                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0750
                              Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW JOSEPH POOCK,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.



       A defendant appeals his conviction for operating while intoxicated, third

offense. AFFIRMED.



       Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC,

Cedar Falls, for appellant.

       Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



       Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       Matthew Poock appeals his conviction for operating while intoxicated, third

offense.    He challenges the district court’s denial of his motion to suppress

evidence obtained after he was stopped by a police officer. Because the record

shows the officer had reasonable suspicion to seize Poock to investigate a citizen’s

report of erratic driving, we affirm.

       I.     Facts and Prior Proceedings

       On a May evening in 2018, Bremer County dispatch received a 911 call

from Michela Siems-Dighton, an employee of the Cedar Falls school district. She

was playing on her recreational softball team at the Waverly ballfields when she

witnessed two men in a nearby car blasting music and “making idiots of

themselves.” They drove a white Chevrolet Traverse with personalized Hawkeye

license plates. She watched them drive by from the west, stop, and park near the

diamond. The two men left the car doors open and were “hooting and hollering”

while they went into a building with restrooms.1 They returned to the Traverse and

“sped away,” kicking up gravel on the drive. When they reached the paved road,

she heard their engine revving and their tires squealing. Siems-Dighton watched

the Traverse “swerving” back and forth across the road until it was out of sight.

       She then heard “a crash and a horn blaring, like laying on the horn.” She

called 911 after two people who saw the crash told her the Traverse had hit “what

they thought was a tree.” The occupants left the car and looked like they planned



1Siems-Dighton also testified she saw beer cans in the men’s hands when they
came out of the restrooms but she admitted she could not tell for sure what kind of
beverages they held.
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to run away but instead returned to the car and took off down an alley on the north

side of the adjacent swimming pool.

       After dispatch called Siems-Dighton back for more information, she

described the car’s occupants as two white men in their late twenties or thirties

wearing golfing attire—one dressed in a white polo shirt and black hat and the

other with a blue polo shirt and nice pants or shorts. They both wore golf shoes.

So she guessed they had come from a nearby golf course. Siems-Dighton said

she thought the plate number started with the letter “I.” Siems-Dighton estimated

the Traverse drove away about five minutes before the call to dispatch ended.

       Waverly police officer Holly Jacobsen responded to the call, estimating

seven to ten minutes elapsed from the time the Traverse left the ballfields until she

saw a vehicle matching the caller’s description. The officer was turning onto the

Bremer Bridge, about four blocks from the law center, when she spotted a white

Chevy Traverse with Hawkeye plates. But the license plate number did not start

with an “I”. The officer “made a U-turn to get behind the vehicle and look closer.”

As she followed the vehicle, she saw two white men inside, one wearing a white

shirt and one wearing a blue shirt. She did not notice any visible damage to the

vehicle. Not long after the officer started following it, the Traverse pulled into the

parking lot near State Bank and the Wooden Foot, a local bar. She continued past

the entrance but then made a U-turn back to the lot.

       By the time the officer entered the lot, the Traverse had parked and the

occupants were walking toward the bar. Officer Jacobsen did not turn on her

flashing lights or siren. As she pulled in, she “waved to the male in the white shirt”

and said either “hold up” or “hang on”—she couldn’t remember which phrase.
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Then, as she exited her patrol car, the man in the white shirt—later identified as

Poock—said, “How are you doing?” By the time the officer called to him, Poock

was about three parking spots away from the Traverse and headed toward the bar

but returned and met her “in the middle.” The officer asked “Hey, are you the white

Chevy—are you the white Traverse?” 2 He responded, “Yes,” and Jacobsen said,

“Can I talk to you for a second?” She asked where he had come from; he said he

had just picked up “Spencer,” pointing to his companion in the blue shirt.

         According to the minutes of evidence, the officer asked Poock for his

identification. He then told her they were heading to “the Foot for nachos after

golfing.” The officer recalled smelling “a strong odor of alcohol coming from him.”

When he removed his sunglasses, the officer saw his eyes were “very glassy, red

and bloodshot.” After conducting field sobriety tests, the officer arrested Poock.

