for a citizen’s arrest. Iowa Code section 804.24 provides,

            A private citizen who has arrested another for the
      commission of an offense must, without unnecessary delay,
      take the arrested person before a magistrate, or deliver the
      arrested person to a peace officer, who may take the arrested
      person before a magistrate, but the person making the arrest
      must also accompany the officer before the magistrate.

Werner was incarcerated on August 18 and, according to the record in this

case, did not see the magistrate until the following day, August 19.

      D. Community Caretaking.           Fourth, the State urges that IDOT

MVE officers may engage in community caretaking activity in construction

work zones to assure the safety of all concerned. See Iowa Code § 313.12

(giving IDOT supervisory authority over construction on the primary road

system); see also State v. Coffman, 914 N.W.2d 240, 244–45 (Iowa 2018)

(discussing the community caretaking doctrine). The implication is that

IDOT officers should be able to make vehicle stops for safety purposes. We

do not foreclose the possibility that IDOT officers could make valid

community caretaking stops under some circumstances, although the

community caretaking doctrine is only a constitutional principle, not an

independent grant of statutory authority. This case, though, involved law

enforcement activity, not bona fide community caretaking. Cf. id. at 258.

Officer Glade acknowledged he was “patrolling” and observed a car

traveling at seventy-two miles per hour in a fifty-five miles-per-hour zone.

That prompted him to make the stop.

      E. A Stop for Driving While Under Revocation? Fifth, the State

argues that Werner could have been stopped by Officer Glade for driving

while under revocation in violation of Iowa Code section 321J.21 because

Iowa Code sections 80.22, 321.2, and 321.477 do not limit the

enforcement authority of IDOT MVE officers under chapter 321J.
                                     9

Whatever merit this argument may have in other contexts, there is no

indication Officer Glade knew or suspected Werner’s driver’s license had

been revoked for operating while intoxicated when he made the August 18

stop. See State v. Pettijohn, 899 N.W.2d 1, 15 (Iowa 2017) (“We determine

whether reasonable suspicion existed in light of the totality of the

circumstances confronting the officer, ‘including all information available

to the officer at the time the decision to stop is made.’ ” (quoting State v.

Vance, 790 N.W.2d 775, 781 (Iowa 2010))).

      Finally, we note the State does not contest that suppression is the

appropriate remedy if Officer Glade lacked authority to make the stop and

arrest of Werner on August 18.

      Accordingly, for the foregoing reasons, we vacate Werner’s

conviction and sentence, reverse the denial of his motion to suppress, and

remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.