         The State charged Poock with operating while intoxicated as a third offense.

See Iowa Code § 321J.2(2)(c) (2018).          Poock moved to suppress evidence

gathered during his exchange with the officer, alleging he was unlawfully seized.

The district court denied the motion, holding “the initial interaction between Officer

Jacobsen and Defendant did not amount to a seizure for Fourth Amendment

purposes.” Following a trial on the minutes, the court found Poock guilty as

charged. Poock appeals, challenging the suppression decision.

         II.    Scope and Standard of Review

         We review the suppression record and ruling de novo. State v. White, 887

N.W.2d 172, 176 (Iowa 2016). The Fourth Amendment to the United States


2   During her investigation, the officer noticed minor damage on Traverse.
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Constitution and article 1, section 8 of the Iowa Constitution protect a person

against unreasonable searches and seizures. U.S. Const. amend. IV; Iowa Const.

art. I, § 8; State v. Brown, 930 N.W.2d 840, 845, 846 (Iowa 2019). Poock does not

argue for a reading of the Iowa Constitution divergent from interpretations of the

United States Constitution. So we will use the same analysis for both. See State

v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008).

       III.   Analysis

       Poock contests the district court’s finding that his encounter with Officer

Jacobsen was not a seizure under the Fourth Amendment. He also argues the

officer lacked reasonable suspicion or probable cause to stop him.

       An officer “seizes” a person when the officer, “by means of physical force or

show of authority, has in some way restrained the liberty of a citizen.” State v.

Harlan, 301 N.W.2d 717, 719 (Iowa 1981) (quoting Terry v. Ohio, 392 U.S. 1, 19

n.16 (1968)). We assess whether a seizure occurred by examining the totality of

the circumstances. Wilkes, 756 N.W.2d at 842. Relevant factors may include “the

threatening presence of several officers, the display of a weapon by an officer,

some physical touching of the person of the citizen, or the use of language or tone

of voice indicating that compliance with the officer’s request might be compelled.”

Id. at 842–43 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

Police officers do not commit unreasonable seizures “merely by approaching

individuals on the street or in other public places and putting questions to them if

they are willing to listen.” State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004)

(quoting United States v. Drayton, 536 U.S. 194, 200–01 (2002)). “Even when law

enforcement officers have no basis for suspecting a particular individual, they may
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pose questions, ask for identification, and request consent to search luggage—

provided they do not induce cooperation by coercive means.” Id.

         The district court found Officer Jacobsen’s initial encounter with Poock was

voluntary because Poock had parked his car and Jacobsen did not execute a traffic

stop. Rather, according to the suppression ruling, Poock “initiated a conversation

with her” and admitted he was the owner of the Traverse before she asked him to

“hold up.”

         In our de novo review, we read the suppression transcript differently. Officer

Jacobsen testified that as she pulled into the parking lot she waved to the man in

the white shirt and asked him to “hold up” or “hang on.” It was not until after that

command that the man, later identified as Poock, engaged her in conversation. At

the suppression hearing, Officer Jacobsen agreed the “clear import” of her

directive was for Poock to stop so she could talk to him. She acknowledged if

Poock had kept walking rather than respond, she would have pursued him.

         Seizure is a close one here. On the one hand, Jacobsen had been following

Poock in a marked patrol vehicle and was wearing her uniform during their

encounter. On the other hand, she was alone and did not activate her lights or

siren.    See generally White, 887 N.W.2d at 177 (finding officer’s directive to

suspect to step off his porch onto the driveway was “mandatory” especially “in

conjunction with the flashing emergency lights and nearby patrol car”).

         Also in the balance, Officer Jacobsen did not make physical contact with

Poock, but she did use language that a reasonable person in his position would

have believed compelled compliance. See Brendlin v. California, 551 U.S. 249,

255 (2007) (measuring “coercive effect of the encounter” by asking whether “a
                                         7


reasonable person would feel free to decline the officers’ requests or otherwise

terminate the encounter” (citation omitted)). A uniformed officer’s command that

someone walking away “hold up” or “hang on” would likely constrain a reasonable

person to stop. Other courts have reached that conclusion. See, e.g., United

States v. Hood, No. 19-cr-315, 2020 WL 353859, at *4 (D.D.C. Jan. 21, 2020)

(finding “little discernable difference between the phrase ‘hold on a sec’ and

‘stop’—both command that the target stop moving”); State v. Bravo-Zamora, No.

109,998, 2015 WL 249838, at *8 (Kan. App. Jan. 9, 2015) (finding reasonable

person would not feel free to terminate encounter with officer by ignoring command

to “[h]ang on one second.”); People v. Verin, 269 Cal. Rptr. 573, 576 (Cal. App.

1st Dist. 1990) (finding seizure when officer demanded, “Hold on, Police”); Jones

v. State, 572 A.2d 169, 172 (Md. 1990) (holding street encounter was non-

consensual when single officer pulled up in marked car and called to bicyclist

“[h]old on a minute” or “[h]ey, wait a minute”). But we need not resolve the seizure

question. We may affirm on an alternative ground advanced by the State. See

State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012).

       Assuming without deciding Officer Jacobsen seized Poock, we find no

illegality because Jacobsen had reasonable suspicion to conduct a Terry stop.

See Terry, 392 U.S. at 21–22. To justify an investigatory stop, the State must

prove by a preponderance of the evidence that the stopping officer had “specific

and articulable facts, which taken together with rational inferences from those

facts, reasonably warrant[ed] that intrusion.” See State v. Baker, 925 N.W.2d 602,

611 (Iowa 2019) (alternation in original) (quoting Terry, 392 U.S. at 21).
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       Here, police received a citizen’s tip that the driver of a white Chevy Traverse

with Hawkeye license plates was acting like an “idiot” and driving erratically; the

named caller reported that the Traverse hit a tree and its two occupants

contemplated running from that crash scene. She expressed concern the pair had

been consuming alcohol. The caller gave a detailed description of the two men

and what they were wearing. The caller accurately described the vehicle, except

for the initial letter of the license plate. The caller also told dispatch the direction

of the Traverse’s travel.

       Acting on that tip, Officer Jacobsen located Poock’s white Traverse with

Hawkeye plates in less than ten minutes. She followed him briefly but observed

no dangerous driving. When he pulled into a parking lot and started walking toward

a bar, the officer decided to question Poock about the citizen’s report. As the State

argues, the officer had reasonable suspicion to do so. See State v. Kooima, 833

N.W.2d 202, 206 (Iowa 2013) (explaining reasonable suspicion can arise from

information less reliable than required to show probable cause).

       Importantly, the stopping officer aimed to investigate information provided

by an identified, citizen caller. Compare State v. Campbell, No. 13-0558, 2014 WL

1494906, at *2 (Iowa Ct. App. Apr. 16, 2014) (noting tipster was not anonymous,

but known and remained available so she could be held accountable for the

information provided), with Kooima, 833 N.W.2d at 211 (reversing conviction

where anonymous tipster did not relay contemporaneous observation of erratic

driving or any facts revealing driver exhibited any signs of intoxication). Courts

generally consider information imparted by a citizen informant to be reliable. See

State v. Ruhs, 885 N.W.2d 822, 827 (Iowa Ct. App. 2016).
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       That caller passed on personal observations of the driver’s erratic conduct.

And the caller shared enough details with dispatch to enable Officer Jacobsen to

track down the described vehicle in short order. A minor discrepancy involving the

license plate number did not defeat the officer’s reasonable suspicion. See State

v. Waters, 538 N.W.2d 862, 863 (Iowa Ct. App. 1995). As reported by Siems-

Dighton, the officer could see the driver of the Traverse was wearing a white shirt.

As that driver walked toward a bar, the officer had reasonable suspicion to stop

him to investigate the citizen report that impaired driving might have occurred.

       Because the officer did not violate the prohibition against unlawful search

and seizure, we affirm the district court’s ruling on the motion to suppress and

affirm the conviction.

       AFFIRMED.
